Exhibit 10.1
REPRESENTATION AGREEMENT BEWEEN TRANSBOTICS CORPORATION AND XxxX LLC
This agreement (the "Agreement"), entered into as of September 7, 2001 is
between TRANSBOTICS Corporation ("TRANSBOTICS") formerly NDC Automation, Inc.
doing business at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, and XxxX LLC.
("RonI") doing business at 0000X Xxxxxx Xxxx, Xxxxxxxxx XX 00000.
Whereas: TRANSBOTICS supplies certain Automated Guided Vehicle System ("AGVS")
controls hardware, software and engineering services, excluding any products or
services of TRANSBOTICS discontinued after the date hereof, (the "Products") and
other proprietary designs.
XxxX distributes ergonomic lifters and automated equipment under proprietary
designs using the trade name Lift-o-Flex and Flex-o-matic.
Under this Agreement, TRANSBOTICS will provide engineering, design, supply,
implementation and support of AGV Systems, unless otherwise agreed.
Under this Agreement, XxxX will provide marketing and sales of AGV Systems
through their distribution network, unless otherwise agreed.
A. Agreement:
TRANSBOTICS appoints XxxX as an authorized sales representative for Transbotics.
XxxX accepts such appointment and agrees to act as TRANSBOTICS's representative
throughout the term of this Agreement. As to RonI's sale of Products to any
customers of the Products, the parties hereto will agree on the handling of such
sales on a job-by-job basis. In the case of business opportunities in other
areas outside its distribution network, the handling of such opportunities will
be handled on a case-to-case basis.
Both parties hereto will use their best efforts to promote sales of Products at
competitive prices and to inform each other of business opportunities for mutual
benefit under this Agreement.
B. Covenants of TRANSBOTICS:
Pursuant to RonI's written orders for Products, subject to the terms and
conditions as mutually agreed between the Parties from case to case (which Terms
and Conditions shall supplement but not amend the terms set forth in this
agreement), TRANSBOTICS will supply products and any other equipment that is
accepted and confirmed by both parties for the sale through XxxX according to
the timeline agreed to by XxxX and TRANSBOTICS.
Pursuant to RonI's written orders for Products, subject to the terms and
conditions as mutually agreed between the parties from case to case, TRANSBOTICS
will provide engineering services for the implementation and support of
Products.
TRANSBOTICS will set all prices to XxxX for the Products that XxxX elects to
purchase from TRANSBOTICS.
TRANSBOTICS agrees to hold XxxX, its officers, employees, and agents harmless
from and against and indemnify XxxX for all liability, loss, costs, expenses or
damages caused by reason of any defects in design and manufacture of the
Products (except as to those Products designed and manufactured by XxxX).
TRANSBOTICS is to place XxxX on its liability and product liability insurance
policy as and additional insured, except for claims arising out of faulty design
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or manufacture of RonI's products. TRANSBOTICS will also provide XxxX with a
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copy of the certificate of workmen's compensation insurance.
Upon acceptance and confirmation by TRANSBOTICS, TRANSBOTICS warrants to XxxX
that TRANSBOTICS's products will comply with all specifications established by
RonI's customer. Such warranty shall last for the duration of RonI's warranty
("maximum one year") to its customer pertaining to TRANSBOTICS's equipment.
C. Covenants of XxxX:
XxxX shall market and sell the Products as supplied by TRANSBOTICS. All other
mechanical equipment that TRANSBOTICS supplies will be marketed on an
application per application basis. XxxX will use their best efforts to
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generate sales for TRANSBOTICS.
XxxX may provide installation services as agreed with TRANSBOTICS and will have
sole authority to quote and set the equipment sales price and the installation
price as to the Products to the Customers. No representation, warranty, or other
commitment by XxxX in connection with such re-sales in excess of the terms and
conditions agreed between the Parties from case to case will be binding on
TRANSBOTICS without its prior written approval. XxxX will provide launch support
for the Products to the Customers.
XxxX agrees to fully perform all of its obligations to its customers under
contracts for the sales of Products.
XxxX will work as a team with TRANSBOTICS for all launch support. Launch support
is presence of a qualified technician during a time period, to be specified by
the customer, at the initial production use of the device.
XxxX will provide after sales support, including warranty service, to the
Customers, and xxxx the Customers direct for non-warranty services. Warranty
service shall be handled in accordance with the warranty terms and procedures
agreed upon between the Parties.
XxxX agrees to hold TRANSBOTICS, its officers, employees, and agents harmless
from and against and indemnity TRANSBOTICS, its officers, employees, and agents
for all liability, loss, costs, expenses or damages caused by reason of any
neglect in installation or service of the Products covered by this Agreement, or
the making by XxxX of any representation or warranty in excess of those
permitted or authorized by TRANSBOTICS under this Agreement or under the terms
and conditions agreed between the Parties from case to case, except for claims
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arising out of faulty design or manufacture of TRANSBOTICS products. XxxX is to
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place TRANSBOTICS on its liability and product liability insurance policy as an
additional insured, except for claims arising out of faulty design manufacture
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of TRANSBOTICS products. XxxX will also provide TRANSBOTICS with a copy of the
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certificate of workmen's compensation insurance.
Upon termination of this Agreement, any proprietary information (including trade
secrets) developed, owned of licensed by XxxX prior to and/or during this
Agreement shall remain the exclusive property of XxxX. Any proprietary
information (including trade secrets) developed by TRANSBOTICS prior to and/or
during this Agreement shall remain the exclusive property of TRANSBOTICS.
TRANSBOTICS retains the elusive right title worldwide to any improvement,
invention, copyright, patent, trade secret or other intellectual property
developed or arising from the Products in connection with the parties'
performance under this Agreement (a "Development"). Intellectual property in
RonI's equipment that interfaces with TRANSBOTICS's products shall belong
exclusively to XxxX. Intellectual property in TRANSBOTICS's products that
interfaces with RonI's equipment shall belong exclusively to TRANSBOTICS. No
license is granted by TRANSBOTICS to XxxX regarding any Development, and XxxX
waives and releases, and hereby assigns to TRANSBOTICS, any and all copyright,
patent other proprietary right that XxxX may hereafter have, directly or
indirectly, to any such Development. XxxX will market the Products under such
product names, trademarks and logos as may be directed by TRANSBOTICS and will
identify all Products as those of TRANSBOTICS. TRANSBOTICS will not use RonI's
and XxxX will not use TRANSBOTICS's trade or service marks without prior written
consent of the other party.
In the case of technology, equipment or solutions being jointly developed by the
two parties and/or in case one party wishes to manufacture on behalf of the
other, the terms and conditions for such events shall be agreed upon in a
separate agreement.
Agreement shall survive the execution of this Agreement and shall continue in
full force and effect until the later of the date of the termination of this
Agreement or the completion of the parties' obligations hereunder.
Notwithstanding anything to the contrary in this paragraph, the following
paragraphs shall survive expiration or termination of this Agreement: Fourth
paragraph of Section B, Sixth and Seventh paragraph of Section C, Section F,
Section K, Section L, Section N and Section O. In addition, all obligations of
each party that have accrued prior to termination or that are of a continuing
nature will survive such termination.
XxxX shall notify TRANSBOTICS promptly in writing of any adverse or unexpected
results or any actual or potential damage, claim or lawsuit relevant to a
Product and, if and to the extent requested by TRANSBOTICS in writing, XxxX
shall suspend distribution of any Product. XxxX will also promptly notify
TRANSBOTICS of any infringement of any trademarks, copyrights, patents or other
proprietary rights relating to the Products.
RonI's failure to give notice to TRANSBOTICS will not affect TRANSBOTICS's
obligation under this Agreement, unless TRANSBOTICS can demonstrate actual
prejudice rising from the failure to give notice.
D. Term of this Contract:
This Agreement is for two (2) years commencing on the date first above written
and will automatically be renewed year to year unless either party gives at
least 90 days written notice of termination. (See Section E).
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E. Termination:
Either party may terminate this Agreement after the two years' initial term for
any reason, with at least 90 days prior written notice at any time after such
initial term. In addition, this Agreement may be terminated by either party for
cause immediately by written notice upon the occurrence of any of the following
events: (i) if the other party ceases to do business, or otherwise terminates
its business operations; (ii) if the other party breaches any material provision
of this Agreement and fails to fully cure such breach within 30 days of its
receipt of written notice describing the breach; (iii) if the other party
becomes insolvent or seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, or if any
such proceeding is instituted against the other; (iv) in case of TRANSBOTICS's
termination, misuse of any trademark or logo of TRANSBOTICS; (v) in case of
change of control or ownership of the other party, except in the event Xxxxxx
Xxxxxxx remain in control of XxxX; or (vi) in case of competitor of one party
acquires an equity position exceeding ten (10) percent of the other party.
Termination is not the sole remedy under this Agreement and, whether or not
termination is effected, all other legal, equitable and contractual remedies
will remain available.
F. Dispute:
Any dispute or controversy which may arise between the parties hereto out of or
in relation to or in connection with this Agreement will be submitted to
arbitration in the defending party's state, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, before a maximum of
three (3) arbitrators appointed pursuant to such rules, and that determination
of such arbitrators shall be final, binding and conclusive on the parties.
Judgment upon the award of the arbitration may be entered by and court of
competent jurisdiction.
G. Notice
Notice under this Agreement shall be sent in writing by U.S. Mail certified or
registered, with return receipt requested, to:
Transbotics Corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Or to: RonI LLC
0000X Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
H. Force Majeure:
TRANSBOTICS will not be held responsible or liable for delays in delivery
Products where forces outside their control affect the situation, such as fire,
war, and other acts of god. In the event of a Product shortage, TRANSBOTICS
shall have the right to allocate its available Products among its distributors
and other customers (including itself) in such manner, as TRANSBOTICS considers
advisable, as long as TRANSBOTICS meets it's agreed upon timeline.
I. Entire Agreement:
This Agreement, together with the Exhibits hereto, constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior oral or written agreements with respect to matters
provided for herein. This Agreement shall not be amended, altered or modified
except by an instrument in writing duly executed by the parties hereto.
J. Non Assignable:
This Agreement, or any part hereof, shall not be assignable, whether by
operation of law otherwise, by either party hereto without the prior written
consent of the other party. Any such assignment without consent will be null,
void and of no force or effect.
K. Exclusive Business Entities:
Nothing in this Agreement is intended to be construed so as to constitute XxxX
and TRANSBOTICS as partners or joint ventures, or either party hereto as the
employee, agent, franchisee or legal representative of the other party. The
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parties hereto expressly understand and agree that XxxX is an independent
contractor in the performance of each and every part of this Agreement, is
solely responsible for all of its employees and agents and its labor costs and
expenses arising in connection therewith. TRANSBOTICS is in no matter associated
with or otherwise connected with the actual performance of this Agreement on the
part of XxxX, nor with RonI's employment of other persons or incurring of other
expenses.
L. Representation or Warranties:
XxxX agrees not to make any representations or warranties relating to
TRANSBOTICS's products other that those expressly set forth in this Agreement
without TRANSBOTICS's prior written approval.
TRANSBOTICS warrants only to XxxX that the Products shipped to XxxX by
TRANSBOTICS will confirm to the warranties and representations set forth in the
terms and conditions agreed between the Parties from case to case. TRANSBOTICS
MAKES NO OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS AND DISCLAIMS ALL OTHER
WARRANTIES EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
M. Conflicting Terms:
RonI's purchase orders or mutually agreed change orders shall be subject to all
provisions of this Agreement, whether or not the purchase order or change order
so states. Except as otherwise agreed by the parties in writing after the date
of this Agreement, all purchases of Products from TRANSBOTICS by XxxX are
subject only to the terms and conditions agreed between the Parties from case to
case, notwithstanding any conflicting term herein or in any purchase order of
XxxX.
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N. Limited Liability; Waiver:
Neither party will be liable for and each party hereby waives and releases any
claims against the other party for any indirect, special, incidental, punitive,
contingent, or consequential damages, including lot sales, revenues or profit,
loss or return of or damage to product, loss of facilities, inventory,
work-in-process, or time and materials, or loss of prospective economic
advantage, arising from any performance or failure to perform under this
Agreement.
Notwithstanding the above, neither party waives the right to claim reimbursement
by the other party for damage claims of the customer, if customer's claims arise
out of the failure to perform by the other party.
O. Covenant not to compete:
During the term of this Agreement, XxxX agrees not to manufacture, market,
distribute or sell any other products identical or similar to the Products.
P. General:
This Agreement will not create any right in or obligation to any third party.
This Agreement will be governed by and construed in accordance with the internal
laws of the State of North Carolina, without regard to the principles of
conflicts of laws thereof. If any provision of this Agreement is held by a court
of competent jurisdiction to be illegal, invalid or unenforceable, that
provision shall be limited or eliminated to the maximum extent possible and this
Agreement shall otherwise remain in full force and effect and enforceable.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed on its behalf by a duly authorized officer as of the day and year first
above written.
TRANSBOTICS: XXXX:
TRANSBOTICS CORPORATION. XXXX, LLC
BY: ___/s/ Xxxxxx Xxxxxxx BY: __/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
President President
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