NORTH AMERICAN SALES REPRESENTATION AGREEMENT

THIS AGREEMENT is made and entered as of Month/date/year (effective date) by and between ________________(“Company”), and North American Nanotech, Inc., a [US] company incorporated in the state of Minnesota having its principle address at 12701 Welcome Lane, Burnsville, MN 55337 (“Representative”).

 

WHEREAS, Company is engaged in the design, development and manufacture of certain products,

 

WHEREAS, Representative has been engaged in the business of selling of process equipment and desires to promote the sale of certain Company products to the North America customers described in Section 1 hereof,

 

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties agree as follows:

 

1.     Appointment of Representative.  Company hereby appoints Representative, and Representative accepts the appointment, to act as Company exclusive Representative to promote and sell the Company products listed on Exhibit Ahereto, as modified and supplemented from time to time by written notice from Company to Representative (“Company Products”), to the TERRITORY listed below (the “Customer”), all in accordance with the terms of this Agreement and the marketing policies of COMPANY established from time to time:

 

TERRITORY:  North America, (other geographic areas to be mutually agreed upon)

 

2.     Term.  Subject to Section 6 hereof, the initial term of this Agreement shall be for a period of 12 (12) months commencing on effective date.  Thereafter, the term of this Agreement may be extended upon mutual agreement of the parties.  

3.     Relationship Between the Parties.  Nothing contained in this Agreement shall be construed as creating any partnership or joint venture between Representative, on the one hand, and COMPANY, or its affiliates, on the other hand. Representative undertakes to perform under the terms of this Agreement as an independent contractor promoting and soliciting sales of COMPANY products to third parties. No rights to manufacture, license, or patents are granted by this Agreement.  Representative has no right or authority to assume or create any obligation of any kind, express or implied, on behalf of or to bind COMPANY or any of its affiliates.  On termination of this Agreement for any reason, Representative shall cease immediately to use the COMPANY name and trademarks in any manner.

 

 

4.     Responsibilities of Representative.  Representative agrees:

4.1.  Sales Efforts; Account Management.  

To use its best efforts to promote and solicit sales of COMPANY Products by devoting such management, attention, manpower, time and effort as may be reasonably necessary to fully develop the available market potential for COMPANY Products with the Customer and to successfully manage COMPANY’s relationship with the Customer. Representative will promote and solicit sales of COMPANY products and will meet the sales standards set forth in Exhibit B hereto.

4.2.

To quote prices and terms and conditions furnished him in writing or from published price lists of COMPANY.  All pricing is subject to final confirmation by COMPANY.    

4.3.

To discharge, at its own expense, any and all liabilities, charges or fees imposed or incurred in transacting its business within the Territory (§1).  COMPANY shall not be obligated in any manner for expenses incurred by Representative, except as specifically authorized by COMPANY in writing.  Notwithstanding the foregoing, COMPANY will reimburse Representative for reasonable travel expenses for visits made to tradeshows and conferences and COMPANY facilities if requested in writing by COMPANY. COMPANY must approve travel to customer sites in advance.  If approved, travel expenses incurred will be invoiced to COMPANY accordingly. Airfare, ground transportation, hotel accommodations and a daily perdium will be at the responsibility of the COMPANY.          

4.4. 

Not to sell COMPANY Products purchased under this Agreement in violation of any applicable regulation issued by the United States of America or any foreign government related to the distribution or re-exportation of commodities or technical data.

4.5.

4.5.1.To report fully to COMPANY and to respect the existing COMPANY structure in terms of reporting, information transfer, joint visits, quotations, etc.

4.5.2.The Representative will report directly to the CEO (or another designated executive). 

4.6.

4.6.1.To not sell or promote for any third party

Products as specified in Exhibit C

1. Retainer & Commissions and Related Matters.

2. 1. Representative Retainer

(a)Subject to Section 5.1 COMPANY will pay Representative a retainer in the amount of $________ on the fifteenth of each month. 

(b)

1. Representative Commissions

(a) Subject to Section 5.2, COMPANY will pay Representative commission in the amount listed on Exhibit A hereto on each new sale of COMPANY Products which is obtained by Representative hereunder after the effective date and which is shipped to the Customer. All commission payments will be made within 15 days after COMPANY has received partial payment from the customer according to the payment terms specified in the purchase order.  Each commission payment will be accompanied by an accounting report of each invoice on which the commissions are computed.  Charges against commissions, based on returns or allowances, shall be made against Representative’s next payable commission until charged in full.

(b) All orders will be placed through COMPANY’s factory which manufacturers the particular product or as otherwise directed by the COMPANY.  

1. Direct Sales to Customer.  

It is not expected that the Customer will place all orders for COMPANY Products through Representative.  Customers will place all orders directly to COMPANY.  COMPANY will keep Representative advised, and COMPANY will pay Representative the commission described in Section 5.1.

5.4.

COMPANY reserves the right to accept or reject any order so as to assure that COMPANY Products will not be delivered to undesired, or legally prohibited, customers. 

6.     Termination.

6.1 Termination for Cause.  COMPANY may terminate this Agreement immediately for: (a) willful misconduct, wrongful act, willful neglect or bad faith on the part of Representative which is detrimental to the best interest of COMPANY, or (b) failure to perform Representative’s obligations as set forth in this Agreement.

6.2 Termination Upon Certain Events.  This Agreement will terminate immediately if Representative ceases to function as a concern or becomes insolvent, if bankruptcy proceedings are opened by or against Representative or over Representative’s assets or if Representative applies to a court or out of court for insolvency proceedings.

6.3 Termination at Will.  Either party to this Agreement, upon ninety (30) days written notice to the other, may terminate this Agreement for any reason.

6.4 Effect of Termination. (Other than for cause)

(a) Commissions will be paid on orders received and accepted by COMPANY prior to the effective date of termination and scheduled to be shipped thereafter in accordance with Section 

 

(b) With respect to orders received and/or accepted by COMPANY after termination, COMPANY will pay Representative a commission based on outstanding, verifiable, bona fide quotations issued in good faith prior to the effective date of termination according to the following schedule: (a) for orders received during the first ninety (90) days following the date of termination, three-quarters (3/4) of the commission otherwise payable shall be paid; and (b) for orders received during the next ninety (90) days, one-half (1/2) of the commission otherwise payable shall be paid.  

(c) On or before the effective date of any such termination, Representative shall deliver to COMPANY all sales literature, prospect lists, customer correspondence and all other property which is generated by Representative during this Agreement and which relates to COMPANY Products or to COMPANY.

(d) Neither party shall be liable to the other on account of the loss of prospective profits or anticipated sales, or on account of expenditures made in reliance upon the representation provided for herein, including, but not limited to, investments, leases or commitments, or for any other reason whatsoever arising out of or related to such termination; provided, however, that Representative will remain liable for payment of all invoices outstanding at the date of termination and COMPANY will remain liable for the payment of commissions as provided in this Section 6.4.  

7.0  Confidentiality.  Representative agrees that all information of COMPANY related to COMPANY Products, customer lists, sales techniques, operating plans, and technical information is confidential information of COMPANY and agrees to maintain all such information in confidence and not release such information to others without the written authorization of COMPANY.  The obligation of confidentiality shall survive any termination or expiration of this Agreement for a period of two (2) years.

7.1  Entire Agreement; Assignment. This Agreement contains the entire understanding of the parties, supersedes any or all other agreements presently existing or previously made between COMPANY and/or its affiliates, on the one hand, and Representative, on the other hand, and may not be modified in any way without the written consent of both parties.  Representative’s obligations under this Agreement are personal and may not be assigned or otherwise transferred without the written consent of COMPANY.

7.2  Notices. Any notice required or permitted to be given under this Agreement shall be in writing and may be personally delivered or sent by mail, telegraph, telex, or facsimile copier, and shall be deemed given when transmitted to the address given at the outset of this Agreement, or as subsequently changed by notice.

8.0           Disputes. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Minnesota, United States of America. Any dispute arising under this contract will be settled by arbitration held in Hennepin County, Minnesota, USA, under the rules of the American Arbitration Association.

 

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