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Pixsys, Inc.
Domestic Sales Representation Agreement
SANDAB
THIS AGREEMENT made this 21st day of December, 1993, by and between Pixsys,
Inc., a corporation incorporated under the laws of the State
of Colorado having its principal office at 5680 Central Avenue, Unit B, Boulder,
Colorado 80301 ("Manufacturer"), and SANDAB, a corporation
incorporated under the laws of the State of Michigan having its principal office
at 570 South Glenhurst, Birmingham, Michigan 48009
("Representative"), as follows:
1. APPOINTMENT AND ACCEPTANCE - Manufacturer appoints Representative as its
exclusive representative to promote the sale of and sell
its Products (indicated in Provision #4 hereof; in the territory (indicated in
Provision #2 hereof); and Representative accepts the appointment and
agrees to sell and promote the sale of the Manufacturer's Products.
2. TERRITORY - Representative's Territory shall consist of the following:
Authorized Accounts in Michigan, Indiana, Ohio, Pennsylvania and
West Virginia. Accounts in Ontario, Canada will be considered to be part of the
Territory until such time as Manufacturer opts to terminate
Ontario as part of Representative's Territory. Ontario can, at Manufacturer's
option, be terminated independently of the other territories under the
terms outlined in Provisions #10 and 11 hereof. "Authorized Accounts" are as
defined in Provision #3 hereof.
3. AUTHORIZED ACCOUNTS/UNAUTHORIZED ACCOUNTS - "Unauthorized Accounts" shall be
defined as those accounts which are
specifically excluded from Representative's Territory and for which all
promotion, sales and service will be provided directly by Manufacturer.
"Authorized Accounts" are defined as those accounts which have not been
designated as Unauthorized Accounts by the Manufacturer. The
Representative is expected to promote for sale or sell the Manufacturer's
Products to Authorized Accounts. The Representative is not to promote
for sale or sell the Manufacturer's Products to Unauthorized Accounts except
where authorized by Manufacturer in writing in advance.
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Where such authorization is given, such accounts will be considered to be
Authorized Accounts.
Accounts in which the immediate or ultimate use of the Manufacturer's product is
in a hospital, clinic, medical center or other medical
environment shall be considered Unauthorized Accounts. Accounts in which the
Manufacturer's Product is used in dental or orthodontic
applications but not in other medical applications shall be considered
Authorized Accounts.
In recognition of Representative's prior efforts to develop sales and potential
sales among the following accounts, commissions will be paid to the
Representative on all payments received from these accounts prior to September
l, 1995. Commissions related to these accounts shall be paid in a
manner similar to that described for payment of commissions after termination as
defined in Provision #11 of this Agreement. The effective
termination date for these accounts only shall be August 31, 1993.
Representative shall receive commissions based on sales to the following
accounts under the terms of this paragraph:
Nomos Corporation
Picker International
Reality Imaging
4. PRODUCTS - The Products of the Manufacturer to be promoted for sale and sold
by the Representative are those products and services listed
on Manufacturer's current domestic price list(s). Products or services added to
the price list(s) from time to time are also to be promoted for sale
and sold by the Representative.
5. FORM OF COMPENSATION - Representative's compensation for service performed
hereunder shall be calculated as a percentage of the "net
invoice price" of the Manufacturer's Products invoiced to Authorized Accounts in
Representative's territory. However, when an order is initiated
in one territory and shipped into one or more different territories, the
Manufacturer will split the full commission among the Representatives
whose territories are involved. The Manufacturer will make this determination
in consultation with the Representatives involved based upon split
commission requests submitted in writing by those Representatives and will
advise the interested Representatives. The sum of the split
commission shares shall add up to a full commission.
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6. COMPUTATION AND PAYMENT OF COMMISSION
a) Commissions wall be paid at a rate of 10% of net invoice price on the sale
of all catalog items sold in Representative's territory at the
Manufacturer's standard quantity discount schedule. No commissions will be paid
under the terms of this Agreement on the sale of non-catalog
products or products sold at non-standard discounts. Commissions paid in these
circumstances will be paid under the terms of a separate
agreement and at the sole discretion of the company.
b) Commissions are due and payable on or before the twentieth (20th) day of the
month immediately following the month in which Manufacturer
receives payment from the customer as invoiced. If the commissions are not paid
when due, the amount not paid will accrue interest at 8% per
annum from the date due until paid.
c) Commissions for the sale of Products sold under a lease agreement are due
and payable on or before the twentieth (20th) day of the month
immediately following the month in which Manufacturer receives payment from the
leasing company. If Manufacturer does not receive full
payment at the time the lease is signed, commission will be paid in installments
as a percentage of the payments received by Manufacturer.
d) Manufacturer will send Representative a monthly tabulation of all invoices
with purchase order numbers, quantity, price and commission due.
e) At the time of payment of commissions to Representative, Manufacturer will
send Representative a commission statement showing:
i) commissions due and owing Representative for that period and
any prior periods, and
ii) commissions being paid (listing the invoices on which
commissions are being paid).
f) "Net invoice price" shall mean the total price at which an order is invoiced
to the customer including any quantity or other discounts and/or 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), but
excluding shipping and insurance costs, sales, use and excise taxes, and any
tariffs, duties and export fees involved in international shipments.
g) There shall be deducted from any sums due Representative:
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i) 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
ii) 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, Manufacturer will pay
Representative its percentage of commission applicable at the
time of the original sale upon the net proceeds of such
collection.
h) "Order" shall mean any commitment to purchase Manufacturer's Products which
is invoiced to an authorized customer in Representative's
territory.
7. ACCEPTANCE OF ORDERS - All orders are subject to acceptance or rejection by
an authorized officer of 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 notification shall be transmitted to the
Representative. At least once every month Manufacturer shall supply
Representative with copies of all orders received directly by Manufacturer,
copies of all shipping notices, and copies of all quotations made to Authorized
Accounts in the territory.
8. TERMS OF SALE - All sales shall be at prices and upon terms established by
Manufacturer, and it shall have the right, in its 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 promises without the
Manufacturer's prior approval.
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9. REPRESENTATIVE'S RELATIONSHIP AND CONDUCT OF BUSINESS
a) Representative shall maintain a sales office in the territory and devote
such time as may be reasonably necessary to sell and promote
Manufacturer's Products within the territory.
b) Representative will:
i) conduct all of its business in its own name and in such manner as
it may see fit,
ii) pay all expenses whatever of its office and activities, and
iii) be responsible for the acts and expenses of its employees.
c) 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.
d) Representative shall not, without Manufacturer's prior written approval,
alter, enlarge, or limit orders, make representations or guarantees
concerning Manufacturer's Products or accept the return of, or make any
allowance for such products.
e) Representative shall furnish to Manufacturer's Credit Department any
information which it may have from time to time relative to the credit
standing of any of its customers.
f) Representative shall abide by Manufacturer's policies and communicate same
to Manufacturer's accounts.
g) Manufacturer shall furnish Representative, at no expense to Representative,
samples, catalogs, literature and any other material necessary for
the proper promotion and sale of its Products in the territory. Any literature
which is not used or samples or other equipment belonging to
Manufacturer shall be returned to the Manufacturer at its request.
h) Manufacturer will keep Representative fully informed about sales and
promotional policies and programs affecting the Representative's
territory.
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10. TERMS OF AGREEMENT AND TERMINATION
This Agreement shall be effective on the date it is signed by both Manufacturer
and Representative as noted below and shall continue in force
until such time as it is terminated by either party under the terms of this
Provision #10. This Agreement may be terminated:
a) By Manufacturer:
i) immediately upon written notice to Representative by registered
or certified mail if there is a change of fifty (50%) percent or
more of the present ownership or control of the Representative's
business without Manufacturer's written consent, or
ii) if Representative, without Manufacturer's written consent,
offers, promotes or sells any product which is competitive with
any Product Representative is to offer, promote or sell for
Manufacturer in accordance with the terms of the Agreement, and
written notice of this breach of the Agreement is mailed to or
served upon Representative, the breach is not cured (10) days
after receipt of such notice by Representative, and written
notice of termination is mailed to or served upon Representative.
b) By Representative:
i) if Manufacturer, without Representative's written consent offers,
promotes or sells any product which is competitive with any
Product Representative is offering or selling for any other
manufacturer, and written notice of this breach of the Agreement
is mailed to or served upon Manufacturer, the breach is not cured
within ten (10) days after receipt of such notice by the
Manufacturer, and written notice of termination is mailed to or
served upon Manufacturer, or
ii) immediately upon written notice to Manufacturer by Registered or
Certified mail in the event Manufacturer sells substantially all
of the assets of its business or there is a change of fifty (50%)
percent or more of its present ownership, or it is merged with
another firm, corporation or business and Manufacturer is not the
surviving company.
c) By either party
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i) in the event of the other party's unreasonable and repeated
failure to perform the terms and conditions of this Agreement,
written notice of the failure is mailed to or served upon that
party, the failure is not cured within thirty (30) days after
receipt of such notice, and written notice of termination is
mailed to or served on that party, or
ii) upon immediate written notice to the other party in the event
that party has filed or has filed against it a petition in
bankruptcy (which is not dismissed within thirty (30) days after
it is filed) or that party makes an assignment for the benefit of
creditors, or
iii) with or without cause, when written notice of the termination is
mailed to or served upon the other party, termination being
effective 90 days after the other party receives written
notification of termination; or
d) By mutual written agreement.
11. RIGHTS UPON TERMINATION
a) Upon termination of this Agreement for any reason, Representative shall be
entitled to commissions or split commissions on all orders invoiced to
authorized customers in Representatives territory which are dated or
communicated to Manufacturer prior to the effective date of termination,
regardless of when such orders are shipped, or releases and shipments on such
orders take place, according to the following schedule:
Full commission:
on all invoices paid by Authorized Accounts within the 12 months
immediately following the termination date
50% of full commission:
on invoices paid by Authorized Accounts within months 13 through
24 following the termination date
0% (no commission):
no commission will be paid after month 24 following the
termination date
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b) Commissions referred to in this Provision #11 shall be paid on or before the
twentieth (20th) day of the month following the month in which the Manufacturer
receives payment for the orders.
12. GENERAL - This Agreement contains the entire understanding of 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 written consent.
13. CONSTRUCTION OF AGREEMENT - This Agreement shall be construed according to
the laws of the State of Colorado.
14. DISPUTES AND ARBITRATION - The parties agree that any disputes or questions
arising hereunder including the construction or application of this Agreement
shall be settled by arbitration in accordance with the rules of the American
Arbitration Association then in force, and that the arbitration hearings shall
be held in or about Boulder, Colorado, USA. If the parties cannot agree upon an
arbitrator within ten (10) days after demand by either of them, either or both
parties may request the American Arbitration Association to name a panel of five
(5) arbitrators. The Manufacturer shall strike the names of two (2) on this
list, the Representative shall then strike two (2) names, and the remaining
name shall be the arbitrator. The decision of the arbitrator shall be final and
binding upon the parties both as to law and to fact, and shall not be
appealable to any court in any jurisdiction. The expenses of the arbitrator
shall be shared equally by the parties, unless the arbitrator determines
that the expenses shall be otherwise assessed.
15. NOTICES - All notices, demands or other communications by either party to
the other shall be in writing and shall be effective upon personal
delivery or if sent by mail seventy-two (72) hours after deposited in the United
States mail, first class postage, prepaid, Registered or Certified,
and all such notices given by mail shall be sent and addressed as follows until
such time as another address is given by notice pursuant to this
Provision #15:
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To Manufacturer:
Pixsys, Inc.
568O-B Central Avenue
Boulder, CO 80301
(303) 447-0248
(303) 447-3905 (facsimile)
To Representative:
SANDAB, Inc.
570 South Glenhurst
Birmingham, MI 48009
(313) 644-0011
(313) 644-6965 (facsimile)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written in multiple counterparts, each of which shall be
considered an original.
MANUFACTURER: Pixsys, Inc.
By: /S/ TIMOTHY L. FEAVER
Name: Timothy L. Feaver
Title: Vice President, Sales & Marketing
REPRESENTATIVE: SANDAB, Inc.
By: /S/ SVEN ANDEN
Name: Sven Anden
Title: President
ADDENDUM
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This document will serve as Addendum #1, dated 21 June, 1994 to contract between
SANDAB INC. (Consultant)and Pixsys Inc. (Company)
dated December 1993 (the "Agreement").
1. The Consultant will send to the Company monthly, by the 10th of the
month, a report summarizing previous month's activities. Each
quarter the Consultant will prepare a quarterly forecast for the
Territory.
2. Concerning the Pixsys/Imageware bundled package, the Company will pay
its regular commission of 10% on all Pixsys hardware sold by
Consultant, per Agreement. The Company will pay the Consultant 10%
commission rate on the 30% discount it receives from Imageware, for
selling Imageware/Pixsys bundled software.
3. Regarding the Imageware/Pixsys bundled software commission indicated
in #2 above, will only apply to sales within the Consultant's
Territory, as stated in the original agreement.
4. Future commissions due as a result of sales to the Company's
authorized VAR's and OEM's, located within the Consultant's Territory,
will result in 5% commission being paid to Consultant when the sale
originates outside the Consultant's Territory but that was purchased
within the Territory. Pixsys hardware and software sold in the
Consultant's Territory by a source located outside the Consultant's
Territory will result in 5% commission paid to the Consultant.
5. Activity regarding CDI, headquartered in Grand Rapids, Michigan, is
specifically excluded from the conditions stated in #4 above.
6. The State of Indiana is a non-exclusive part of the Consultant's
Territory. A list of potential Indiana accounts will be assembled by
both parties, and the Consultant has the first right to any Automotive
related accounts located in Indiana and any other accounts that are
not listed within the State of Indiana.
Agreed:
Pixsys, Inc. SANDAB INC.
By: /S/ JEFFREY J. HILLER By: /S/ SVEN ANDEN
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Title: V.P. Title: PRESIDENT
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