EXHIBIT 10.11
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SEACHANGE INTERNATIONAL, INC.
SALES AND MARKETING REPRESENTATIVE AGREEMENT
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AGREEMENT dated as of the 11th of October, 1996, by and between SeaChange
International, Inc., a Delaware corporation (the "Company") and Media Power S.
n. c. (the "Representative").
1. Appointment. Subject to the terms and conditions hereof, the
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Company hereby appoints the Representative as its sales and marketing
representative with respect to the marketing, sale and/or licensing of the
Company's products (the "Products") and services ("Services") in the Territory
(as hereinafter defined), and the Representative hereby accepts such
appointment. In addition, the Representative will provide certain assistance to
the Company as provided herein in the Secondary Territory (as hereinafter
defined). For purposes hereof, "Territory" shall mean Europe, other than the
United Kingdom and Ireland. "Secondary Territory" shall mean the United Kingdom
and Ireland. "Products" and "Services" include all of the Company's current
products and services as well as all other products and services introduced by
the Company during the term hereof.
2. Term. This Agreement shall commence on the date hereof and, unless
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sooner terminated by mutual consent or in accordance with this Agreement, shall
have an initial term ending December 31, 1997. The initial term shall be
automatically extended for an additional term of one year, unless either party
otherwise notifies the other party at least 120 days prior to the end of the
initial term, and, if so extended, this Agreement shall terminate on December
31, 1998, unless sooner terminated by mutual consent or in accordance with this
Agreement.
3. Representative's Duties and Obligations. In addition to such other
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duties and obligations as are set forth in this Agreement, the Representative
shall:
(i) maintain an office and devote its full business time and best
efforts to the promotion of the Company's interests and the sale and/or
licensing of its Products or Services to customers within the Territory;
(ii) solicit and encourage the continued demand for Products by
dealers, customers and end-users in the Territory (collectively, "Customers") of
the Company and render such assistance as the Company may require to enable the
Company to determine the acceptability of any new customers;
(iii) develop and coordinate a network of sales representatives
and/or dealers for the Company's Products in the Territory in accordance with
the provisions of Section 7 hereof;
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(iv) promptly transmit to the Company all orders and offers to
purchase and/or license Products taken or received by the Representative;
(v) assist the Company in providing installation, training and
support services to Customers;
(vi) render such reports concerning current and prospective customers,
trade conditions within the Territory and related matters as may from time to
time be reasonably requested by the Company;
(vii) develop marketing and sales materials appropriate for use in the
Territory, including modification of the Company's sales and marketing materials
subject to the Company's approval of such materials;
(viii) cooperate with the Company in the sales and marketing of the
Products to customers in the Secondary Territory as reasonably requested by the
Company;
(ix) fully and promptly answer all communications from the Company
and its Customers;
(x) keep the Company advised of any complaints made by Customers or
others as to the Products;
(xi) render such assistance as the Company may reasonably request
with respect to credit and collection matters;
(xii) furnish to the Company's finance department any information that
it may have from time to time relative to the financial condition of the
Company's Customers;
(xiii) solicit orders for Products and Services within the Territory
at the prices furnished to the Representative by the Company from time to time
in the Company's price lists or quotations and on the standard terms and
conditions of quotation or sale specified from time to time by the Company
(except as set forth in Section 6 hereof); and
(xiv) at all times abide by the Company's policies as communicated to
the Representative by the Company and communicate such policies to the
Customers.
4. The Company's Duties and Obligations.
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The Company shall provide Customers with the Products and customer
support. The Company shall bear responsibility for collection of all Customer
payments. The Company agrees to assist the Representative by providing an
adequate supply of data sheets, price lists, catalogues, sales literature and
other promotional brochures at no charge to the Representative. The Company
also agrees to provide to the Representative one demonstration unit of each
Product. The Company shall be primarily responsible for providing installation,
customer
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training and maintenance and support for the Products. Product training and
field sales support will also be provided by the Company at no charge to the
Representative at the Company's discretion.
5. Customer Database and Reports.
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(a) The Representative will develop and maintain on behalf of the Company
a database of information on Customers and potential customers. The
database shall at all times be the property of the Company. The
Representative will provide the Company with a copy of the database at
the end of each quarter and upon the request of the Company. Upon
termination of this Agreement, the Representative will deliver all copies
of the database to the Company.
(b) The Representative shall submit to the Company on a timely basis all
reports required from time to time to be submitted in connection with the
Representative's performance of this Agreement, including but not limited
to, the following: (i) a contact report with respect to all significant
calls, and other information regarding the Customers or the Territory,
and (ii) a monthly marketing and sales plan. The Representative shall
promptly forward to the Company copies of all proposals made by the
Representative on behalf of the Company to Customers or prospective
Customers in the Territory. The Company reserves the right to change the
specifications of any and all Products, remove any or all Products from
the market, delay shipments, refuse to quote, refuse to accept any order,
or cancel any existing order for any Products.
6. Customer Quotes.
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The Representative may provide quotes for the Products at prices no
less than the Company's then-current prices and on the Company's standard terms
and conditions. Any proposal at other prices or terms and conditions must be
approved in advance by the Company. The Company will provide the Representative
with copies of its price lists, configuration guides, updates and any other
tools it has for use in preparing quotations.
7. Dealer Network.
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The Representative may solicit orders directly from Customers. In
addition, the Representative will develop on behalf of the Company a network of
sales representatives and/or dealers (the "Dealer Network") for the Products in
the Territory . Such dealers and sales representatives shall be acceptable to
the Company in its sole discretion and shall enter into appropriate dealer or
sales representative agreements with the Company under terms and conditions
acceptable to the Company. The Representative will coordinate the activities of
the Dealer Network and will provide marketing support and other assistance to
the Dealer Network.
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8. Orders, Sale, Price and Payment Terms.
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(a) All sales of Products by the Company (except as set forth in Section
6) shall be at prices and upon terms established by the Company and the
Company shall have the right, from time to time in its sole discretion and
without notice, to establish, modify and amend such prices and other terms
and conditions of sale.
(b) All orders for and offers to purchase Products are subject to
acceptance by the Company at its principal office. The Company reserves the
right in its sole discretion to accept or reject any such order or offer, or
to allocate the supply of any Products, without incurring any liability to
the Representative for commissions, damages or otherwise. In addition, the
Company may cancel or delay the order without liability, either in whole or
in part, at any time after acceptance. The Company further reserves the right
to withdraw any Products from sale or license, at any time and without
notice, without incurring any liability to the Representative for
commissions, damages or otherwise, notwithstanding that orders for withdrawn
Products may have been accepted prior to such withdrawal. The Company shall
send the Representative a copy of all acceptances or rejections sent by it to
Customers with respect to purchase orders procured by the Representative.
(c) The Company shall invoice all Customers directly. All payments due
from Customers shall be made directly to the Company. In the event payment
for products is made by any Customer to the Representative, the
Representative shall immediately forward such payment to the Company.
(d) It is further expressly agreed that the Representative has no
authority to accept the return of, or make any allowance with respect to, any
of the Products without the Company's prior written consent.
9. Commissions and other Compensation.
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(a) The Company shall pay to the Representative, as compensation for its
services during the term of this Agreement, a commission based on Net Product
Sales (hereinafter defined) of the Company's Products and Services to
customers located within the Territory as set forth on Exhibit B hereto. The
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term "Net Product Sales" as used herein shall mean payments actually received
by the Company on orders for Products and Services accepted by it during the
term of this Agreement, after deduction, where applicable, for (i) discounts
allowed and taken, (ii) shipping or freight charges, (iii) insurance in
transit charges, (iv) special packing charges, and (v) sales, use and similar
taxes. The Representative shall receive a commission on all customer purchase
orders issued from within the Territory to the Company and accepted by the
Company during the term of this Agreement. The Representative will not
receive a commission with respect to sales made in the Secondary Territory,
or in any area other than the Territory.
(b) Payment of commission shall be made by the Company to the
Representative on or before the 30th day of the month following the calendar
quarter of receipt by the
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Company of payment for Products from its customer. At the time of payment,
the Company shall furnish the Representative with an itemized statement
setting forth the computation of commissions.
(c) In the event of termination of this Agreement for any reason,
except as set forth in this Section 9, the Company shall be obligated to pay
commissions only with respect to sales of Products accepted by the Company
prior to termination of this Agreement. Any adjustments which may be required
pursuant to subsection (d) of this Section shall be made notwithstanding any
termination of this Agreement. Notwithstanding the foregoing, in the event
this Agreement is terminated by the Company in accordance with the provisions
of Section 15(a)(iii), and if the reason for the change in the organizational
structure is the death of a Key Employee (as hereinafter defined), the
Company will continue to pay commissions for a period of six months after the
termination.
(d) Notwithstanding anything to the contrary set forth above, there
shall be deducted from any commissions due the Representative an amount equal
to (i) commissions previously paid or credited to the Representative for
sales of Products which are thereafter returned by the customer; and (ii) the
applicable portion of commissions previously paid or credited to the
Representative for sales of Products as to which any allowance or adjustment
is credited to the customer for any reason.
(e) The Representative and the Company will agree on an acceptable
quarterly expense level for the Representative. The Company will pay the
agreed upon amount to the Representative in advance at the beginning of each
quarter. Any additional expenditures or extraordinary expenses must be
approved in advance by the Company in order to be reimbursed. The
Representative will provide appropriate documentation to the Company for all
expenses within 60 days of incurring such expenses. During the term of the
Agreement, for so long as the Representative is in compliance with the
provisions of Section 11 hereof, the quarterly expenses shall include U.S.
$47,500. Such amount may be increased by mutual agreement of the parties.
10. Independent Contractor. It is expressly agreed that the
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Representative is acting hereunder as an independent contractor and has no
authority to assume or create any obligation or make any representation,
guarantee or warranty on the Company's behalf with respect to the Products or
Services or otherwise.
11. Key Employees. Due to the presence of ▇▇. ▇▇▇▇▇▇▇▇▇▇ as an employee
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and Mr. Birra and ▇▇. ▇▇▇▇▇▇▇ as consultants (collectively, the "Key
Employees"), the Representative maintains a structural capacity that enables it
to provide the highest quality marketing, sales and support activities in regard
to the Products. For purposes hereof, during the term of the Agreement, the
Representative shall use its best effort to have the Key Employees serve as
employees or consultants, as the case may be, of the Representative.
Notwithstanding the above, the Representative shall indemnify and hold harmless
from any claim, loss, liability or expense (including court costs and reasonable
attorneys' fees) arising out of, or based upon any claim for indemnification,
reinstatement or other legal or equitable remedy brought by the Representative's
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employees or consultants, including, without any limitation, the Key Employees.
As an inducement to the Company entering into this Agreement, the Key Employees
will sign an agreement in the form attached hereto as Exhibit B.
12. Non-Competition. While this Agreement is in effect, and for a
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period of one year after its voluntary termination by the Representative or
termination by the Company after an Event of Default pursuant to Section 15(a),
the Representative shall not, directly or indirectly, market, sell or promote
the sale of, or otherwise commercially deal in or with, any products or services
within or without the Territory that will then be in competition with, or
similar to, the Products or Services.
13. Trademarks, Trade Names; Proprietary Information.
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(a) The Representative agrees (i) that it will solicit orders for the
Products only under the Company's trademarks or trade names, and (ii) to
promptly notify the Company of any infringement of any of the Company's
trademarks or trade names in the Territory. The Representative acknowledges
the Company's exclusive ownership of any and all of the Company's trademarks
and trade names (whether registered or not) and agrees not to take any action
inconsistent with the Company's ownership thereof.
(b) The Representative agrees that both during and after the term of
this Agreement it shall keep secret and not make any direct or indirect
commercial use or disclosure of any confidential, proprietary information of
the Company relating to its business, operations or any of its Products or
Services, including, without limitation, information as to product design,
product specifications, product costs, manufacturing methods, financial, or
statistical information about the Company's marketing or sales efforts, its
sources of supplies, list of customers, and contemplated business actions.
The Representative shall disclose such information only to those persons who
must have such knowledge in order to perform responsibilities hereunder and
the Representative shall take all necessary precautions and use its best
efforts to insure that such persons will likewise keep secret and not make
any direct or indirect commercial use of such information.
(c) Representative shall not copy, reverse engineer, disassemble or
decompile the Products or any software contained therein.
14. Arbitration; Injunctive Relief. Any dispute, controversy, or claim
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presented by the Representative and arising out of, in connection with, or
relating to the performance of this Agreement or its termination shall be
settled by arbitration by a single arbitrator in London, England, pursuant to
the UNCITRAL Arbitration Rules in effect on the date of this Agreement. The
appointing authority shall be the American Arbitration Association. The case
shall be administered by the American Arbitration Association in accordance with
its "Procedures for Cases under the UNCITRAL Arbitration Rules.". Any award
shall be final, binding and conclusive upon the parties and a judgment rendered
thereon may be entered in any court having jurisdiction thereof. The Company
may seek injunctive relief from a court of competent
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jurisdiction in the event of any alleged violation by the Representative of
Sections 12 or 13 hereof.
15. Termination.
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(a) If at any time during the term of this Agreement any of the
following events ("Event of Default") shall occur and be continuing, namely:
(i) either party shall cease conducting business in the normal
course; be adjudicated insolvent; make a general assignment for the
benefit of creditors; petition, apply for, suffer or permit with or
without its consent the appointment of a custodian, receiver trustee
in bankruptcy or similar officer for all or any substantial part of
its business or assets; or avail itself or become subject to any
proceeding under the Federal Bankruptcy Code or any similar state,
federal or foreign statute relating to bankruptcy, insolvency,
reorganization, receivership, arrangement, adjustment of debts,
dissolution or liquidation, which proceeding is not dismissed within
one hundred and twenty (120) days of commencement thereof; or
(ii) default shall be made by either party in the observance or
performance of any material term, covenant or agreement contained in
this Agreement for a period of thirty (30) days from the date of
receipt of written notice from the other party advising of such
default and the defaulting party has not cured such default and so
notified the other party within such thirty (30) day period; or
(iii) if there are substantial changes in the organizational
structure of the Representative;
thereupon, in any such Event of Default, the party which is not in
default, upon written notice at any time to the other party, may terminate this
Agreement.
(b) upon termination of this Agreement, the Representative shall
promptly return to the Company all sales materials, samples, display packages,
models, documents, brochures, advertising literature, demonstration copies, and
other similar materials which the Company may have furnished to the
Representative in connection with its activities hereunder. Upon any
termination of this Agreement, the Company shall not be liable to the
Representative for loss of future commissions, goodwill, creation of customers,
advertising or promotional costs or like expenses. The provisions of Sections
9(c) and (d), 12, 13 and 14 of this Agreement shall survive any termination of
this Agreement.
16. Press Releases.
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Representative will coordinate the issuance of press releases, marketing
communications and advertising regarding the Company and its Products in the
Territory, provided that the foregoing shall be subject to the approval of the
Company.
17. Possible Employment of Key Employees.
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In the event that, immediately after any termination of this Agreement,
other than pursuant to Section 15(a), the Company intends to conduct the
activities previously conducted by the Representative directly or through a
subsidiary, the Company agrees to give reasonable consideration to offering the
Key Employees positions as employees of Company or such subsidiary, but shall
have no obligation to offer any of the Key Employees employment of any kind.
18. Miscellaneous.
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(a) This Agreement constitutes the entire agreement between the
parties relative to the subject matter hereof, and supersedes all proposals,
written or oral, and all other communications between the parties relating to
the subject matter of this Agreement.
(b) This Agreement may be modified, amended or rescinded only by a
written agreement executed by both parties.
(c) The invalidity, illegality or unenforceability of any provision
of this Agreement shall in no way affect the validity, legality or
enforceability of any other provision.
(d) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that the Representative shall not assign any of its rights, duties or
obligations hereunder, all of which are personal to the Representative, without
the express written consent of the Company.
(e) The waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
(f) This Agreement and all claims arising from the relationship of
the parties contemplated herein, whether or not arising directly under this
Agreement, shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts and is executed as an instrument under seal.
(g) All notices hereunder shall be in writing and shall be deemed
given when sent by certified or registered mail, postage prepaid, return receipt
requested or by facsimile followed by delivery by courier, at the address set
forth below. The addresses for such notices may be changed from time to time
by written notice given in the manner provided for herein.
IN WITNESS WHEREOF, the undersigned has executed this Sales and Marketing
Representative Agreement as of the date first above written.
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SEACHANGE INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: President
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Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MEDIA POWER S.N.C.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: President
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Address:
EXHIBIT A
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COMMISSIONS
Two percent (2%) of Net Product Sales in the Territory up to U.S.
$1,000,000;
Two and one-half percent (2 1/2%) of any portion of Net Product Sales in
the Territory in excess of U.S. $1,000,000 through U.S. $5,000,000; and
Three percent (3%) of any portion of Net Product Sales in the Territory
in excess of U.S. $5,000,000.
Such amounts shall be cumulative during the initial term of this
Agreement. In the event the additional term becomes effective, commissions
shall be determined using the above formula considering only Net Product Sales
during such additional term.
EXHIBIT B
[The following could be including in any existing agreement with the Key
Employees]
Noncompetition and Nondisclosure Agreement
In consideration of my continued employment [as a consultant] by Media
Power __________ (the "Representative"), the undersigned (the "Employee [the
"Consultant"]") hereby agrees as follows:
1. So long as the Sales and Marketing Representative Agreement (the
"Agreement") dated as of ________________, 1996 between the Representative and
SeaChange International, Inc. ("SeaChange") is in effect, and for a period of
one year after voluntary termination of such Agreement by the Representative or
termination of such Agreement by SeaChange pursuant to Section 15(a) thereof,
the Employee will not, directly or indirectly, market, sell or promote the sale
of, or otherwise commercially deal in or with, any products or services in
Europe (other than the United Kingdom and Ireland), the Middle East or Africa
that will then be in competition with the products and services offered by
SeaChange.
2. The Employee agrees that both during and after the term of the
Agreement the Employee shall keep secret and not make any direct or indirect
commercial use or disclosure of any confidential proprietary information of
SeaChange relating to its business, operations or any of its products or
services, including, without limitation, information as to product design,
product specifications, product costs, manufacturing methods, financial or
statistical information about SeaChange's marketing or sales efforts, its
sources of supplies, list of customers, and contemplated business actions. The
Employee shall disclose such information only to those persons who must have
such knowledge in order to perform responsibilities under the Agreement and the
Employee shall take all necessary precautions and use his/her best efforts to
insure that such persons will likewise keep secret and not make any direct or
indirect commercial use of such information.
________________________________
(Signature)
