EXHIBIT 10.14
MANUFACTURER S REPRESENTATION AGREEMENT
This AGREEMENT made this th day of , by and
between: MICRONETICS WIRELESS INC., hereinafter referred to as
"Manufacturer" and , hereinafter
referred to as the "Representative" follows:
1. APPOINTMENT AND ACCEPTANCE - Manufacturer appoints Representative as its
exclusive selling representative to sell products enumerated in
Section 3 hereof; and Representative accepts the appointment and
agrees to sell and promote the sale of the Manufacturer's products.
2. TERRITORY - Representative's territory ("Territory") shall consist
of the states, counties, boundaries as defined in Schedule A.
3. PRODUCTS - The "Products" of the Manufacturer to be sold by
the Representative are set forth in Schedule A attached.
4. AMOUNT OF COMPENSATION - As sole, complete and full remuneration
for its services pursuant to this Agreement, Representative shall be
paid a commission for services performed hereunder which shall be paid
in the following manner:
4.1 Commission as specified in Table 4.1.1 on the net F.O.B.
invoice price, after deduction of Manufacturer's regular trade discounts
of the Manufacturer's products shipped into Representative's Territory.
No commission shall be paid or be payable except on units supplied to a
customer at the unit price.
Table 4.1.1
NET F.O.B. INVOICE PRICE COMMISSION RATE
VCO
NOISE
CONTROL
4.2 A commission as specified in Table 4.1.1. on the engineering,
development or design portion of Non-recurring engineering ("NRE") orders
that are performed by the Manufacturer, provided that the order contains
provisions for production orders or follow-on business at the time
of its issuance. Portions of the NRE paid directly to Manufacturers
sub-contractor for support of the development effort for such items
as screens, masks, probe card, etc., are excluded from commissions.
4.3 No commission shall be paid or be payable on repair work,
tooling, set up, QCI, qualification test charges made to customers, or
outside testing required by customers. Commission shall be payable
for sales to U.S. based customers in the Territory who purchase and export
Manufacturer's products for sale to third parties outside the U.S.
4.4 When engineering, execution of order, or shipments involve
different territories, the Manufacturer will split the full commission
among the Representatives whose territories are involved.
The Manufacturer will make this determination and advise the participating
Representatives at the time the order is submitted to the Manufacturer
or shortly after the manufacturer becomes aware of this fact. The sum
of the split commission shall add up to a full commission and be in
compliance with the schedule presented in Table 4.4.1.
If one of the territories has no representative the Manufacturer
shall be deemed the Representative in that territory.
Table 4.4.1
Commission Split Rate
Engineering Territory 0% 0% 70%
Procurement Territory 100% 50% 15%
Destination Territory 0% 50% 15%
5. COMPUTATION AND PAYMENT OF COMMISSION
5.1 Commissions are due and payable to Representative on or
before 30 days from the close of the month in which the Manufacturer
received payment from the customer.
5.2 During the term of this agreement Manufacturer will
copy Representative on all shipping documentation on shipments made
to Representative's Territory and copies of all invoices.
5.3 "Net invoice price" shall mean the total price at which an
order is invoiced to the customer including any increase or decrease
in the total amount of the order (even though such increase or
decrease takes place after the effective date of termination and within
the limitations of Paragraphs 9.5), but excluding shipping and
mailing costs; taxes; insurance; outside testing costs and any
allowances or discounts granted to the customers by the Manufacturer.
5.4 There shall be deducted from any sums due Representatives:
5.4.1 An amount equal to commissions previously paid or
credited on sales of Manufacturer's products, which have since been
returned by the customer or on allowances credited to the customer for
any reason by the Manufacturer; and
5.4.2 An amount equivalent to commissions previously paid
or credited on sales which Manufacturer shall not have been fully paid
by the customer whether by reason of the customer's bankruptcy,
insolvency, or any other reason which, in Manufacturer's judgment,
renders the account uncollectible (if any sums are ever realized upon
such uncollectible accounts during the term of this agreement
Manufacturer will pay Representative its percentage of commission
applicable at the time of original sales upon the net proceeds of
such collection).
5.5 "Order" shall mean a formal commitment to purchase
Manufacturer's product which calls for shipment into Representative's
territory or which is subject to split commission in accordance
with the provisions of Paragraph 4.4 hereof.
5.6 Notice of disagreement of commissions due must be given
to the Manufacturer in writing no later than two months after receipt
of Representative's copy of Manufacturer's sales order confirmation.
Manufacturer's determination, after consultation with the Representative,
shall be final.
6. ACCEPTANCE OF ORDERS - All orders are subject to acceptance or
rejection by an authorized officer or manufacturer at its home office
and to the approval of Manufacturer's Credit Department. Manufacturer
shall be responsible for all credit risks and collections. If Manufacturer
notifies customer of its acceptance or rejection of an order, a copy of
any written notifications shall be transmitted to the Representative.
Manufacturer shall supply Representative with copies of all
orders received directly by Manufacturer from his territory.
7. TERMS OF SALE - All sales shall be at prices and upon terms established
by Manufacturer, and the Manufacturer shall have the right, in its sole
discretion, from time to time, to establish, change, alter or amend
prices and other terms and conditions of sale. Representative shall not
accept orders in the Manufacturer's name or make price quotations or
delivery commitments without Manufacturer's prior approval.
8. REPRESENTATIVE'S RELATIONSHIP AND CONDUCT OF BUSINESS
8.1 Representative shall maintain a sales office in the Territory
and shall use its best efforts to sell and promote the sale of
Manufacturer's products within the territory. This means that
Representative shall communicate to Manufacturer all opportunities for
the sale of manufacturer's products in the Territory. In addition,
Representative shall be required to furnish the Manufacturer
with an annual sales forecast for the territory, by January 31 of each
year of this agreement for the next twelve months to be updated at
least quarterly. Failure to exercise best efforts to sell the
Manufacturer's products in the Territory, as determined by the
Manufacturer, shall be grounds for termination of this agreement.
8.2 Representative will be deemed to be, and will be acting as
independent contractor; neither the Representative nor its employees,
agents or assistants are employed by the Manufacturer.
Representative will be responsible for paying its own expenses; it is
understood that the Manufacturer is not to pay any traveling, office or
other expenses incurred by Representative.
Representative expressly agrees to undertake in its own name all such
expenses, and under no circumstances is to represent that the Manufacturer
is responsible for the same.
8.3 In the event that the Manufacturer is having difficulty
collecting payment from any customer in the Territory, the Representative,
at the request of the Manufacturer, shall use its best
efforts to assist the Manufacturer to collect payment from the customer
for the Manufacturer.
8.4 During the term of this Agreement, Representative shall not
represent lines competitive with those of the Manufacturer. Any such
representation shall be grounds for immediate termination, of this
agreement including the forfeiture of any commissions due. Represented
products are defined in schedule A.
8.5 Nothing in this Agreement shall be construed to constitute
Representative as the partner, employee or agent of the Manufacturer,
nor shall either party have any authority to bind the other in any
respect, it being intended that each shall remain an independent contractor
responsible only for its own actions.
8.6 CONFLICT OF INTEREST. During the term of this agreement
Representative shall not, either directly or indirectly, own, manage,
operate, control, be employed by, participate in, or be connected with
the ownership, management, operation or control of any business that provides
services or products similar to, or competitive with, those provided by
Manufacturer.
8.7 PROPRIETARY INFORMATION. Representative will ensure that no
proprietary or confidential information entrusted to Representative
by Manufacturer, is in any way communicated or disclosed to third parties
without the proper consent of Manufacturer. This information may
include but is not limited to techniques of manufacture, certain
experimental and development work, new products, inventions,
discoveries, improvements, trade secrets, customer lists or price lists.
Any violation of this provision shall be grounds for immediate termination.
8.8 Use of Company Name and Logo Type. Representative shall use
the advertising materials, literature, and other promotional materials
furnished by Manufacturer. Any other use by Representative of
Manufacturer trademarks, trade names, symbols of the company, stationery or
graphic representation of Manufacturer's products shall be approved
in writing in advance by
Manufacturer.
8.9 Representative shall furnish to Manufacturer's Credit Department
any information which it may have from time to time relative to
credit-standing of any of its customers.
8.10 Representative shall not, without Manufacturer's prior written
approval, alter, enlarge or limit orders, make representations or
guarantees concerning Manufacturer's product or
accept the return of, or make any allowance for such actions.
8.11 Representative shall abide by Manufacturer's policies and
communicate same to Manufacturer' s customers.
8.12 Manufacturer shall be solely responsible for the design,
development, supply, production and performance of its products and the
protection of its trade name. Manufacturer agrees to indemnify and hold
Representative harmless from damages or expenses whatsoever, which
Representative may sustain or incur on account of infringement or alleged
infringement of patents, trademarks, or trade names, or breach of warranty
or claimed breach of warranty in any way resulting from the sale of
Manufacturer's products. Manufacturer will indemnify Representative
from and hold it harmless against all liabilities, losses, damages,
costs or expenses, which it may at any time suffer, incur, or be
required to pay by reason of injury or death to any person or damage to
property or both caused or allegedly caused by any products sold by
manufacturer.
8.13 Manufacturer shall furnish Representative, at no expense to
Representative, samples (when applicable and available) catalogues,
literature and any other material necessary for the proper
promotion and sales of its products in the territory. All such samples,
catalogues, literature and other material shall remain the property
of Manufacturer. Any literature which is not used or samples or other
equipment belonging to Manufacturer shall be returned to the Manufacturer
at its request.
8.14 Whenever Representative takes possession of Manufacturer's
products for the purpose of delivering such products to customers or for
any other purpose, the risk of loss or damage to, or destruction of,
such products shall be borne by the Representative.
9. RIGHTS UPON TERMINATION - This agreement shall continue in effect until
and unless terminated by either party by giving not less than the number
of days of written notice of termination to the other party set forth
below, such termination to be effective on the date set forth in the notice;
9.1 Ninety days from when notice of termination is given.
9.2 Commission shall be paid on all orders calling for shipment into
Representative's Territory which are dated or communicated to
Manufacturer, and accepted by the Manufacturer, prior to the effective
date of termination.
9.3 Representative's share of split commission on orders dated or
communicated to Manufacturer, and accepted by Manufacturer, prior to the
effective date of termination.
9.4 Any commissions payable upon termination will cease if
Representative and/or its associates directly or indirectly, accept or
promote a competitive product in the Territory (See schedule A)for ninety
(90) days.
10. GENERAL - This agreement contains the entire understanding
between the parties, shall supersede any other oral or written agreements,
and shall be binding upon and inure to the benefit of the parties'
successors and assigns. It may not be modified in any way without the
written consent of both parties. Representative shall not have the
right to assign this Agreement in whole or in part
without Manufacturer's prior written consent.
11. CONSTRUCTION OF AGREEMENT - This agreement shall be construed
according to the laws of the State of New Hampshire.
12. DISPUTES - The parties agree that any disputes arising hereunder,
including the construction of application of this Agreement, must be filed
and adjudicated in the Courts of Hudson, New Hampshire.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written in multiple counterparts, each of
which shall be considered an original.
MICRONETICS WIRELESS, INC.
Manufacturer Representative
By:______________________ By:______________________
Title:___________________ Title:___________________
Date:____________________ Date:____________________
Please supply you Federal Tax Id Number below or SSN#
________________________________ ____________________________
Federal Tax ID # SSN
Schedule A
PRODUCTS
TERRITORY
