AGREEMENT
THIS AGREEMENT made this 1st day of November, 1996, by and between
VERTEX INDUSTRIES, INC., a corporation with principal offices located
at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx, 00000-0000 (hereinafter
"Vertex) and XXXXX XXXXXXXX ASSOCIATES, L.L.C., with principal offices
located at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, 00000
(hereinafter "Xxxxx Xxxxxxxx").
Xxxxx Xxxxxxxx is hereby retained by Vertex to provide services as
a sales consultant to Vertex. Xxxxx Xxxxxxxx may utilize the title,
Western Regional Manager, subject to the terms set forth hereinbelow.
It is understood and agreed that Xxxxx Xxxxxxxx is an independent
contractor which has full and complete liberty and discretion as to the
manner of performance of the work requested by Vertex within the scope
of acceptable professional standards. The methods and procedures for
such work shall be agreed upon by Vertex and Xxxxx Xxxxxxxx prior to
such performance.
It is understood that Xxxxx Xxxxxxxx or any of its employees,
is/are not employees, agents, partners or joint venturers with Vertex
for any purpose. Furthermore, neither Xxxxx Xxxxxxxx nor any person
Xxxxx Xxxxxxxx may engage in connection with any work hereunder shall be
entitled to Vertex employee benefits such as, but not limited to,
Workers' Compensation, vacation and unemployment, medical, accident or
health insurance. Xxxxx Xxxxxxxx agrees to pay all compensation and
social security taxes, if any, applicable to the services it provides.
In order for Xxxxx Xxxxxxxx to perform under this agreement,
Vertex may give it access to certain proprietary information. In
consideration of the compensation to be paid under this agreement, it is
understood that Xxxxx Xxxxxxxx will keep all such proprietary
information confidential, acknowledge that it is the property of Vertex
and hold it in secrecy and confidence. Xxxxx Xxxxxxxx further agrees
that it will not use such information for any purpose other than for
performance under this agreement and will not disclose it to any person
or entity or make any record or copy of any information or other
disclosure or embodiment of the said information without the prior
written approval of Vertex. Upon the request of Vertex, or the
termination of this agreement, whichever occurs first, Xxxxx Xxxxxxxx
agrees to return any and all materials furnished to it by Vertex. Xxxxx
Xxxxxxxx' obligation under this agreement with respect to disclosure of
proprietary information will not extend to any information that is (a)
known to Xxxxx Xxxxxxxx as of the date of this agreement from a source
other than one having an obligation of confidentiality to Vertex; (b)
hereafter becomes known to Xxxxx Xxxxxxxx independently of the
disclosure by Vertex, except from the source having an obligation of
non-disclosure to Vertex; or (c) becomes publicly known by a public use
or publication or otherwise ceases to be secret or confidential through
no fault of Xxxxx Xxxxxxxx.
It is understood that Xxxxx Xxxxxxxx assumes all risks of property
loss or damage, and of personal injury or death which may be sustained
by Xxxxx Xxxxxxxx, its employees and/or agents in connection with, or
arising out of, Xxxxx Xxxxxxxx' performance of the work under this
agreement, unless resulting from the gross negligence or intentional
misconduct of Vertex, or any agent or employee of Vertex. Xxxxx
Xxxxxxxx, and not Vertex, shall be responsible for all losses and
damages to person or property caused by the negligence or intentional
misconduct of Xxxxx Xxxxxxxx or any of its employees or agents in
performing their obligations under this agreement.
This agreement shall be non-assignable by Xxxxx Xxxxxxxx, however
Vertex may assign any of its rights hereunder. Any assignment in breach
of this agreement shall be null and void.
Xxxxx Xxxxxxxx shall receive a monthly retainer in the amount of
$6,500.00 plus reasonable expenses. Said retainer must be invoiced to
Vertex. Any single expense over $400.00 must be pre-approved by Vertex.
Xxxxx Xxxxxxxx shall submit an expense invoice at the end of each
calendar month.
In addition to the retainer set forth above, Xxxxx Xxxxxxxx shall
be entitled to a commission of one (1%) percent of gross sales generated
by it, payable upon receipt of payment in full by Vertex. Payment of
commission will be made by Vertex within fifteen (15) days, without
requiring an invoice from Xxxxx Xxxxxxxx. Xxxxx Xxxxxxxx shall be
entitled to said commission on all orders from any single customer
generated by Xxxxx Xxxxxxxx for a period of two (2) years from the
initial order, unless otherwise extended in writing by the parties.
Xxxxx Xxxxxxxx shall provide Vertex with monthly reports outlining
its plans for the following month, action taken in the previous month in
furtherance of this agreement, sales forecasts and such other and
further reasonable information Vertex requires.
Payments of retainer and expenses will be made to Xxxxx Xxxxxxxx
within thirty (30) days of receipt of an invoice by Vertex for services
rendered and expenses incurred.
This agreement will be effective as of November 1, 1996, and will
continue in effect until terminated by either party, with or without
cause, upon thirty (30) days written notice to the other party by
mailing such notice to the other party, certified mail, return receipt
requested, at the address set forth above. In the event that a party
has a change of address, it shall immediately notify the other party.
This agreement shall be interpreted according to the laws of the
State of New Jersey and the Courts of New Jersey shall have exclusive
jurisdiction over the interpretation of this agreement and any dispute
arising thereunder.
This agreement sets forth the entire agreement and understanding
between the parties hereto as to the subject matter of this agreement
and all prior discussions between the parties are merged into this
agreement. Neither party hall be bound by any conditions, definitions,
warranties or representations except as expressly provided in this
agreement or as fully set forth on or subsequent to the date hereof in
writing and signed by a duly authorized representative of the party to
be bound thereby.
VERTEX INDUSTRIES, INC.
BY: s/ Xxxxxx X. Xxxx
XXXXXX X. XXXX
XXXXX XXXXXXXX ASSOCIATES, L.L.C.
BY: s/ Xxxxx Xxxxx
XXXXX XXXXX