ELCOM TECHNOLOGIES CORPORATION
MANUFACTURER SALES REPRESENTATIVE & DISTRIBUTION AGREEMENT
This Agreement is entered into this ______ day of March, 1996 by and between
Elcom Technologies Corporation, a Pennsylvania Corporation with offices at 00
Xxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxx (hereinafter "ELCOM") and
a corporation with offices located in (hereinafter
the "SALES REPRESENTATIVE").
BACKGROUND:
WHEREAS, ELCOM has developed and manufactures certain electronic devices that
are described more fully on the attached Exhibit A (hereinafter referred to
collectively as the "PRODUCTS"); and
WHEREAS, SALES REPRESENTATIVE has represented that it has the abllity and is
desirous of selling and marketing the PRODUCTS; and
WHEREAS, ELCOM desires to appoint SALES REPRESENTATIVE to sell and market the
PRODUCTS to a certain geographic area only.
NOW, THEREFORE, in consideration of the promises and agreements set forth
herein, the parties, each intending to be legally bound hereby, do promise and
agree as follows:
1. PRIOR AGREEMENTS
1.1 Prior to the date of this Agreement SALES REPRESENTATIVE and ELCOM may or
may not have entered into prior oral and/or written agreements concerning the
sale of the ELCOM'S PRODUCTS. Except for any ELCOM Non-Disclosure Agreement, all
prior oral or written agreements of any kind or nature whatsoever associated
with the sale of the PRODUCTS are hereby terminated and declared NULL AND VOID
for all purposes whatsoever.
2. DEFINITIONS
As used in this Agreement, the following terms shall have the meaning specified:
2.1 "Territory" shall mean the places indicated on Exhibit B attached hereto.
2.2 "Sale" or "Sales" shall mean actual shipments of PRODUCTS by ELCOM to a
Customer, and the issuing of an invoice to such Customer for payment for
PRODUCTS. Acceptance or booking of a purchase order by ELCOM shall not
constitute a Sale hereunder.
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2.3 "Customer" shall mean any individual, corporation, partnership or any other
business organization which purchases PRODUCTS from ELCOM.
3. APPOINTMENT OF SALES REPRESENTATIVE
3.1 Except as provided in Section 4 herein, ELCOM hereby appoints SALES
REPRESENTATIVE for the Term of this Agreement, as an exclusive sales
representative for the sale and marketing of the PRODUCTS in the Territory.
SALES REPRESENTATIVE understands and agrees that except as provided for in
Section 4 herein, SALES REPRESENTATIVE has exclusive rights to sell and/or
market the PRODUCTS in the Territory. SALES REPRESENTATIVE understands that he
does not have any rights to sell or market any of the PRODUCTS to any customer
located outside of the Territory unless said Customer is a direct branch or
subsidiary of a Customer headquartered in the Territory and said SALES
REPRESENTATIVE obtains the prior written consent of ELCOM to sell to said
customers located outside the Territory.
3.2 It is expressly understood and agreed that ELCOM hereby retains all rights
not expressly granted hereunder to SALES REPRESENTATIVE as to the sale and
marketing of the PRODUCTS.
3.3 SALES REPRESENTATIVE shall have no right to appoint any SUB-SALES
REPRESENTATIVE or distributor or other Representatives of any kind or nature
whatsoever without the prior written approval of the ELCOM.
3.4 SALES REPRESENTATIVE may purchase PRODUCTS directly from ELCOM for the
purpose of reselling said PRODUCTS only with the express written consent of
ELCOM. In the event of said purchase of PRODUCTS for the purpose of resale,
SALES REPRESENTATIVE shall pay ELCOM directly for all PRODUCTS received by SALES
REPRESENTATIVE.
4. SALES BY ELCOM IN THE TERRITORY
4.1 Except as provided for in Section 4.2 herein, during the Term of this
Agreement, ELCOM (or its subsidiary corporation) may sell PRODUCTS directly to
any Customer of any kind or nature whatsoever located in the Territory. In the
event that SALES REPRESENTATIVE initiates a contact with a potential customer
located within the Territory and ELCOM converts said customer to an ELCOM
account, SALES REPRESENTATIVE shall be due a one percent (1.0%) sales
commissions on all sales to said customer for the remaining original Term (not
including extensions or renewals) of this Agreement. SALES REPRESENTATIVE shall
not be due any other commissions, including any commissions under Section 9
herein, or any other compensation of any kind associated with sales to said
customer. ELCOM is specifically authorized hereunder to sell the PRODUCTS
through various television marketing mediums including but not limited to QVC
and the Home Shopping Network. SALES REPRESENTATIVE shall not be due any
commissions of any kind whatsoever for any sales placed through said television
marketing mediums.
4.2 During the Term of this Agreement, ELCOM shall not hire any Sales
Representative to sell or market the PRODUCTS in the Territory.
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5. TERM
5.1 This Agreement shall be effective as of the date of execution indicated
above and shall extend for a period of one (1) year from the date of execution
unless terminated in accordance with Section 17 herein.
6. DUTIES OF SALES REPRESENTATIVE AND RESTRICTIONS OF SALES REPRESENTATIVE
6.1 SALES REPRESENTATIVE shall use its best efforts in the Territory to promote
the Sales of the PRODUCTS, and obtain orders for the Sale of the PRODUCTS,
subject to written acceptance by ELCOM, at such prices and upon such terms and
conditions as ELCOM shall communicate to the SALES REPRESENTATIVE from time to
time.
6.2 SALES REPRESENTATIVE shall meet all of its obligations outlined in Exhibit
C attached hereto. Failure by SALES REPRESENTATIVE to meet any of its
obligations outlined in Exhibit C attached hereto shall be a material breach of
this Agreement.
6.3 SALES REPRESENTATIVE shall quote only such prices of PRODUCTS, terms and
conditions of sale, and make only such representations concerning PRODUCTS as to
quality, performance, capacity, and capability, as may be currently in effect
and authorized in writing by ELCOM. SALES REPRESENTATIVE will not make any
representation, guarantee or warranty with respect to PRODUCTS except as
authorized in writing by ELCOM.
6.4 SALES REPRESENTATIVE shall, on a monthly basis, report in writing to ELCOM
the prospects for future Sales of PRODUCTS in the Territory, including Sales
Forecasts, and the nature of the SALES REPRESENTATIVE'S operations and efforts
on behalf of ELCOM within the Territory.
6.5 SALES REPRESENTATIVE shall make no allowances or adjustments in accounts or
authorize any Customer to return any PRODUCTS, unless given specific advance
Return Material Authorization ("RAM") in writing by ELCOM.
6.6 Except as authorized in writing from ELCOM, SALES REPRESENTATIVE shall not
collect any payment of any kind or nature whatsoever associated with the Sale of
the PRODUCTS. Upon the request of ELCOM, SALES REPRESENTATIVE shall assist ELCOM
in the collection of payments due ELCOM.
6.7 SALES REPRESENTATIVE shall, at the SALES REPRESENTATIVE'S expense, send one
or more authorized attendees to sales training meetings which will be scheduled
from time to time by ELCOM.
6.8 SALES REPRESENTATIVE shall, in performance of tasks under the terms of this
Agreement, comply with all applicable state, Federal and local statutes and
regulations. SALES REPRESENTATIVE shall be responsible for reasonably
familiarizing itself with any applicable laws and with all compliance
requirements related thereto.
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6.9 SALES REPRESENTATIVE shall be solely responsible for the payment of all
expenses incurred by it in the course of its performance hereunder, including,
but not limited to, travel, entertainment, and compensation of its salesmen and
other employees. SALES REPRESENTATIVE shall maintain workers' compensation and
other insurance as required by applicable law, and shall be solely responsible
for all other incidents and obligations that it incurs as an independent
contractor.
6.10 SALES REPRESENTATIVE must notify ELCOM in writing and receive prior written
authorization from an Officer of ELCOM before making any formal presentation to
any potential customer for any reason whatsoever associated with the PRODUCTS.
6.11 ELCOM specifically reserves the right to withhold permission from SALES
REPRESENTATIVE to contact any potential customer for any reason whatsoever. Any
decision by ELCOM in this respect shall be final and binding on the SALES
REPRESENTATIVE for all purposes whatsoever.
6.12 In the event that SALES REPRESENTATIVE does not comply with all provisions
of this Section 6, SALES REPRESENTATIVE shall not be entitled to any sales
commission under Section 9 herein for any reason whatsoever associated with said
transaction in violation of this Section 6.
6.13 All orders placed by SALES REPRESENTATIVE shall include the quantity and
name of each PRODUCT ordered and the method of shipment and shall be subject to
acceptance by the ELCOM. ELCOM specifically reserves the right to accept and/or
reject any or all orders placed by SALES REPRESENTATIVE for any reason
whatsoever.
6.14 SALES REPRESENTATIVE shall have no authority either implied or express to
bind ELCOM in any way whatsoever for any reason whatsoever.
7. DUTIES OF ELCOM
7.1 ELCOM shall supply SALES REPRESENTATIVE with reasonable quantities of
advertising and selling literature, samples, displays, drawings, and engineering
or other Product data as ELCOM may have available and which would be helpful in
advancing the Sales of PRODUCTS. SALES REPRESENTATIVE shall make effective use
of such items in the Territory, in accordance with its own best judgment and at
its own expense, and not be knowingly wasteful of such items.
7.2 Except as provided for in Section 4 herein, ELCOM shall in all instances
advise SALES REPRESENTATIVE of any inquiries regarding the purchase of PRODUCTS
received from any Customer or potential Customer in the Territory. Except as
provided for in Section 4 herein, any and all orders for PRODUCTS from Customers
in the Territory for shipment to such Customers in the Territory will be treated
as orders submitted by SALES REPRESENTATIVE, whether obtained by SALES
REPRESENTATIVE or by ELCOM, and a Full Commission shall be paid on
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any Sale resulting from such orders to SALES REPRESENTATIVE in accordance with
Section 9 herein.
8. ORDER ACCEPTANCE AND SHIPMENTS
8.1 All orders for Sale of PRODUCTS resulting from solicitation by SALES
REPRESENTATIVE shall become binding on ELCOM only upon acceptance in writing by
ELCOM. ELCOM may, at any time and for any reason, reject any orders for Sale of
the PRODUCTS submitted by SALES REPRESENTATIVE or any Customer. ELCOM shall have
no liability to SALES REPRESENTATIVE as a result of such rejection of any orders
submitted by SALES REPRESENTATIVE or any Customer. SALES REPRESENTATIVE shall
not have the authority to accept any order on behalf of ELCOM for any reason
whatsoever.
8.2 All PRODUCTS will be shipped by ELCOM directly to the Customer from ELCOM'S
facility. Except for PRODUCTs purchased directly by SALES REPRESENTATIVE for
resale, all payments due under any invoice shall be made directly to ELCOM.
SALES REPRESENTATIVE shall not have the authority to collect funds or accept
payment on any invoices issued to Customers by ELCOM.
8.3 ELCOM may change or withdraw any quotation or acceptance of any order at
any time without obtaining the consent of SALES REPRESENTATIVE. ELCOM shall have
no liability to SALES REPRESENTATIVE for any such change or withdrawal, nor
shall SALES REPRESENTATIVE be entitled to any compensation in any form for any
such change or withdrawal.
9. COMMISSIONS
9.1 The sole source of compensation to SALES REPRESENTATIVE shall be
commissions payable pursuant to the terms of this Agreement and delineated in
this Section 9. SALES REPRESENTATIVE shall not receive any other compensation
from ELCOM for services rendered or for the reimbursement of any expenses
incurred by SALES REPRESENTATIVE pursuant to this Agreement.
9.2 Except as provided in Section 9.8 herein, SALES REPRESENTATIVE shall be
entitled to a sales commission of three percent (3.0%) of the Net Billing price
(as defined at 9.3 below) of all direct sales placed directly by SALES
REPRESENTATIVE, accepted by the COMPANY, shipped by the COMPANY and complying
with all of the Terms and Conditions of this Agreement.
9.3 Net Billing price shall include only the price of any PRODUCTS sold. Net
Billing price shall not include any of the following:
(a) Taxes, sales or otherwise
(b) Insurance
(c) Freight and/or shipping
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(d) Commission
(f) Discounts, allowances or adjustments
9.4 All sales commissions due under this Agreement shall be paid to SALES
REPRESENTATIVE within forty-five (45) days of shipment by the COMPANY to the
customer. In the event that the COMPANY does not receive payment in full for
PRODUCTS shipped to the customer within ninety (90) days of shipment of PRODUCTS
to the customer, SALES REPRESENTATIVE shall have said commissions previously
paid by COMPANY charged against SALES REPRESENTATIVES current and future
commissions due under this Agreement.
9.5 The COMPANY shall not reimburse the SALES REPRESENTATIVE for any expenses
of any kind or nature whatsoever for any reason whatsoever without the prior
written consent of an Officer of the COMPANY.
9.6 COMPANY and SALES REPRESENTATIVE understand that any commission percentages
due under this paragraph may be subject to adjustment as agreed upon by the
COMPANY and SALES REPRESENTATIVE.
9.7 In the event that SALES REPRESENTATIVE purchases PRODUCTS directly from
ELCOM for the purpose of reselling said PRODUCTS or for any other reason
whatsoever, SALES REPRESENTATIVE shall be due its regular commission under
Section 9 herein.
9.8 This Sales Commission Schedule does not apply to any Licensing Agreements
between the COMPANY and any customer. Sales commissions in such event shall not
be the subject of this Agreement.
10. LIABILITY
10.1 SALES REPRESENTATIVE SHALL HAVE NO CLAIM AND MAKE NO CLAIM UNDER THIS
AGREEMENT, AGAINST ELCOM FOR COMPENSATION, DAMAGES, OR OTHERWISE, INCLUDING BUT
NOT LIMITED TO ANY CLAIM BASED ON THE FAILURE OF ELCOM TO MAKE SALES OF PRODUCTS
UNDER ORDERS SOLICITED BY SALES REPRESENTATIVE FOR ANY REASON WHATSOEVER EVEN if
DUE TO THE FAULT OF ELCOM EITHER DURING THE TIME THIS AGREEMENT IS IN EFFECT OR
THEREAFTER, EXCEPT FOR COMMISSIONS DUE SALES REPRESENTATIVE AS EXPRESSLY
PROVIDED FOR IN THIS AGREEMENT. ELCOM SHALL NOT BE LIABLE TO ANY EXTENT TO
REPRESENTATIVE EXCEPT FOR SUCH COMMISSIONS AND, IN PARTICULAR, SHALL NOT BE
LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
11. WARRANTIES AND OBLIGATIONS
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11.1 ELCOM represents and warrants that it has the right and power to enter into
this Agreement and that there are no other agreements with any other party in
conflict with such grant.
11.2 ELCOM further represents and warrants that it has no actual knowledge that
the PRODUCT infringes on any valid rights of any third party.
11.3 SALES REPRESENTATIVE represents and warrants that it will use its best
efforts to promote, market, and sell the PRODUCTS.
12. NOTICES
12.1 Notice required to be given pursuant to this Agreement shall be in writing
and mailed by certified or registered mail, return receipt requested, or
delivered by a national overnight express service.
13. INTANGIBLE PROPERTY RIGHTS
13.1 ELCOM shall retain all right, title, and interest of any kind or nature
whatsoever in the PRODUCTS, any trademarks or tradenames associated with the
PRODUCTS, all technology used in the PRODUCTS or used to develop the PRODUCTS,
and to any modifications or improvements made thereto. SALES REPRESENTATIVE
shall not obtain any rights of any kind or nature whatsoever in the PRODUCTS or
anything associated with the PRODUCTS as a result of its responsibilities
hereunder. SALES REPRESENTATIVE agrees to execute any documents reasonably
requested by the ELCOM to effect any of the above provisions including a Non-
Disclosure Agreement consistent with Exhibit D attached hereto.
13.2 SALES REPRESENTATIVE acknowledges ELCOM'S exclusive rights in the PRODUCTS
and that the PRODUCTS are unique and original to the ELCOM and that ELCOM is the
owner thereof and the owner of all trademarks, tradenames, patents, and
technology associated with the PRODUCTS. Unless otherwise permitted by law,
SALES REPRESENTATIVE shall not, at any time during or after the Term of this
Agreement, dispute or contest, directly or indirectly, ELCOM'S exclusive right
and title to the PRODUCTS or trademarks and/or tradenames associated with the
PRODUCTS.
13.3 SALES REPRESENTATIVE shall have no rights to duplicate, translate,
decompile, reverse engineer, or adapt the PRODUCTS without ELCOM'S prior written
consent, nor shall SALES REPRESENTATIVE attempt to develop any PRODUCTS that are
similar in any way to the PRODUCTS.
14. PRODUCT WARRANTY
14.1 The warranty with respect to the PRODUCTS is as described in the warranty
agreement provided with each PRODUCT. This is the only warranty offered by
ELCOM. ELCOM does not warrant that the PRODUCTS will meet the requirements of
any end user.
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14.2 ELCOM does not extend to SALES REPRESENTATIVE any additional warranties,
express or implied, and SALES REPRESENTATIVE waives any and all claims to
damages.
14.3 Upon receipt of any warranty claim that is made in a timely and prompt
fashion, ELCOM shall make reasonable efforts to correct any significant error in
the PRODUCTS, provided such error related to the proper functioning of the
PRODUCTS and has not been caused by negligence on the part of the SALES
REPRESENTATIVE or any third party, malfunction, or other causes external to the
PRODUCTS. ELCOM'S liability is limited to replacement of the PRODUCTS.
14.4 THE WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES OR
CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN NO EVENT SHALL ELCOM BE
LIABLE FOR DAMAGES, DIRECT OR INDIRECT, INCLUDING INCIDENTAL OR CONSEQUENTIAL
DAMAGES SUFFERED BY SALES REPRESENTATIVE, CUSTOMER, END USER, OR OTHER THIRD
PARTY, ARISING FROM BREACH OF ANY WARRANTY, NEGLIGENCE, OR ANY OTHER LEGAL
GROUND OF ACTION.
14.5 SALES REPRESENTATIVE shall be liable for any representations of warranties
made by it without written approval of ELCOM.
15. CONFIDENTIALITY
15.1 It is recognized that during the course of its work with ELCOM, SALES
REPRESENTATIVE may have occasion to review, or receive information that is
considered by ELCOM to be confidential or proprietary, including information
relating to the PRODUCTS, including inventions, patent, trademark and copyright
applications, improvements, know-how, specifications, drawings, cost data,
process flow diagrams, customer and supplier lists, pricing and/or marketing
information, bills, ideas, and/or any other written material referring to same
(referred to herein collectively as the "CONFIDENTIAL INFORMATION"). Both during
the Term of this Agreement and for 5 years thereafter, SALES REPRESENTATIVE
agrees not to disclose such CONFIDENTIAL INFORMATION for any reason whatsoever
without the prior written consent of ELCOM.
15.2 SALES REPRESENTATIVE further agrees to use all reasonable precautions to
ensure that all such CONFIDENTIAL INFORMATION is properly protected and kept
from unauthorized persons or disclosure.
15.3 If requested by ELCOM, SALES REPRESENTATIVE agrees to promptly return to
ELCOM all materials, writings, equipment, models, mechanisms, marketing and
pricing information, and the like obtained from or through ELCOM including, but
not limited to, all CONFIDENTIAL INFORMATION, all of which SALES REPRESENTATIVE
recognizes as the sole and exclusive property of ELCOM.
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15.4 SALES REPRESENTATIVE agrees that it will not, without first obtaining the
prior written permission of ELCOM do any of the following:
(i) Directly or indirectly utilize any CONFIDENTIAL INFORMATION in its
own business;
(ii) Manufacture and/or sell any product that is based in whole or in part
on such CONFIDENTIAL INFORMATION;
(iii) Disclose such CONFIDENTIAL INFORMATION to any third party.
16. NONCOMPETITION
16.1 During the Term of this Agreement, SALES REPRESENTATIVE shall not serve as
a distributor or SALES REPRESENTATIVE in connection with any product that is
directly or indirectly competitive with any of the PRODUCTS that SALES
REPRESENTATIVE is distributing, promoting, or selling on behalf of ELCOM without
first obtaining the ELCOM'S written consent.
17. TERMINATION
The following termination rights are in addition to the termination rights that
may be provided elsewhere in this Agreement.
17.1 Immediate Right of Termination. ELCOM shall have the right to immediately
terminate this Agreement by giving written notice to SALES REPRESENTATIVE in the
event that any of the following occurs:
(i) SALES REPRESENTATIVE files a petition in bankruptcy or is adjudicated
bankrupt or insolvent, or makes an assignment for the benefit of
creditors, or an arrangement pursuant to any bankruptcy law, or if SALES
REPRESENTATIVE discontinues or dissolves its business or if a receiver is
appointed for SALES REPRESENTATIVE or for SALES REPRESENTATIVE'S business
and such receiver is not discharged within thirty (30) days.
(ii) ELCOM becomes aware of any illegal, unfair, or deceptive business
practices or unethical conduct whatsoever by SALES REPRESENTATIVE, whether
or not related to the PRODUCTS. ELCOM shall in its sole discretion make all
determinations as to what is a violation of this Section 17.1(ii).
17.2 Right to Terminate Upon Breach. Either party may terminate this Agreement
upon thirty (30) days written notice to the other party in the event of a breach
of any material provisions of this Agreement by the other party.
17.3 Right to Terminate Upon Failure to Perform. ELCOM shall have the right to
terminate this Agreement upon thirty (30) days written notice for failure to
meet Performance Goals as mutually agreed upon in Exhibit C attached hereto.
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17.4 Right to Terminate Upon Notice. Either party shall have the right to
terminate this Agreement at any time and for any reason upon ninety (90) day's
written notice to the other party, such termination to become effective at the
conclusion of such ninety (90) day period.
17.5 Upon expiration or termination of this Agreement, SALES REPRESENTATIVE
shall thereafter cease the sale or distribution of the PRODUCTS.
17.6 Upon the expiration or termination of this Agreement, all rights granted to
SALES REPRESENTATIVE under this Agreement shall forthwith terminate and
immediately revert to ELCOM, and SALES REPRESENTATIVE shall discontinue all use
and/or sale of the PRODUCTS.
17.7 Upon expiration or termination of this Agreement, ELCOM will require that
SALES REPRESENTATIVE transmit to ELCOM, at no cost, all material relating to the
PRODUCTS.
17.8 It is understood and agreed that termination or expiration of this
Agreement shall not extinguish any of SALES REPRESENTATIVE'S obligations under
Sections 10, 11, 12, 13, 14 and 15 of this Agreement.
18. INFRINGEMENTS
18.1 SALES REPRESENTATIVE agrees to notify ELCOM promptly in the event SALES
REPRESENTATIVE becomes aware of any infringements of the PRODUCTS trademarks,
tradenames, or technology. ELCOM shall have the right, in its sole discretion,
to prosecute lawsuits against third persons for infringement of ELCOM'S rights
in the PRODUCTS or disclosure of CONFIDENTIAL INFORMATION. All costs and
expenses associated with such lawsuits shall be borne by the ELCOM, which shall
be entitled to any recovery received as a result thereof, whether by
adjudication or settlement.
18.2 SALES REPRESENTATIVE agrees to fully cooperate with the ELCOM and its
representatives in the prosecution of any suit associated with this Section 18.
19. INDEMNITY
19.1 SALES REPRESENTATIVE agrees to defend, indemnify, and hold ELCOM, and its
officers, directors, agents, and employees, harmless against all costs, expenses
and losses (including reasonable attorney fees and costs) incurred through
claims of third parties against ELCOM based on SALES REPRESENTATIVE'S breach of
any representations or warranties contained herein or as a result of any of
SALES REPRESENTATIVE'S actions or inactions.
20. INDEPENDENT CONTRACTOR
20.1 SALES REPRESENTATIVE'S performance of its duties and obligations under this
Agreement is in its capacity as an independent contractor. Accordingly, nothing
contained in this
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Agreement shall be construed as establishing any employer/employee, partnership,
agency, brokerage, or joint venture relationship between SALES REPRESENTATIVE
and the ELCOM.
21. JURISDICTION AND DISPUTES
21.1 This Agreement shall be governed by the laws of Pennsylvania.
21.2 All disputes hereunder shall be resolved in the applicable state or federal
courts of Pennsylvania. The parties consent to the jurisdiction of such courts,
agree to accept service of process by mail, and waive any jurisdictional or
venue defenses otherwise available.
22. AGREEMENT BINDING ON SUCCESSORS
22.1 This Agreement shall be binding on and shall inure to the benefit of the
parties hereto, and their heirs, administrators, successors, and assigns.
23. WAIVER
23.1 No waiver by either party of any default shall be deemed as a waiver of any
prior or subsequent default of the same or other provisions of this Agreement.
24. SEVERABILITY
24.1 If any provisions hereof is held invalid or unenforceable by a court of
competent jurisdiction, such invalidity shall not effect the validity or
operation of any other provision, and such invalid provision shall be deemed to
be severed from the Agreement.
25. ASSIGNABILITY
25.1 The rights granted hereunder are personal to SALES REPRESENTATIVE and may
not be assigned by any act of SALES REPRESENTATIVE or by operation of law except
with the written consent of the ELCOM.
26. INTEGRATION
26.1 This Agreement and the Exhibits attached hereto and referred to herein
constitute the entire understanding of the parties, and revokes and supersedes
all prior agreements between the parties and is intended as a final expression
of the Agreement. It shall not be modified or amended except in writing signed
by the parties hereto. This Agreement shall take precedence over any other
documents that may be in conflict therewith.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have each caused to be affixed hereto it or his/her hand and seal the day
indicated.
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Elcom Technologies Corporation SALES REPRESENTATIVE
------------------------------ --------------------------------
Signature Signature
Xxxxxx X. Xxxx
------------------------------ --------------------------------
Printed Name
President
------------------------------ --------------------------------
Title
------------------------------ --------------------------------
Date Date
MANUFACTURER SALES REPRESENTATIVE & DISTRIBUTION
AGREEMENT
EXHIBIT A
---------
Product List
------------
ezPHONE
ezTV
exAUDIO
ezCOMM
ezGUARD
ezVIEW
MANUFACTURER SALES REPRESENTATIVE & DISTRIBUTION AGREEMENT
EXHIBIT B
---------
SALES REPRESENTATIVE TERRITORY
The TERRITORY consists of the following states:
MANUFACTURER SALES REPRESENTATIVE & DISTRIBUTION AGREEMENT
EXHIBIT C
---------
PERFORMANCE GOALS OF SALES REPRESENTATIVE
In addition to all other obligations of SALES REPRESENTATIVE under the attached
MANUFACTURER SALES REPRESENTATIVE & DISTRIBUTION AGREEMENT, SALES REPRESENTATIVE
hereby agrees to purchase directly from ELCOM the following dollar quantities of
each of the PRODUCTS no later than the Launch Dates of the PRODUCTS, as
indicated below:
EXPECTED REQUIRED INITIAL
PRODUCT LAUNCH DATE PURCHASE AMOUNT
------- ----------- ---------------
ezPHONE April, 1996 $ 50,000.00
ezTV April, 1996 $ 50,000.00
ezAUDIO May, 1996 $ 50,000.00
ezGUARD June, 1996 $ 50,000.00
ezCOM June, 1996 $ 50,000.00
ezVIEW June, 1996 $ 50,000.00
-----------
Total $300,000.00
SALES REPRESENTATIVE shall purchase the above PRODUCTS directly from ELCOM at
ELCOM's Level One (Distributor/Reseller) price. SALES REPRESENTATIVE hereby
agrees to make payment directly to ELCOM for the above dollar amounts upon
receipt of said PRODUCTS by SALES REPRESENTATIVE from ELCOM. In the event that
SALES REPRESENTATIVE does not fullfill all of its obligations under this Exhibit
C, SALES REPRESENTATIVE shall be in material breach of the attached MANUFACTURER
SALES REPRESENTATIVE & DISTRIBUTION AGREEMENT.
Alternatively, SALES REPRESENTATIVE can also satisfy the requirements of this
Exhibit C by obtaining a Purchase Order from a customer(s), acceptable to ELCOM,
for the dollar amounts listed above no later then the Launch dates, indicated
above. The total amount of all Purchase Orders required under this Exhibit C is
$300,000.00. SALES REPRESENTATIVE shall be entitled to a standard three percent
(3.0%) commission on any Purchase Orders placed under this paragraph.
The requirements of this Exhibit C have been established by ELCOM in
consideration of ELCOM granting certain exclusive selling rights in the
TERRITORY to SALES REPRESENTATIVE as outlined in the attached MANUFACTURER SALES
REPRESENTATIVE & DISTRIBUTION AGREEMENT.
____________________ _______________________
SALES REPRESENTATIVE DATE
EXHIBIT D
SALES REPRESENTATIVE
NON-DISCLOSURE AGREEMENT
------------------------
THIS Agreement is made and entered into effective this_______ day of__________
1996, by and between Elcom Technologies Corporation (hereinafter "ELCOM") a
Pennsylvania Corporation, with offices located at 00 Xxxxx Xxxxxx Xxxxxxx,
Xxxxxxx, XX 00000 and (hereinafter "SALES REPRESENTATIVE").
WHEREAS, ELCOM desires to disclose to SALES REPRESENTATIVE certain of the
following valuable information developed by or being used by ELCOM associated
with ELCOM'S products:
. Specifications
. Designs
. Plans
. Drawings
. Computer Software
. Prototypes
. Patents
. Any and all Power Line Communication Technology and patents and/or
patent or trademark filings
. Marketing information and plans
. Product pricing information
. Product cost information
. Documents expressly marked confidential
For purposes of this Agreement, all of the above information shall herein be
referred to collectively as the "CONFIDENTIAL INFORMATION"; and
WHEREAS, SALES REPRESENTATIVE requires the disclosure of said CONFIDENTIAL
INFORMATION in order to perform its duty as a SALES REPRESENTATIVE of ELCOM.
NOW, THEREFORE, in consideration of the nature of the anticipated disclosures,
the business relationship between the parties and the promises and agreements
set forth herein, the parties each intending to be legally bound hereby do
promise and agree as follows:
1. During the term of this Agreement and for a period of five (5) years
thereafter, SALES REPRESENTATIVE shall not disclose to any person for any reason
whatsoever any CONFIDENTIAL INFORMATION without the prior written consent of an
Officer of ELCOM.
2. SALES REPRESENTATIVE agrees to protect from disclosure all CONFIDENTIAL
INFORMATION.
3. No license or other right of any kind or nature whatsoever is either
granted or implied by the conveying of CONFIDENTIAL INFORMATION to SALES
REPRESENTATIVE. None of the CONFIDENTIAL INFORMATION which may be disclosed or
exchanged by ELCOM shall constitute any representation, warranty, assurance,
guarantee or inducement to the receiving party of any kind, and, in particular,
with respect to the non-infringement of trademarks, patents, copyrights, mask
protection rights, or any other intellectual property rights, or other rights of
third persons.
4. Neither this Agreement nor the disclosure or receipt of CONFIDENTIAL
INFORMATION shall constitute or imply any promise or intention to make any
purchase of products or services by ELCOM or its affiliated companies or any
commitment by ELCOM or its affiliated companies with respect to the present or
future marketing of any product or service.
5. All CONFIDENTIAL INFORMATION shall remain the property of ELCOM for any and
all purposes whatsoever and all tangible representation of the CONFIDENTIAL
INFORMATION shall be returned upon request of ELCOM with items being either
personally delivered by the receiving party or sent via registered mail or via
overnight mail service. SALES REPRESENTATIVE shall make no copies of
CONFIDENTIAL INFORMATION without the prior written consent of ELCOM.
6. The receiving party agrees that it will not, without the prior written
consent of an Officer of ELCOM, transmit, directly, or indirectly, the
CONFIDENTIAL INFORMATION received hereunder or any portion thereof to any person
for any reason whatsoever.
7. SALES REPRESENTATIVE agrees that all of its obligations undertaken herein
shall survive and continue after any termination of this agreement.
8. Damages. In the event of a breach of this Agreement by SALES
REPRESENTATIVE, in addition to monetary damages of any kind or nature
whatsoever, ELCOM shall be entitled to any and all other forms of legal and/or
equitable relief including but not limited to injunctive relief of any kind.
9. This AGREEMENT constitutes the entire understanding between the parties
hereto as to the CONFIDENTIAL INFORMATION and merges all prior discussions
between them relating thereto.
10. No amendment or modification of this AGREEMENT shall be valid or binding on
the parties unless made in writing and signed on behalf of each of the parties
by the respective duly authorized officers or representatives.
11. TO THE EXTENT THAT any provisions or covenants of this AGREEMENT are found
by a court of competent jurisdiction to be invalid or unenforceable, those
provisions shall be reformed or modified so as to be enforceable and valid.
12. The parties are familiar with the principles of Pennsylvania commercial
law, and desire and agree that the laws of Pennsylvania shall apply in any
dispute arising with respect to this AGREEMENT. The parties agree to accept the
personal juiisdiction and venue of the Federal and State courts of the
Commonwealth of Pennsylvania in any dispute arising with respect of this
AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this agreement on the respective
dates entered below.
_____________________________________ ____________________________________
Elcom Technologies Corporation SALES REPRESENTATIVE
By: Xxxxxx X. Xxxx, President
---------------------------------- ____________________________________
(Printed Name & Title)
___________________________________ ____________________________________
Date Date
