EXHIBIT 10.12
AGREEMENT
EXCLUSIVE TERRITORY AND COMPENSATION AGREEMENT
THIS AGREEMENT made this 4th day of November 2003, by and between
ACCUPOLL, Inc. ("ACCUPOLL"), a Delaware Corporation, whose principal address is
00000 Xxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX. 00000 and AmCad, LLC, a Virginia
Corporation ("Reseller") whose principal address is 00000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxxx, 00000. Corporate mailing and payment address should be made to ATTN: X.
Xxxxxxxx, 00000 X. Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000.
RECITALS
--------
Whereas ACCUPOLL has developed a touch screen voting system with
proprietary software for use in local, county, state and federal elections,
Whereas ACCUPOLL wishes to market its product to local, county, state,
and federal agencies,
Whereas ACCUPOLL's product consists of polling place equipment (voting
stations and voting administrative workstations) and central site equipment
(central count server) ("PRODUCT"),
Whereas RESELLER has certain contacts with local, county, state and
federal agencies and ACCUPOLL wishes to utilize these contacts and the
RESELLER's services to market ACCUPOLL's product.
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
1. ENGAGEMENT. ACCUPOLL hereby engages RESELLER to market its product
in the States or Counties listed in the attached exhibit A-1 "exclusive
territory". ACCUPOLL will provide RESELLER, at ACCUPOLL's expense, with
reasonable quantities of sales literature and other marketing materials for use
in the promotion and sale of ACCUPOLL's product in the territory (see section 7)
assigned to RESELLER. Any literature or other materials furnished by ACCUPOLL
and not distributed to potential customers remain the property of ACCUPOLL and
shall be returned to ACCUPOLL at its request. At no time shall the RESELLER
provide legal services on behalf of the ACCUPOLL or act in the capacity of an
attorney for ACCUPOLL.
2. ACCEPTANCE. RESELLER hereby accepts ACCUPOLL engagement to market
its products. RESELLER will devote the necessary time and effort on behalf of
ACCUPOLL during the term of this agreement.
3. COMPENSATION. RESELLER will be provided with pricing from ACCUPOLL
that is the standard list price for all ACCUPOLL Products and services to be
resold by the RESELLER. The fees to RESELLER to be paid are pursuant to the
terms and conditions set forth on Exhibit "A" attached hereto.
4. RELATIONSHIP. RESELLER shall not have any authority to enter into
contracts, make commitments or otherwise bind ACCUPOLL to any obligations
without ACCUPOLL's prior written consent. RESELLER shall be required to hire his
own employees and shall have full and sole responsibility for the payment of all
federal, state and local taxes or contributions that are required pursuant to
unemployment insurance, social security, income taxes, and workers' compensation
statutes, and agrees to indemnify ACCUPOLL for any liability relating thereto or
resulting from the acts, omissions or negligence of RESELLER or his/her
employees or agents arising out of or relating to the services. It is agreed
that neither the RESELLER nor his/her employees shall have a claim against
ACCUPOLL by reason of the services performed under this agreement for any social
security, disability, unemployment, vacation, sick leave, insurance, retirement
or any other employment benefits of any kind.
5. TERM. Twelve (12) months, subject to the performance milestones set
forth in Exhibit "A" attached hereto. With the mutual agreement of both parties,
this agreement may be extended beyond the initial term of the agreement. If
ACCUPOLL elects to exercise its option to extend this agreement, ACCUPOLL will
notify RESELLER in writing of its intent no less than 30 days prior to the
Confidential 1 of 7
termination date of this agreement. In the event a contract is awarded to a
different vendor in some or all of the exclusive territory listed in Exhibit A,
this agreement automatically terminates in those affected areas without further
notice.
6. TERMINATION FOR NON-PERFORMANCE. Upon 30-day written notice by
ACCUPOLL to RESELLER, ACCUPOLL can terminate this agreement if the RESELLER
fails to meet the performance milestones set forth in Exhibit A, attached
hereto.
7. TERRITORY. This Agreement will be exclusive to the RESELLER in the
territory more specifically described in Exhibit "A" attached hereto. RESELLER
also agrees not to enter into any agreement with competitors of ACCUPOLL within
the territory while under contract to ACCUPOLL and for a period of twelve (12)
months following the termination of any contract with ACCUPOLL. A competitor of
ACCUPOLL shall be defined as any person or entity that has submitted, or shows a
demonstrable intention to submit, a response to a request for proposal to supply
and/or implement a voting system. ACCUPOLL reciprocally agrees not to enter into
any agreement with any competitor of RESELLER within the territory while
RESELLER is under contract to ACCUPOLL and for a period of twelve (I2) months
following the termination of any contract with ACCUPOLL. A competitor of
RESELLER shall be defined as any person or entity that has submitted, has
installed or offers for sale an imaging land record, official record or case
management application software solution.
8. CONFIDENTIALITY AND NON-CIRCUMVENTION.
(a) RESELLER acknowledges and agrees that he has had and will continue
to have access to or be provided with confidential information of ACCUPOLL
during the term of this agreement. ACCUPOLL acknowledges its responsibility to
accurately and clearly xxxx any and all such material as Confidential
Information, and that failure to properly do so shall deem that information as
not ACCUPOLL "confidential". RESELLER agrees, however, to be diligent with the
information provided, and fully protect obviously Confidential information which
has inadvertently not been marked. As used herein, the term "Confidential
Information" shall mean any and all proprietary or confidential information of
ACCUPOLL which is properly marked, including, without limitation, ACCUPOLL's
business plan, business presentation or related proprietary and financial
information as well as other confidential or proprietary information of ACCUPOLL
regarding ACCUPOLL's business, plans, financial results and statements, markets,
projected activities, customers and results of operations, requirements and
sources, contracts, means, methods and processes of providing services,
copyrights, patents, trademarks, trade secrets and financial information.
(b) RESELLER agrees to keep the Confidential Information in the
strictest confidence, and the RESELLER agrees that it will not, directly or
indirectly, publish or disclose, or authorize the publication or disclosure of,
or assist any third party in publishing or disclosing, any Confidential
Information to anyone other than employees of the RESELLER, but only to the
extent necessary for the RESELLER to perform the services and subject in each
such case to the RESELLER using its best efforts to ensure that the persons to
whom Confidential Information is disclosed keep such information confidential
and do not use such Confidential Information except for the purposes for which
the disclosure is made. RESELLER agrees to comply with ACCUPOLL's policies and
regulations, as may be reasonably established from time to time, for the
protection of its Confidential Information. RESELLER shall use "best efforts" to
ensure potential clients execute reasonable ACCUPOLL provided Confidentiality
Agreements to assist in the protection of ACCUPOLL Confidential Information. The
breach and unauthorized disclosure by anyone outside of RESELLER direct
organization (employees and/or RESELLER) shall not be considered a violation by
RESELLER and the prosecution of any such unauthorized disclosure by outside
persons or entities shall be the sole responsibility of ACCUPOLL.
(c) The RESELLER's confidentiality obligations shall continue with
respect to each item of Confidential Information, including after the
termination of this agreement, until such time as the RESELLER can show that any
such item of Confidential Information (i) has legally and properly entered the
public domain through a source other than the RESELLER and through no fault of
the RESELLER, (ii) has legally and properly been received from an unrelated
Confidential 2 of 7
third party through no breach of any agreement with ACCUPOLL and without an
obligation to keep it confidential, (iii) was known to the RESELLER or was in
the RESELLER's possession, without any obligation to keep it confidential, prior
to the receipt of such item of Confidential Information from ACCUPOLL, or (iv)
after one year following the date of termination of this agreement with
ACCUPOLL.
(d) RESELLER acknowledges that the Confidential Information is of a
special, unique and extraordinary character and for that reason ACCUPOLL will be
irreparably damaged in the event that the confidentiality or non-circumvention
obligations imposed upon RESELLER, as set forth herein, are not specifically
enforced. Accordingly, the RESELLER agrees that ACCUPOLL shall be entitled, at
its election, to institute and prosecute proceedings against the RESELLER, as
set forth herein, in any court of competent jurisdiction, either at law or
equity, to: (a) obtain damages for breach of the obligations hereunder; (b)
enforce specific performance of said obligations, or both. Such remedies are
cumulative and not exclusive and shall be in addition to any and all other
remedies which ACCUPOLL may have, at law or in equity, in the event the RESELLER
breaches any of its obligations hereunder. The parties hereto confirm that the
covenants in this Agreement are expressly deemed to cover acts of negligence and
any inadvertent disclosure or violation of the terms herein.
9. MUTUAL INDEMNIFICATION. RESELLER and ACCUPOLL hereby agree to
indemnify, defend and hold harmless each other, their respective directors,
officers, shareholders, employees, agents and representatives, .from and against
any and all claims, losses, and damages arising out of or relating to the
services.
10. MISCELLANEOUS.
10.1 ENTIRE AGREEMENT. Except as otherwise provided herein, this
agreement constitutes the entire agreement between the parties, and all prior
negotiations, representations, or agreements between the parties, whether oral
or written, are superceded by this agreement. This agreement may only be
modified by an agreement in writing executed by the parties hereto.
10.2 AUTHORITY AND BINDING EFFECT. The undersigned individuals and/or
entities executing this agreement on behalf of their respective parties
represent and warrant that said individuals are authorized to enter into this
agreement on behalf of such parties, that appropriate corporate or other
resolutions have been passed and obtained, and that this agreement shall be
binding upon same. This agreement shall be binding upon and inure to the benefit
of the respective successors, assigns or personal representative, and heirs of
the parties. Neither this agreement nor any of its provisions are assignable by
either of the contracting parties. This agreement shall inure to the benefit of
and be binding upon their respective successors in interest and personal
representatives and shall extend to their controlled corporations, partnerships,
trusts, proprietorships, affiliates, agents, trustees or executives.
10.3 NOTICES. All notices, requests, demands, and other communications
provided for hereunder shall be in writing or by facsimile transmission and
shall be deemed to have been duly given:
(i) On the date of service if delivered in person or by facsimile
transmission (with the facsimile confirmation of transmission receipt acting as
confirmation of service when sent); or
(ii) Three (3) days after mailing by first class, registered or
certified mail, postage prepaid, and properly addressed as follows:
If to ACCUPOLL: AccuPoll Inc.
00000 Xxx Xxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
Attn: Chief Financial Officer
If to RESELLER AmCad, LLC
00000 X. Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
Attn: X. Xxxxxxxx
or at such other address as the party affected may designate in a written notice
in compliance with this Section.
Confidential 3 of 7
10.4 ARBITRATION. Any controversy or claim arising out of or relating
to this agreement, or breach thereof, shall be settled by arbitration at Orange
County, California, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association and the judgment upon the award rendered by the
Arbitrator(s) may be entered in any court having jurisdiction thereof. Such
arbitration shall be held within 60 days after Notice of Arbitration is served
on either party and the prevailing party shall be entitled to recover its
reasonable legal fees and the cost of arbitration from the other party.
10.5 ATTORNEYS' FEES. In the event that any party shall bring an action
in connection with the performance, breach or interpretation of this agreement,
then the prevailing party in such action, as determined by the court or other
body having jurisdiction, shall be entitled to recover from the losing party in
such action, as determined by the court or other body having jurisdiction, all
reasonable costs and expenses of litigation or arbitration, including reasonable
attorneys' fees, court costs, costs of investigation and other costs reasonably
related to such proceeding, in such amounts as may be determined in the
discretion of the court or other body having jurisdiction.
10.6 SECTION HEADINGS. The various section headings are inserted for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement or any section hereof.
10.7 SEVERABILITY. In the event that any provisions, or portions
thereof, of this agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, shall not be affected thereby.
10.8 COUNTERPARTS. This agreement may be executed in one or more
counterparts, all of which together shall constitute a single agreement, each of
which shall be an original for all purposes.
10.9 GOVERNING LAW. This agreement has been entered into and executed
in the State of California and shall be interpreted in accordance with the laws
of said state.
10.10 ENTIRE AGREEMENT. This agreement, and any exhibits attached
hereto, sets forth the entire understanding of the parties and may only be
amended, modified or terminated by an instrument in writing signed by the
parties thereto.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
date set forth above.
"Agreed" "Agreed"
/s/ Xxxxx Xxxxx /s/ Xxxxx X. Xxxxx
Signature ("ACCUPOL ") Signature ("RESELLER")
Xxxxx Xxxxx Xxxxx X. Xxxxx
Print Name Print Name
12/22/03 12/30/03
Date Date
Confidential 4 of 7
