AMENDED AND RESTATED
MARKETING REPRESENTATIVE AGREEMENT
This Agreement, entered into on the date designated below, is between
XxxXxxx.Xxx, Inc. (hereinafter referred to as "BioLynx"), a Texas corporation,
with its principal place of business located at 0000 Xxxxxxx Xxxx, Xxx Xxxxxxx,
Xxxxx 00000 and SOS Staffing Services, Inc. (hereinafter referred to as
"Representative"), a Utah corporation, with its principal place of business
located at 0000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx, 00000. BioLynx and
Representative are collectively referred to as "Parties".
Whereas, BioLynx is the owner of and has the right to distribute
certain "hardware'"; has propriety rights to certain "software"; and agrees to
supply the "services" necessary to provide a time, attendance and data
integrated payroll system. The "hardware" and "software" are collectively
referred to as "products"; and,
Whereas, Representative desires to market the products and services of
BioLynx under the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained the parties agree as follows:
1. Appointment. BioLynx hereby appoints Representative as an authorized
distributor of its products and services. The Representative may solicit Service
Agreements anywhere within the United States, but without any exclusive right in
any territory except in the staffing industry where except in the state of
Texas, no staffing industry firm other than Representative shall be engaged as
an authorized distributor of its products and services during the term of this
Agreement or any extension thereof. Representative may, with the consent of
BioLynx, which consent shall not be unreasonably withheld, subcontract to other
staffing industry firms the distribution of BioLynx's products and services.
2. Designated Customers. In consideration of Representative efforts to
market BioLynx's products and services, BioLynx agrees that, any contact made by
Representation shall provide Representation. Also, any contact from parties
engaged by representative shall carry the same terms as above. The exclusive
right to sell the products and services to such designated customer for a period
of one hundred eighty (180) days.
3. Term of Appointment. Representative's appointment shall commence on
the date of this agreement and remain in full force and effect for a period of
three (3) years from date hereof, but is subject to the following:
(a) This appointment and the term of this Agreement shall
automatically be extended for a period of one year after the expiration
of the original term, or any subsequent renewal term, unless either
party notifies the other in writing of its intent to terminate this
Agreement at the end of such term at least sixty (60) days prior to the
end of the original term or any such renewal term.
(b) If either party shall cease to function as a going concern, or a
receiver is appointed or applied for, or a petition under the federal
bankruptcy code is filed by or against it, or it makes an assignment
for the benefit of creditors, The non-defaulting party may upon two
days written notice terminate this agreement, but such termination
shall be without prejudice to the rights of the parties with respect to
products already sold and delivered.
(c) In the event of the termination of this agreement, BioLynx
agrees that the fees payable to Representative hereunder and under any
Service Agreements, as defined below, shall continue for a period of
one (1) year from the date of termination.
4. Duties of Representative. Upon acceptance of this appointment,
Representative agrees as follows:
(a) To use commercially reasonable efforts to obtain service
agreements for the installation of 100 units within a reasonable time
from the date hereof. The inventory of products is to be maintained at
the principal place of business of BioLynx and all installations and
services shall be performed by BioLynx personnel.
(b) To attend an orientation and training seminar at BioLynx's home
office in San Antonio, Texas. All expenses of attending the seminar
will be the responsibility of the Representative.
(c) Unless the parties agree that another arrangement is more
appropriate, to be responsible for billing and collecting service fees
from its customers. The minimum service fee for each product shall be
the greater of $125.00 per week or $5.00 per employee utilizing the
unit per week unless otherwise agreed (the "Minimum Service Fee").
(d) To promptly pay BioLynx its invoice for products and services.
BioLynx will xxxx Representative an amount equal to fifty per cent
(50%) of the Minimum Service Fee for each product that Representative
actually places. If Representative places products at a price above the
Minimum Service Fee, Representative shall be entitled to the entire
amount of such excess over the Minimum Service Fees. BioLynx shall not
submit invoices more frequently than Representative actually receives
the Minimum Service Fees under the Service Agreements.
5. Duties of BioLynx. In consideration of Representative's
undertakings, BioLynx agrees as follows:
(a) To coordinate and complete all installations in a commercially
reasonable time and manner.
(b) To provide marketing materials (limited to 20 brochures per
product, with additional materials available on an "at cost" basis)
(c) To employ, at its sole cost and expense, qualified personnel to
provide the required services and products under the service agreement.
(d) To provide customer support services at the levels specified in
the service agreement, the form of which is attached hereto Exhibit A
and incorporated herein by this reference (the "Service Agreement").
(e) To undertake research and development and upgrade products as
may become necessary.
(f) To provide Representative with five (5) free "demo" products.
Representative may purchase additional "demo" products at a cost of
$1,000.00 per unit.
6. Representations and Warranties. BioLynx represents and warrants to
Representative that all software used in or in connection with the products and
services which are the subject of this Agreement is and shall be original works
of authorship of BioLynx, or shall be fully available for use in such software
by BioLynx through appropriate license or purchase of rights.
BioLynx represents and warrants to Representative that no technology
used in or in connection with the services or products will violate any
copyright, trade secret, trade dress, trademark or patent of any third party.
7. Indemnification. BioLynx shall indemnify and hold Representative
harmless from and against all costs, expenses, including reasonable attorney's
fees, claims, proceedings, causes of action, damages, and liabilities arising
from or related to any breach of the representations and warranties made by
BioLynx in paragraph 7 of this Agreement.
8. Confidentiality. Contemporaneously with the execution of this
agreement, the parties have executed a Confidentiality Agreement that is
attached hereto and incorporated herein for all purposes.
9. Waiver. The failure of either party to enforce at any time any of
the provisions hereof shall not be construed to be a waiver of such provisions
or of the right of such party thereafter to enforce any such provisions.
10. Assignment. This appointment is personal, and the rights hereunder
are not assignable or the obligations imposed delegable with out the prior
written consent of BioLynx, which shall not be unreasonably withheld.
11. Modification. No renewal or termination of this agreement, or
modification or waiver of any of the provisions herein contained, or any future
representations. promises, or condition in connection with the subject matter
hereof shall be binding unless made in writing. A mere acknowledgment or
acceptance of any order inconsistent with the terms of this agreement, or the
making of deliveries pursuant thereto, shall not be deemed an acceptance or
approval of the inconsistent provisions.
12. Construction. This instrument contains the entire agreement between
the parties. All prior and collateral representations, promises and conditions
are expressly merged herein. Any representations, promises or conditions not
incorporated herein shall not be binding upon either party.
13. Mandatory Arbitration. The parties agree than any dispute or claim
concerning this agreement will be settled by arbitration. The arbitration
proceedings shall be conducted under the Commercial Arbitration Rules of the
American Arbitration Association in effect at the time a demand for arbitration
under the rules is made. The decision of the arbitrators, including
determination of amount of damages suffered shall be exclusive,-final and
binding on both parties, their heirs, successors administrators and assigns.
14. Governing Law. This agreement shall be governed by laws of the
State of Texas. IN WITNESS WHEREOF, the parties have executed this agreement on
the 2;6 day of
By: /s/ Xxxxxx Xxxxx By: /s/ XxXxx X. Xxxxxx
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Xxxxxx Xxxxx XxXxx X. Xxxxxx
President and CEO Chairman, President,
and CEO
