Exhibit 10.32
INDEPENDENT SALES AGENT AGREEMENT
THIS INDEPENDENT SALES AGENT AGREEMENT, (the "Agreement") is entered into
and made effective as of this day of October 2003 (the "Effective Date"), by and
between NUWAVE TECHNOLOGIES, INC., a Delaware corporation (the "Company") and
NEXTGEN ASSOCIATES, INC., a New Jersey Corporation (the "Independent Sales
Agent").
WITNESSETH:
WHEREAS, the Company primarily concentrates on identifying, developing and
commercializing high-margin, proprietary technologies, specifically technology
related to image and video enhancement designed to enrich picture and video
output ("Nuwave Technology"); and
WHEREAS, the Company desires to retain the Independent sales Agent, as a
non-exclusive independent contractor, to assist the Company in the marketing,
promotion, sale and distribution of the Nuwave Technology.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. RECITALS. The above recitals are true and correct and same are
incorporated herein by this reference.
2. ENGAGEMENT. The Company hereby engages the Independent Sales Agent as a
non-exclusive independent contractor to assist the Company in the marketing,
promotion, sale and distribution of the Nuwave Technology.
3. ADVERTISING. The Independent Sales Agent shall be entitled, during the
term of this Agreement, to advertise and hold itself out as an authorized
non-exclusive independent sales agent of the Nuwave Technology, and to use the
trademarks, logo, service marks and other commercial designation, whether or not
registered, used by the Company to represent or describe the Nuwave Technology
(the "Trademarks") in all advertisements and other reasonable activities
conducted by the Independent Sales Agent to promote the sale of the Nuwave
Technology. The Independent Sales Agent's use of the Trademarks in any
advertising and promotional media is conditioned upon the Independent Sales
Agent's compliance with the Company's prior approval of such advertising
materials, as well as the Independent Sales Agent's agreement to appropriately
indicate that such Trademarks are the Company's trademarks. The Independent
Sales Agent will ensure that the Nuwave Technology and related documentation
incorporate copyright and other proprietary notices in the same manner that the
Company incorporates such notices in the Nuwave Technology, or in any manner
reasonably requested by the Company. Upon termination of this Agreement, the
Independent Sales Agent will immediately cease all use of the Trademarks.
4. PRICING. All pricing for the Nuwave Technology shall be as provided by
the Company to the Independent Sales Agent in writing from time to time.
5. COMMISSION. Except for the commission to be paid to the Independent
Sales Agent by the Company as set forth herein below, the Independent Sales
Agent acknowledges and agrees that all amounts paid or payable to the Company or
the Independent Sales Agent and arising from or relating to the Nuwave
Technology shall be the exclusive property of the Company. The Independent Sales
Agent shall truthfully, accurately and efficiently complete all documents and
records, account for all monies and all the property of the Company of which it
may have custody, and will promptly deliver the same to the Company. In
consideration for the services of the Independent Sales Agent, the Company shall
pay to the Independent Sales Agent a commission equal to ninety percent (90%) of
net amounts received by the Company during the Term arising from the Independent
Sales Agent's sale of the Nuwave Technology, such amounts payable to the
Independent Sales Agent within thirty days (30) after the Company's receipt of
the sale proceeds from the sale of such Newave Technology by the Independent
Sales Agent. Net amounts are defined as revenues received from customers, net of
any agreed upon discounts and allowances; less the cost to design, produce,
ship, install and for delivery of the product. These costs shall include costs
incurred by both the company and 3rd party vendors.
6. EXPENSES. The Independent Sales Agent shall be solely responsible and
liable for all costs and expenses incurred by it in the course of providing the
services to the Company hereunder, and the Company shall have no responsibility
to reimburse the Independent Sales Agent for any such expenses.
7. TERM. The term of this Agreement shall commence on the Effective Date
and shall continue for a period of one (1) year (the "Term"); provided, however,
that either party may terminate this Agreement by providing the other at least
thirty (30) days prior written notice.
8. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that in
the performance of services hereunder, the Independent Sales Agent shall, at all
times, act as an independent contractor with respect to the Company and not as
an employee or agent of the Company, and nothing contained in this Agreement
shall be construed to create an employer/employee, joint venture, partnership,
association or other affiliation, or like relationship, between the parties, it
being specifically agreed that the relationship is and shall remain that of
independent parties to a contractual relationship. Accordingly, the Company
shall neither have nor exercise any specific control or direction over the
particular methods by which Solo performs the services hereunder. In no event
shall either party be liable for the debts or obligations of the other. The
Company will not withhold on the Independent Sales Agent's behalf any sums for
income tax, unemployment insurance, social security or any other withholding
pursuant to any law or requirement of any government body, or make available to
the Independent Sales Agent any of the benefits afforded to employees of the
Company. The Independent Sales Agent will indemnify and hold harmless the
Company, its shareholders, officers, directors, employees, agents, successors
and assigns, from any and all loss or liability arising from its failure to make
such payments, withholdings and benefits, if any.
9. INDEMNIFICATION. In addition to, and not in limitation of any other
indemnification provided herein, the Independent Sales Agent agrees to indemnify
and hold harmless the Company, its shareholders, officers, directors, employees,
2
agents, successors and assigns from any and all liability, losses, claims,
damages, costs, causes of action, judgments or settlements arising therefrom,
including reasonable attorneys' fees, at all levels of trial and appeal, caused
or asserted to be caused, directly or indirectly, by or as a result of any
breach of the terms of this Agreement or any wrongful act, omission or
negligence of the Independent Sales Agent in the performance of its duties
hereunder.
10. LIMITATION OF LIABILITY. THE COMPANY SHALL NOT BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING LOST
REVENUES OR PROFITS) OF ANY KIND DUE TO ANY CAUSE, REGARDLESS OF WHETHER THE
COMPANY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND
WITHOUT LIMITING THE FOREGOING, THE COMPANY'S MAXIMUM LIABILITY UNDER THIS
AGREEMENT TO THE INDEPENDENT SALES AGENT SHALL BE LIMITED TO THE AMOUNT RECEIVED
BY THE COMPANY AS A RESULT OF THE INDEPENDENT SALES AGENT'S EFFORTS UNDER THIS
AGREEMENT, AND AFTER DEDUCTING THE AMOUNTS PAID TO THE INDEPENDENT SALES AGENT.
11. MISCELLANEOUS.
11.1. Entire Agreement and Amendments. This Agreement constitutes
the entire agreement of the parties with respect to the subject matter hereof
and supersedes any prior agreement or understanding between the parties hereto,
and neither this Agreement nor any provision hereof may be waived, modified,
amended or, except to the extent, if any, otherwise provided in this Agreement,
terminated, except by a written agreement signed by the parties hereto.
11.2. Waivers. No waiver of any breach, default or provision
hereunder shall be considered valid unless in a writing signed by the party to
be charged therewith, and no such waiver shall be deemed a waiver of any
subsequent breach or default hereunder.
11.3. Successors and Assigns. This Agreement shall be binding upon
and against the parties hereto and their heirs, personal or other legal
representatives, administrators, successors and permitted assigns.
11.4. Negotiated Agreement. The parties to this Agreement have fully
participated in its negotiation and preparation. Accordingly, this Agreement
shall not be more strictly construed against any of the parties.
11.5. Severability. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
11.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New Jersey,
determined without regard to provisions of conflicts of laws. The parties
further agree that any action between them shall be heard in Xxxxxx County, New
3
Jersey, and expressly consent to the jurisdiction and venue of the Superior
Court of New Jersey, sitting in Xxxxxx County, New Jersey and the United States
District Court of New Jersey, sitting in Newark, New Jersey, for the
adjudication of any civil action asserted pursuant to this paragraph.
11.7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Confirmation of execution
by telex or telecopy or telefax of a facsimile signature page shall be binding
upon that party so confirming.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date written above. NUWAVE TECHNOLOGIES, INC.
By: /s/Xxxxxx Xxxxxxx, President
----------------------------------
Xxxxxx Xxxxxxx, President
NEXTGEN ASSOCIATES, INC.
By: /s/Xxxx Xxxxxx, President
----------------------------------
Xxxx Xxxxxx, President
4
