Homeland Integrated Security Systems, Inc. SALES REPRESENTATIVE AGREEMENT
Exhibit
10.15
THIS
AGREEMENT Is made and entered into as of the 22nd day of June , 2005, by and
between HISS, a Florida corporation ("HISS"), a d HISS I ("Representative"),
(Homeland Integrated Security Systems, a corporation organized and existing
under the laws of Florida.
X.
XXXX
designs and/or manufactures security system software and products, including
Cyber Tracker, Radiation Detection equipment, and cellular phones.
B.
Representative represents that it Is familiar with the market for HISS's
products and wishes to act as a sales representative for HISS's Products (a
defined below) in the Territory (as defined below).
NOW,
THEREFORE, in consideration of the mutual promises and mutual covenants
exchanged, the parties hereby agree as follows:
1.
Definitions. As used herein:
1.1
"Products" shall mean those standard SAW/GC Systems and accessories and related
products offered by HISS for sale in the Territory which are listed in Exhibit
A
attached hereto, as the same may be amended or modified from time to time by
HISS in its sole discretion.
1.2
“Territory” shall mean the geographical area or areas described in Exhibit B
attached hereto, as the same may be amended or modified from time to time by
duly authorized representatives of the parties hereto in writing.
1.3
"Net
Xxxxxxxx" shall mean all amounts invoiced in respect to the sale of Products
actually shipped to a customer, less actual discounts, credits, refunds and
allowances made, freight, transportation, C.O.D., insurance and similar charges,
manufacturers warranty charges. and any applicable sales, use or other similar
taxes.
1.4
"Bookings" shall mean orders from customers that have-been received,
acknowledged and accepted by HISS and scheduled for shipment to the
customer.
1.5
"Commissions" shall mean Representative's compensation for performance of Its
duties hereunder at the rates set forth in Exhibit A attached hereto, as the
same may be amended or modified from time to time by HISS in its sale discretion
by giving at" least thirty (30) days' prior. written notice to Representative
before such change becomes· effective. The new commission rates shall apply to
all orders received or dated after the effective date of such
notification.
1.6
"House Accounts" shall mean those customers for or purchasers of HISS Products
which are located within the Territory and which are designated from time to
time in writing by HISS as House Accounts. House Accounts designated by HISS
at
the time of execution of this Agreement are set forth In Exhibit B attached
hereto. HISS may in its sole discretion designate other customers as House
Accounts by giving Representative at least ten (10) days prior written notice
of
such designation before such designation becomes effective.
1.7
"Regular Accounts" shall mean those customers for or purchasers of HISS Products
which are not defined in Section 1.6 above and shall be serviced by the
Representative.
1
1.8
"Industrial Distributor" shall mean those persons, firms or organization~
purchasing HISS Products for resale to customers in the Territory (excluding
House:
Accounts)
in accordance with distributorship agreements entered into from time to time
with HISS.
1.9
"Confidential Information" shall mean all information made available by HISS
to
Representative, Its agents or employees, in connection with this Agreement
which
HISS protects against unrestricted disclosure to others and which: (i) if in
written or other tangible form, is clearly designated as "Confidential"; or
(ii)
if disclosed orally, Is designated as "Confidential" in a written memorandum
delivered by H 15S promptly following such oral disclosure. By way of
Illustration, but no limitation, Confidential Information may include
proprietary technical data and concepts, vendor and customer information,
financial information and marketing data.
2.
Sales
Agency Arrangement.
2.1
Appointment. HISS hereby appoints Representative as HISS's nonexclusive sales
representative to solicit orders for Products in the Territory) and
Representative hereby accepts such appointment, subject to the terms and
conditions of this Agreement. Notwithstanding the foregoing, HISS reserves
the
right during the term of this Agreement to sell Products directly to House
Accounts without paying Commissions to Representative.
2.2.
Solicitation of Orders.
(a)
Representative agrees to use its diligent and best efforts to solicit orders
and
promote sales of Products in the Territory and to devote such time and e1\fort
to such activities as is reasonably necessary to provide coverage for existing
and potential accounts within the Territory on a regular basis, consistent
with
good business practices.
(b)
Representative shall solicit orders for Products at such prices, and on such
other terms and conditions, as may be established by HISS from time to time.
All
quotations for Products must be made on HISS’s standard quotation forms and be
based upon HISS's published prices and standard terms and conditions as then
in
effect, unless deviations there from have been approved in advance by HISS.
No
quotation will be valid for a period of more than thirty (30) days unless
otherwise approved in advance by HISS. Representative will provide to HISS
copies of all quotations and correspondence with customers and potential
customers.
(c)
All
Purchase Orders solicited by Representative are subject to written acceptance
by
an officer or other authorized employee of HISS. and no Purchase Order shall
be
binding upon HISS until so accepted. All orders will be , accepted only in
accordance with HISS's Standard Terms and Conditions of Sale. HISS reserves
the
right to alter or amend its Standard Terms and Conditions of Sale at any time
and such revised Standard Terms and Conditions of Sale shall be used for all
sales after the effective date of such revisions. Representative agrees that
it
shall have no authority to accept any order, assume, create or modify any
agreement or obligation or authorize any allowance, adjustment or return of
Products on behalf of HISS and shall so advise all customers and potential
customers with whom it deals.
2
(d)
HISS
shall have the right to change its standard price list at any, time and from
time to time during the term of this Agreement, provided that HISS shall give
Representative thirty (30) days' advance notice of any such price change. No
price change shall be effective for Products covered by a Purchase Order
accepted by HISS prior to the effective date of such price change. The price
of
all Products shall include the cost of standard packaging in accordance with
HISS's standard commercial practices. All freight, Insurance, shipping and
non-standard packaging expense shall be borne by and invoiced to the customer
unless otherwise specified in HISS's quotation.
(e)
All
invoices in connection with Purchase Orders solicited by Representative shall
be
rendered by HISS, directly to the customer, with a copy thereof to be forwarded
to Representative, in accordance with HISS's established invoicing practices.
Responsibility for all collections shall rest with HISS; provided, however,
that
HISS does not warrant the collectibility of any invoice. Representative agrees,
upon HISS's request, to assist HISS in effecting the collection of receivables
from customers solicited by Representative.
2.3
Other
Duties of Representative. During trial term of this Agreement, Representative
agrees as follows:
(a)
Representative shall maintain at least one office in the Territory which shall
be continually open and adequately staffed during normal business
hours.
Representative
shall employ an adequate number of qualified sales personnel, at such
compensation and on such other conditions as Representative may deem
appropriate, In order to enable Representative to discharge its duties
hereunder;
(b)
Upon
request of HISS, Representative agrees to undertake, at Representative's
expense, those administrative functions HISS deems reasonably I required for
proper management of the sales activity, including, but not limited
to:
(i)
Attendance of sales personnel at Regional Sales Conferences for the region
in
which the Territory is located and at National Sales Conferences.
(ii)
Submission of rolling three-month forecasts of bookings and xxxxxxxx forecasts
to HISS every month.
(iii)
Submission of annual sales forecasts.
(iv)
Submission of customer contact reports on a regular basis.
(c)
Representative shall obtain, and regularly report to HISS, information
concerning existing and potential markets for existing Products, as well as
customer Interest in potential new or modified Products within HISS's field
of
operations;
(d)
Representative shall cooperate with and assist HISS in Implementing such
promotional and merchandising campaigns as HISS may from time to time
undertake;
(e)
Representative shall regularly report to HISS regarding activities of HISS's
competitors of which Representative becomes aware during the course of
Representative's services hereunder;
3
(f)
Representative shall properly store and maintain all Products and other property
of HISS which may be supplied to Representative on consignment, for
demonstration purposes or otherwise, and shall return the same to HISS in good
condition (reasonable wear and tear excepted) upon the termination of this
Agreement or HISS's request therefore. Representative shall be responsible
for
normal maintenance of all demonstration units when they are located in the
Territory. Representative shall provide monthly inventory reports to HISS of
any
Products or other property of HISS, which is in Representative's possession,
or
in transit to or from Representative, and shall be responsible for any loss
or
shortage. Representative shall keep appropriate and adequate records of any
Products or other property of HISS shipped to and from Its premises under its
control or direction, and shall maintain suitable warehousing facilities where
required. HISS shall have the right, on request, to examine and/or audit all
records pertaining thereto and to conduct a physical inventory on reasonable
notice;
(g)
Representative shall promptly notify HISS of any complaint or claim made or
brought against Representative or HISS with respect to any Product;
(h)
Representative shell promptly notify HISS of all inquiries regarding Products
received by Representative from sources outside the Territory;
(i)
Representative shall avoid any actual or potential conflict of interest with
its
duties to HISS hereunder. Representative shall not represent any other
manufacturer or supplier of equipment competitive with the Products without
the
prior written consent of HISS; and
m
Representative shall attend, at Representative's expense, at least one of HISS's
periodic training sessions per year.
2.4.
Duties of HISS. During the term of this Agreement, HISS agrees as
follows:
(a)
HISS
shall provide Representative with current technical Information regarding the
Products. HISS may add or delete Products which it offers for sale from time
to
time in its sole discretion; and
(b)
HISS
shall furnish to Representative, without charge, reasonable quantities of
promotional sales literature and brochures, catalogue sheets, price lists and
engineering data and such other information and sales aids as, in HISS's
opinion, are appropriate for use by Representative in soliciting the sale of
Products hereunder, which materials may be used by Representative solely to
support its sales activities on HISS's behalf.
2.5
Commissions.
(a)
As
sole and exclusive compensation for Representative's services hereunder, HISS
shall pay Commissions to Representative, at the rates set forth in Exhibit
A
attached hereto, on (i) the Net Xxxxxxxx directly invoiced by HISS with respect
to sales of Products to Regular Account customers located in the Territory
I and
(ii) the Net Xxxxxxxx invoiced by HISS's Industrial Distributors with respect
to
sales of Products for shipment to Regular Account customers of Representative
located in the Territory, but excluding in each case Net Xxxxxxxx with respect
to sales of Products to House Accounts.
(b)
Commission payments with respect to sales of Products made directly through
Representative shall be made by the fifteenth (15th) day of the calendar month
following the month in which HISS receives payment from its
customers.
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(c)
There
shall be deducted from any Commission payment due Representative an amount
equal
to the total of: (i) any Commissions previously paid in respect to sales of
Products which have subsequently been returned; and (ii) a pro rata portion
of
any Commissions previously paid in respect to Products upon which refunds or
credits have subsequently been allowed by HISS.
(d)
Each
Commission payment shall be accompanied by a statement setting forth in
reasonable detail the computation of the Commissions being paid, and any
deductions thereto for identifying invoices by number.
(e)
HISS
may, in its sole discretion, allocate Commissions to be shared between two
or
more of HISS's Representatives. Representative shall be notified in writing
of
HISS's determination, which shall be final.
(f)
Commissions shall not accrue or be payable on orders or shipments for any
non-production items, such as experimental samples. tools or equipment,
development or experimental products, special testing equipment or any similar
equipment, paperwork, or for non-recurring engineering or technology transfer
charges, royalties or license fees.
(g)
If
this Agreement is terminated by either party, Commissions shall thereafter
be
determined and payable in accordance with Section 5.
(h)
Any
claim or dispute Representative may have, which is related to or arises out
of
the payment of Commissions hereunder shall be submitted to HISS in writing
within thirty (30) days after Representative knows of, or has reason to know
of,
the basis for the claim or dispute. Failure to give notice shall relieve HISS
from any and all liability for such claim or dispute. The provisions of this
subsection shall survive the termination of this Agreement.
3.
Warranties and Limitations of Liability.
HISS
shall provide to customers solicited by Representative only such limited product
warranties as are contained in its Standard Terms and Conditions of Sale, as
modified from time to time. Representative shall make no representations or
warranties to customers or potential customers Inconsistent with or in addition
to those contained in such terms and conditions.
4.
Confidential Information and Trademarks.
4.1
Proprietary Rights. Representative agrees that HISS retains proprietary rights
in and to all product specifications, designs, engineering details, discoveries,
inventions, patents, trade secrets and other proprietary rights relating to
the
Products (the "Proprietary Information"). The Products are offered for sale
and
are sold by HISS subject in every case to the condition that such sale does
not
convey any license, expressly or by implication, estoppel or otherwise, to
manufacture, duplicate or otherwise copy or reproduce any of the
Products.
4.2
Protection of Confidential Information. Representative agrees to protect the
confidentiality of all Confidential Information (including without limitation
the Proprietary Information) with the same degree of care as Representative
accords to Representative's own confidential and proprietary information and
to
use such Confidential Information only for purposes related to this Agreement;
provided, however, that Representative shall not be obligated to treat
information as Confidential Information, if such information:
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(a)
Was
rightfully in Representative's possession, or rightfully known to
Representative, prior to its receipt from HISS; or
(b)
Is or
becomes public knowledge without the fault of Representative;
or
(c)
Is or
becomes rightfully available to Representative without confidential restriction
from a source having no duty of confidentiality to HISS.
4.3
Continuation of Obligations. The obligations imposed by Section 4.2 shall
continue during the term of this Agreement and for a period of two (2) years
thereafter. Upon termination of this Agreement, Representative will return
to
HISS, within thirty (30) days, all Confidential Information in written or other
tangible form, and all reproductions, copies, extracts or summaries thereof,
in
its possession.
4.4
Trademarks. HISS hereby grants Representative the right to use HISS's trademarks
solely in connection with the solicitation of orders for Products hereunder
and
for such other purposes as may be approved in advance by HISS. Representative
acknowledges that such trademarks are and shall remain the sole" property of
HISS. Representative shall not do or suffer to be done any act or thing that
will in any way impair the rights of HISS in and to any HISS trademark.
Representative agrees not to use or register for use any name or xxxx
confusingly similar to any trademark of HISS. Upon termination of this Agreement
for any reason, Representative agrees to discontinue use of all HISS
trademarks.
5.
Term
and Termination.
5.1
Term.
Unless terminated sooner as herein provided, the term of this Agreement shall
be
for a period of twelve (12) months from the date of this Agreement. Furthermore,
this Agreement will be automatically renewed for additional twelve (12)-month
terms, unless HISS gives notice of termination of the Agreement to
Representative at least thirty (30) days' prior to the expiration of the initial
or any renewal term.
5.2
Termination by HISS for Cause. This Agreement may be immediately terminated
by
HISS upon the breach or default by Representative of any of the material terms,
obligations, covenants, representations or warranties contained herein,
including, without limitation, Representative's misuse of Confidential
Information or the engagement in activities competitive with the sale of
Products by HISS, by giving written notice of termination and specifying such
breach or default. Representative shall not be entitled to receive any
Commission payments after termination of this Agreement by HISS for
cause.
5.3
Termination Without Cause. This Agreement may be terminated by either of the
parties without cause upon written notice to the other party given at least
thirty (30) days prior to the effective date of termination stated in the
notice. In such event, Representative shall receive Commissions only on Bookings
made directly through Representative prior to the date of termination, which
result in payments made within six (6) months after the date of
termination.
6
6.
Miscellaneous.
6.1
Nature of Relationship. Representative shall at all times during the performance
of its services hereunder be an independent contractor, maintaining sole and
exclusive control over its business, operations and employees. Except as
specifically provided herein, all expenses and disbursements, including, but
not
limited to. those for travel, entertainment, office, clerical, insurance,
employee compensation and general selling expenses, that may be incurred by
Representative in connection with this Agreement shall be borne wholly and
completely by Representative, and HISS shall be in no way responsible or liable
therefore. Except as specifically provided herein, neither party shall have,
or
shall hold itself or himself out as having, any right, power or authority to
create any contract or obligation, either express or implied, on behalf of,
in
the name of, or binding upon the other or to pledge the other's credit or to
extend credit in the other's name.
6.2
Notices. All notices and other communications required or permitted hereunder
shall be in writing and shall be deemed effectively given upon personal delivery
or on the day sent by facsimile transmission if a true and correct copy is
sent
the same day by first class mail, postage prepaid, or by dispatch by an
internationally recognized express courier service, to the proper parties at
the
appropriate business addresses.
6.3
Damages. HISS shall not in any way be liable for any losses, injuries, damages
or claims of any nature whatsoever, which Representative may be subject to
or
incur as a result of any of its activities in connection with this Agreement.
Representative will carry adequate insurance, at its own expense, to cover
such
contingencies and will, upon request, submit proof thereof to HISS's
satisfaction. Representative shall indemnify and hold HISS harmless from any
claims or losses for property damage, personal injury, or any other liability
arising from the negligence or fault of Representative, its employees or
agents.
6.4
Headings. The headings of the several sections of this Agreement are inserted
for the convenience of reference only and are not intended to affect the meaning
or interpretation of this Agreement.
6.5
Counterparts. This Agreement may be executed in counterparts, and delivery
of a
signed counterpart by facsimile shall constitute valid execution and delivery
of
this Agreement.
6.6
Assignment. Neither this Agreement, nor any rights or obligations hereunder
may
be assigned, delegated or transferred In any manner by Representative without
the prior written consent of HISS. This Agreement shall bind and inure to the
benefit of any successors or assigns of HISS and to any permitted successors
or
assigns of Representative.
6.7
Entire Agreement. This Agreement, including Exhibits A and B hereto, constitutes
the entire agreement between the parties pertaining to the subject matter
contained herein and supersedes all prior and contemporaneous negotiations,
representations, agreements and understandings of the parties. Except for
amendments or modifications permitted to be made by HISS in its sole discretion,
no supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by the party sought to be bound.
6.8
Applicable Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Florida without regard
to any principles governing conflicts of laws. Any action or proceeding brought
under or arising out of this Agreement shall be litigated or brought In an
appropriate state or federal court in the State of Florida. The trade terms
under this Agreement shall be governed by and interpreted In accordance with
the
provisions of the Uniform Commercial Code, as adopted In the State of Florida)
and shall not be subject to or governed by the United Nations Convention on
Contracts for the International Sale of Goods.
7
6.9
Severability. Should any provision of this Agreement be determined to be
invalid, it should be severed from this Agreement and the remaining provisions
of this Agreement shall remain in full force and effect.
6.10
Non-Waiver. The failure of either party to enforce at any time any provision
or
provisions of this Agreement shall In no way be considered to be a waiver of
such provision or provisions, nor shall such failure affect the validity of
this
Agreement in any way. The failure of either party to exercise any such provision
or provisions shall not be construed as a waiver of any continuing or succeeding
breach of such provision, a waiver of the provision itself, or a waiver of
any
other right under this Agreement.
6.11
Attorneys’ Fees. In the event of any action or proceeding brought by one party
against the other concerning this Agreement, whether for declaratory or other
relief, the prevailing party shall be entitled, in addition to any other rights
and remedies it may have, to reimbursement for its expenses incurred thereby,
including court costs and reasonable attorneys' fees.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the
date first set forth above.
|
/s/
Xxxx Nodine__________________
|
HISS,
Inc.
|
|
(Sales
Agent)
|
|
|
By:___________________________
|
By:
/s/ Xxxxx Xxxxx
|
|
Its:
|
|
|
Name:
Xxxx
Nodine_______________
|
Name:
Xxxxx
Riley_____________
|
|
Title:
President__________________
|
Title:
Sec/Treasurer____________
|
|
Address:
00
Xxxx Xx _____________
|
Address:
0
Xxxx Xxxxxx________
|
|
Xxxxx, XX 28704_________
|
Asheville, NC
28803_____
|
8
EXHIBIT
A
Dated:
______
1.
PRODUCTS
The
HISS
products covered by this Agreement are listed below:
All
HISS
Standard Products and Options (Hardware and Software) listed on the effective
,
2005
2.
COMMISSIONS OR REPRESENTATIVE DISCOUNT SCHEDULE FOR DIRECT AND INDUSTRIAL
DISTRIBUTOR SALES
A.
Cyber
Tracker/Port Systems- (Includes Military) - 50% net profit (Less equipment,
local commissions, maintenance and set up)
B.
Radiation Detection (Duke Pro) - Shared 50% net commission on all
sales.
C.
Radiation/explosive detection Wand - Shared 50% net commission on all
sales.
D.
Sensor
Pack- Shared 50% net commission on all sales
9
STRATEGIC
ALLIANCE AGREEMENT
This
Strategic Agreement (this "Agreement") is entered into as of the 22 day
of
June, 2005 (hereinafter referred to as the effective date of the Agreement),
by
and between SMALL CORPORATION, a Georgia corporation (hereinafter referred
to as
"Small "), and LARGE CORPORATION, a Delaware corporation (hereinafter referred
to as "Large").
WITNESSETH:
WHEREAS,
Small and Large wish to enter into a strategic alliance to market and perform
certain complementary business consulting services;
NOW.
THEREFORE. in consideration of the foregoing and of the mutual premises
hereinafter expressed, the parties hereto do mutually agree as
follows:
ARTICLE
1. SCOPE OF STRATEGIC ALLIANCE.
A.
Small
shall, in a professional manner, take all steps necessary to market and perform
its Business Improvement Program and its other services (collectively the "Small
Services") for clients referred to Small by Large. Any engagement to perform
Small Services shall be on such terms and conditions as Small may approve in
its
sole discretion. Small will perform, schedule. staff and manage all Small
Services, Notwithstanding the foregoing, Large may, at its election, xxxx the
client directly for Small Services and under such circumstances Small shall
xxxx
Large the pre-agreed amount for the engagement as adjusted by any
client-approved change orders; otherwise, Small will xxxx the client directly.
Large agrees to include reference to Small in each contract and proposal
involving Small Services. Small's Business Improvement Program ("BIP"), and
other proprietary information and associated products, copyrights, trademarks,
trade names and logos developed by Small shall remain the property of Small
and
reference to Small's rights shall be made in all uses of such materials in
at
least 12 point type.
B.
Large
shall, in a professional manner, take all steps necessary to market and perform
its business management consulting services (collectively the "Large Services")
for clients referred to Large by Small. Any engagement to perform Large Services
shall be on such terms and conditions as Large ma approve in its sale
discretion. Large will perform, schedule, staff and manage all Large
Services.
ARTICLE
II. PERIOD OF PERFORMANCE.
This
Agreement shall be effective as of the date first set forth above and, shall
expire on the later of(i five (5) years from the date hereof, or (ii) with
respect to any projects identified in any contract for which Large is billing
the client directly, upon the completion of Small's Services and receipt of
payment by Small from Large for said services. This Agreement shall be
automatically renewed for successive one year periods unless either party gives
written notice of termination to the other party at least thirty (30) days
prior
to the date of expiration. Notwithstanding the foregoing, this Agreement shall
be earlier terminated (x) by mutual agreement of the parties. or (y) at any
time
upon sixty (60) days advance written notice to the other party. Time is of
the
essence in this Agreement. '
10
ARTICLE
III. MANAGEMENT.
Each
party shall designate a partner, officer or other senior person to be
responsible for the overall administration of this Agreement. Large shall have
ultimate responsibility for client relationships for j those clients that it
elects to xxxx directly for Small Services and Small will respond to Large's
direction.
ARTICLE
IV. CONFIDENTIAL INFORMATION.
The
parties acknowledge and agree that in the course of the performance of the
Large
Services and the Small Services (collectively, the "Services") or additional
services pursuant to this Agreement, that ea may be given access to, or come
into possession of, confidential information of the other party which I
information may contain trade secrets, proprietary data or other confidential
material of that party. Therefore the parties have executed a Non-Disclosure
Agreement which is attached hereto as Exhibit A, and incorporated by reference
as if fully set forth herein. Materials used in any engagement undertake
pursuant to this Agreement shall not be altered or changed without the consent
of both parties.
ARTICLE
V. NO PARTNERSHIP.
Nothing
herein contained shall be construed to imply a joint venture, partnership or
principal-agent I relationship between Large and Small, and neither party shall
have the right, power or authority to . obligate or bind the other in any manner
whatsoever, except as otherwise agreed to in writing. The I parties do not
contemplate a sharing of profits relating to the Large Services or the Small
Services so ~ to create a separate taxable entity under Section 761 of the
Internal Revenue Code of 1986, as amended, nor co-ownership of a business or
property so as to create a separate partnership under the law of any
jurisdiction, including, without limitation, Georgia or Delaware. Accordingly,
for tax, property and liability purposes Large will provide the Large Services,
and Small will perform the Small Services, each on a professional basis and
as
an independent contractor of the other. Revenues and expenses relating to the
Services and any additional services shall be reported separately by the parties
for tax purposes. During the performance of the any of the Services, Large's
employees will not be considered employees of Small, and vice versa, within
the
meaning or the applications of any federal, state or local, laws or regulations
including. but not limited to, laws or regulations covering unemployment
insurance old age benefits, worker's compensation. industrial accident, labor
or
taxes of any kind. Large's I personnel who are to perform the Large Services
or
additional services to be provided by Large hereunder shall be under the
employment, and ultimate control, management and supervision of Large. Small's
personnel who are to perform the Small Services or additional services to be
provided by Small hereunder shall be under the employment, and ultimate control,
management and supervision of Small It is understood and agreed that Small's
employees shall not be considered Large's employees within t meaning or
application of Large's employee fringe benefit programs for the purpose of
vacations, holidays, pension, group life insurance, accidental death, medical,
hospitalization, and surgical benefits and vice versa.
ARTICLE
VI. TRADEMARK, TRADENAME AND COPYRIGHTS.
Except
as
expressly provided herein, this Agreement does not give either party any
ownership rights 0 interest in the other party's trade name, trademarks or
copyrights.
11
ARTICLE
VII. INDEMNIFICATION.
Each
of
Large and Small, at its own expense, shall indemnify, defend and hold the other,
its partners, shareholders, directors, officers, employees, and agents harmless
from and against any and all third· party suits, actions, investigations and
proceedings, and related costs and expenses (including reasonable attorney's
fees) resulting solely and directly from the indemnifying party's negligence
or
willful misconduct. Neither Large nor Small shall be required hereunder to
defend, indemnify or hold harmless the other and/or its partners, shareholders,
directors, officers, directors, employees and agents, or any them, from any
liability resulting from the negligence or wrongful acts of the party seeking
indemnification or of any third-party. Each of Large and Small agrees to give
the other prompt written notice of any claim or other matter as to which it
believes this indemnification provision is applicable. The indemnifying party
shall have the right to defend against any such claim with counsel of its own
choosing and to settle and/or compromise such claim as it deems appropriate.
Each party further agree to cooperate with the other in the defense of any
such
claim or other matter.
ARTICLE
VIII NON-SOLICITATION OF PERSONNEL.
Small
and
Large agree not to engage in any attempt whatsoever, to hire, or to engage
as
independent contractors, the other's employees or independent contractors during
the term of this Agreement and for a period of six (6) months following
expiration or termination of this Agreement except as may be mutually agreed
in
writing.
ARTICLE
IX. INTELLECTUAL PROPERTY
Work
performed on engagements pursuant to this Agreement by either Large and/or
Small
and information, materials, products and deliverables developed in connection
with engagements pursuant 0 this Agreement shall be the property of the
respective parties performing the work or creating the information. All
underlying methodology utilized by Small and Large respectively which was
created and/or developed by either prior to the date of this Agreement and
utilized in the course of performing engagements pursuant to this Agreement
shall not become the property of the other. Each party's rights, titles and
interests are described in the Non-Disclosure Agreement attached hereto as
Exhibit A.
ARTICLE
X. GENERAL PROVISIONS
A.
Entire
Agreement: This Agreement together with all documents incorporated by reference
herein, constitutes the entire and sole agreement between the parties with
respect to the subject matter hereof and supersedes any prior agreements,
negotiations, understandings, or other matters, whether oral or written, with
respect to the subject matter hereof, This Agreement cannot be modified, changed
or amended, except for in writing signed by a duly authorized representative
of
each of the parties.
B.
Conflict: In the event of any conflict, ambiguity or inconsistency between
this
Agreement and any other document which may be annexed hereto, the terms of
this
Agreement shall govern.
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C.
Assignment and Delegation: Neither party shall assign or delegate this Agreement
or any rights, duties or obligations hereunder to any other person and/or entity
without prior express written approval of the other party.
D.
Notices: Any notice required or permitted to be given under this Agreement
shall
be in writing, by hand delivery, commercial overnight courier or registered
or
certified U.S. Mail, to the address stated below for Small or to the address
stated below for Large, and shall be deemed duly given upon receipt or if by
registered or certified mail three (3) business days following deposit in the
U.S. Mail. The parties hereto may from time to time designate in writing other
addresses expressly for the purpose of receipt of notice hereunder.
If
to
Large:
If
to
Small:
E.
Severability: If any provision of this Agreement is declared invalid or
unenforceable, such provision shall be deemed modified to the extent necessary
and possible to render it valid and enforceable. In an event, the
unenforceability or invalidity of any provision shall not affect any other
provision of this Agreement, and this Agreement shall continue in full force
and
effect, and be construed and enforced, S if such provision had not been
included, or had been modified as above provided, as the case may
be.
F.
Governing Law: This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia without giving effect to its choice of
law
principles.
G.
Paragraph Headings: The paragraph headings set forth in this Agreement are
for
the convenience of the parties, and in no way define, limit, or describe the
scope or intent of this Agreement and are to be given no legal
effect.
H.
Counterparts: This Agreement may be executed in two or more counterparts, each
of which shall b deemed an original, but all of which together shall constitute
one and the same instrument.
I.
Exhibits: The Exhibits attached hereto are made a part of this Agreement as
if
fully set forth herein.
IN
WITNESS WHEREOF, the parties, by their duly authorized representatives, have
caused this Agreement to be executed as of the date first written
above.
LARGE
CORPORATION SMALL
CORPORATION
By: /s/
Xxxxx Xxxxx
By: Duke
Pro, Inc.
Name: Xxxxx
Xxxxx
Name: /s/
Xxxx Xxxxxx
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