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EXHIBIT 10.8
SAGE, INC
DOMESTIC SALES REPRESENTATIVE AGREEMENT
THIS AGREEMENT made and entered into as of _________________ by and between
SAGE, INC. (herein called SAGE), and xxx (hereinafter called REPRESENTATIVE).
SAGE manufactures, distributes and sells various products that are subject to
change at SAGE'S discretion from time to time. The SAGE products covered by
this Agreement are those classified as "SAGE Products". REPRESENTATIVE is
knowledgeable of the industry in which SAGE'S products are used and familiar
with potential customers in the Territory (defined below).
In consideration of the mutual covenants contained herein, SAGE and
REPRESENTATIVE agree as follows:
1.0 APPOINTMENT OF REPRESENTATIVE
1.1 SAGE appoints REPRESENTATIVE, and REPRESENTATIVE accepts the
appointment, in REPRESENTATIVE'S capacity as an independent contractor, to
exclusively represent SAGE'S Products throughout the Territory specified in
Exhibit A (the "Territory") on a commission basis, subject to the provisions of
this Agreement and for the purposes set forth herein.
2.0 REPRESENTATIVE'S ACTIVITIES AND RESPONSIBILITIES
2.1 REPRESENTATIVE shall exercise its best efforts to promote the sale of
SAGE'S Products and to promote and protect the best interests of SAGE as well
as the responsibilities outlined in Exhibit C. REPRESENTATIVE shall, as a
minimum, meet the sales (booking quotas that are mutually agreed to by the
REPRESENTATIVE and SAGE for each year during the term of this Agreement. The
annual sales quotas established as well as the capacity of SAGE to fill
potential orders for its Products.
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2.2 REPRESENTATIVE shall provide and maintain, solely at Representative's
expense, a suitable place of business in the Territory and a sufficient number
of qualified salesmen having a reasonably thorough knowledge of SAGE's Products
and Product lines to contact (in person, by telephone and written
correspondence) and service existing and prospective customers (together
referred to as "Customers") throughout the Territory, in connection with
soliciting the purchase of SAGE's Products.
2.3 REPRESENTATIVE shall promptly notify SAGE of new product requirements
of Customers, within the scope of SAGE's Product lines.
2.4 REPRESENTATIVE shall submit to SAGE from time to time as requested by
SAGE forecasts of its expected sales and reports of its activity in the
Territory containing such information as SAGE may from time to time request.
2.5 REPRESENTATIVE shall supply SAGE with any credit information about
any Customer that may become available.
2.6 To assure that REPRESENTATIVE is using the best efforts to promote
SAGE's Product lines, REPRESENTATIVE shall not promote, market or act as a
sales representative for any products that directly compete with SAGE's
Products. REPRESENTATIVE shall notify SAGE in writing, promptly of any changes
in its representation of other manufacturers' product lines which may conflict
or appear to conflict with the representation of SAGE's Products hereunder.
3.0 PRICE LISTS AND OTHER MATERIALS
3.1 Price Lists: Prices will be quoted by SAGE. There are no OEM price
Lists.
3.2 Literature and Promotional Materials: SAGE shall endeavor or to
provide REPRESENTATIVE with such information, literature, catalogs, data
sheets, sales, and other relevant materials as SAGE may normally make available
for use by its sales representatives.
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4.0 ORDERS; ACCEPTANCE
4.1 Quotations and Orders: REPRESENTATIVE shall solicit orders from
Customers only in accordance with procedures established by SAGE and subject to
SAGE's terms and conditions of sale. SAGE's current form of terms and
conditions is attached as Exhibit "D". SAGE reserves the right to change its
terms and conditions of sale from time to time without prior notice to
REPRESENTATIVE, and any such changes shall be applicable to orders accepted
after the change.
4.2 REPRESENTATIVE shall not alter, limit, or enlarge orders without prior
written approval from SAGE.
4.3 Order Acceptance and Rejection: In no event shall no order be deemed
to have been accepted by SAGE until it is accepted by SAGE at its home office
in 0000 Xxx Xxxxxxxxx Xxxxx, #000, Xxxxx Xxxxx, XX 00000 and acknowledged in
writing by an authorized SAGE employee. REPRESENTATIVE shall advise Customers
that it is not authorized to accept orders on behalf of SAGE. SAGE reserves the
right to reject or not to accept any orders and shall have no liability of any
kind to REPRESENTATIVE by reason of such rejection or non-acceptance or for not
scheduling ay accepted order for shipment.
4.4 Orders which are accepted become Scheduled Backlog at the time the
order is scheduled in the ordinary course of SAGE's procedure for shipment to
the Customer. Until scheduled, an accepted order is considered Unscheduled
Backlog.
5.0 COMMISSION
5.1 General: A commission will be paid by SAGE to REPRESENTATIVE for all
services and activities performed pursuant to Section 2.0 of this Agreement as
set forth below.
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5.2 Sales by SAGE to Customers: Except as otherwise provided herein and as
specified in Exhibit B, REPRESENTATIVE shall earn a commission on the
dollar volume of sales of Products sold and delivered by SAGE to
retail or OEM Customers. The "Dollar Volume" of sales is calculated on
the basis of selling price net after deducting applicable discounts,
returns for credit, replacement or repair, shipping charges,
cancellation xxxxxxxx, deductions, offsets and the like (and not
including any taxes which SAGE might charge or collect).
If any Products are returned by a Customer, the selling price of which was
included in the Dollar Volume, any credit given such Customer shall reduce the
Dollar Volume of sales used in future commission calculations at the earliest
opportunity or, at SAGE's discretion. SAGE may require REPRESENTATIVE to repay
SAGE for all commission paid on account of such returned Products at any time
following their return. The Dollar Volume does not include such items as
development fees, qualification charges, items collected after the commencement
of litigation, or replacement of spare parts.
6.0 PAYMENT OF COMMISSION
6.1 Time Earned: Commission shall be deemed to have been earned by
REPRESENTATIVE at the time of shipment of the Products by SAGE to a Customer,
or as amended in Exhibit B; provided, however, that earned commission be offset
to the extent that products are returned for credit, replacement or repair.
6.2 Payments: Payment of commissions earned by REPRESENTATIVE hereunder
shall be made to REPRESENTATIVE one month after the end of the month in which
such commissions are earned on shipment by SAGE. Commissions will be earned on
all sales of Sage Inc. products into the defined territory, which is not
specifically excluded by this contract. Notwithstanding anything to the
contrary, SAGE may elect, at its sole discretion, to make payments to
REPRESENTATIVE for commission on sales to Customers only after receipt of
payment from the applicable Customer and to make pro-rated payment of
Commissions in the event of partial payment from such applicable Customer. In
the event of a dispute between REPRESENTATIVE and SAGE, SAGE reserves the right
to hold commissions until such disputes are resolved to the satisfaction of
both parties.
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7.0 RELATIONSHIP OF PARTIES
7.1 REPRESENTATIVE's sole authority under this Agreement is to solicit
orders in accordance with procedures established by SAGE for SAGE's acceptance
on SAGE's standard terms and conditions of sale as amended by SAGE from time to
time. REPRESENTATIVE is not authorized to enter into any agreement or to make
any commitment of any kind on behalf of SAGE. REPRESENTATIVE is an independent
contractor and nothing contained herein shall be construed or intended as
creating a relationship of principal and agent or employer and employee between
SAGE and REPRESENTATIVE. SAGE shall not incur any liability whatsoever to third
parties by reason of REPRESENTATIVE exceeding its authority under the
appointment granted herein or by reason of a misrepresentation by REPRESENTATIVE
of the relationship with SAGE, and if any claim is asserted against SAGE based
on conduct by REPRESENTATIVE, REPRESENTATIVE agrees to defend and hold SAGE
harmless from any loss, damage, liability or expense, including reasonable
attorneys' fees.
7.2 REPRESENTATIVE shall be responsible for payment of all applicable taxes
and withholdings on commissions paid to it by SAGE and REPRESENTATIVE shall hold
SAGE harmless from any claims regarding payment for same. REPRESENTATIVE shall
assume and discharge for its own account all costs and expenses necessary or
incidental to REPRESENTATIVE's activities hereunder.
8.0 CONFIDENTIAL INFORMATION
8.1 REPRESENTATIVE agrees it will not disclose to any other party any
confidential information of SAGE, including, but not limited to quantity of
Products shipped, Product pricing, Product returns, and in general such
information which if disclosed to others would be detrimental to the best
interests of SAGE to the extent that such information is acquired by
REPRESENTATIVE in the course of activities performed under this Agreement.
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9.0 TERMS AND TERMINATION OF AGREEMENT
9.1 Term: The term of this Agreement shall be one (1) year commencing on
the date of this Agreement. At the expiration of one (1) year period, this
Agreement will automatically be renewed for successive period of one (1) year.
Either party may give the other not less than thirty (30) days prior written
notice of its intention to terminate the Agreement without cause at any time as
provided in section 9.2.1, in which case this Agreement shall terminate and
cease as of the end of that notice period as stated in Section 9.2.
9.2 Either party may terminate this Agreement at any time during the
initial or any renewal term as follows:
9.2.1 Termination Without Cause: Either party may during the term of
this Agreement, or any renewal thereof, terminate this Agreement at any time
without cause by giving prior written notice to the other party. The notice
period for termination without cause shall be thirty (30) days. Termination
shall be effective upon the conclusion of the notice period; provided, however,
that either party may, at its option, waive all or any part of the notice
period, and termination shall be effective at the conclusion of such shortened
period. During the notice period, each party shall continue to perform all of
its obligations hereunder, failing which the other party may terminate for
cause.
9.2.2 Termination for Cause: Either party may terminate this
Agreement at any time upon notice in writing to the other party, to be in
effect immediately, if the party:
A. Fails to perform a material obligation as required by this
Agreement:
B. Assigns or attempts to assign this Agreement or any right
therein without the prior consent of SAGE, admits in writing an inability to
pay its debts as they mature, is adjudged to be bankrupt, makes an assignment
for the benefit of creditors, has a receiver appointed, files a petition in
bankruptcy, or initiated reorganization proceedings.
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9.3 Right of Termination Absolute: The rights of termination herein
contained are absolute. Neither party shall be liable to the other for any
loss, damage or liability by reason of the exercise of the rights of
termination and any and all claims of such liability and the right to make such
claims are hereby expressly waived. It is understood and agreed that both
parties shall be liable for any obligation that accrued under the terms of this
Agreement prior to termination.
9.4 Disposal of Materials: Upon expiration or termination of this
Agreement, REPRESENTATIVE shall deliver to SAGE or otherwise dispose of price
lists, sales aids, advertising matter, Product samples, other materials
furnished by SAGE and all Customer records showing sales of SAGE's Products in
the manner directed by SAGE; and REPRESENTATIVE shall immediately cease any
further use of SAGE's name, trademark, part numbers and similar identifying
symbols to which SAGE may have previously consented hereunder.
9.5 Commission Payments After Expiration or Termination:
9.5.1 In the event of expiration of this Agreement or termination by
SAGE without cause, the REPRESENTATIVE shall be paid commissions on shipments
of Scheduled Backlog of orders by SAGE customers in existence as of the
effective date of termination, expiration or non-renewal according to the
schedule below:
Commissions are Earned on Shipments of SAGE Scheduled Backlog in Existence on
the Date of Termination, Expiration or Non-Renewal for the period of shipment
within 60 days from date of termination.
No Commission shall become due on any order which has been obtained or accepted
after the effective date of termination of this Agreement, unless specifically
provided for and agreed to by Sage Inc. in writing at the time of termination.
9.5.2 In the event of termination of this Agreement by either party
for cause in accord with 9.2.2, SAGE shall not be obligated to pay any
commission to REPRESENTATIVE on account of shipments made subsequent to the
notice date of termination for cause. This provision shall prevail and take
precedence over any other provision in the event of conflict or inconsistency.
9.5.3 REPRESENTATIVE Termination: In the event REPRESENTATIVE
initiates termination, expiration or non-renewal of this Agreement, the period
within which commissions will be earned after the date of Notice will be
reduced to fifty percent (50%) of the period stated in Paragraph 9.5.1 and
9.5.3 SAGE may, at its discretion, elect to waive all or any part of the 30
day notice of termination period.
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9.6 Right to Appoint Another Representative: Notwithstanding anything to the
contrary herein, SAGE may at any time after giving the thirty (30) days notice
of termination provided for in Paragraph 9.2.1 appoint another representative
in the Territory.
10. GENERAL PROVISIONS
10.1 Entire Agreement. This Agreement sets forth the entire understanding
between the parties as to the subject matter hereof and supersedes all prior
and collateral understandings and agreements; regardless of form, between the
parties.
10.2 Extension and Modifications: This Agreement shall not be extended,
modified or supplemented except by an instrument in writing executed by a duly
authorized officer of each party.
10.3 Assignment: This Agreement is personal to REPRESENTATIVE and is not
assignable without the prior written consent of SAGE. Any voluntary or
involuntary assignment or attempted assignment shall be void and of no effect.
If REPRESENTATIVE is a corporation or partnership, a change in the management
or shareholder or partnership, a change in the management or shareholders or
partners (as applicable) shall be deemed an assignment of this Agreement.
10.4 Notice: Any notice required or contemplated by this Agreement must be in
writing, delivered by confirmed fax, certified or registered mail, addressed to
the respective party at its address herein above set forth, or to such other
address as may from time to time be substituted therefor by notice in writing
sent by the party changing its address. All notices shall be effective as of
the date of mailing or fax by the party giving the notice.
TO SAGE INC. TO REPRESENTATIVE:
Sage Inc. Electro Source Inc.
Attn: Xx. Xxxxx Xxxxx Attn: Xx. Xxxxxxx Xxxxxxxxxx
0000 Xxx Xxxxxxxxx Xx. #000 000 Xxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000 Xxxxxxx, Xxxxxxx X0X 0X0
Ph: (000) 000-0000, X101 Ph: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
10.5 Waiver: The failure to take action shall not be a waiver of the right to
take other or later action. The waiver of any breach shall not act as a waiver
of any subsequent breach of the same or different nature.
11. CONSTRUCTION AND VALIDITY
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11.1 Governing Law: The validity, construction and enforcement of this
Agreement shall be governed by the laws of the State of California SAGE and
REPRESENTATIVE agree that any litigation which may be initiated between them
shall be filed and heard only in a state or federal court located within Santa
Xxxxx County, in the state of California, and both parties agree to personal
jurisdiction and venue in Santa Xxxxx County, in the State of California.
11.2 Invalidity. In the event any provision of this Agreement is prohibited by
or under the laws of any jurisdiction in which the Agreement may be used or to
which it may be applicable, such provision shall be, as to that jurisdiction,
ineffective to the extent of such prohibition without invalidating thereby any
of the remaining provisions of the Agreement.
11.3 Counterparts: This Agreement may be executed in counterparts, each of which
shall be deemed to be an original.
12. DAMAGES AND CLAIM
12.1 Damages: Except as otherwise provided herein neither party shall by reason
of, or upon termination of this Agreement, be liable to the other for
compensation or damages on account of the loss of present or prospective
profits or commissions on sales or anticipated sales, or expenditures,
investments of commitments made in connection therewith or in connection with
the establishment, development or maintenance of the representative hereunder.
The acceptance by SAGE of any order after notice of termination shall not be
construed as a renewal or extension of this Agreement or as a waiver of
termination.
12.2 In consideration of the execution or renewal of this Agreement by SAGE,
REPRESENTATIVE hereby releases SAGE from all claims, demand or other
liabilities, if any there be, as of the date of the execution of this Agreement
by REPRESENTATIVE, except indebtedness due under a written contract with SAGE.
REPRESENTATIVE waives all claims to commissions arising under any prior
agreement with respect to shipments for which a commission is payable under the
terms of this Agreement.
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This agreement made and entered into as of August 14, 1998.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the year and day first above written.
SIGNATURE:
REPRESENTATIVE NAME:
TITLE:
DATE:
SIGNATURE:
SAGE INC. NAME:
TITLE:
DATE:
