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PATRIOT SCIENTIFIC CORPORATION
EXHIBIT 10.11
Sales Contractual Agreement dated March 19, 1996 between the
Company and Evolve Software, Inc.
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SALES CONTRACTUAL AGREEMENT
AGREEMENT dated this 19 day of March, 1996 by and between Patriot Scientific
Corporation the (PRINCIPAL) having its primary office at 12875 Brookprinter
Place, Suite A, Poway, CA 92064 (hereinafter called the "Company"), Frank A.
O'Donnell and Evolve Software, Inc., having its principal office and place of
business at 8 Pasteur, Suite 170, Irvine, CA 92718 (hereinafter called the
"Representative".)
WITNESSETH
In consideration of the mutual promises and agreements herein contained, the
parties agree as follows:
1. APPOINTMENT.
Subject to the terms and conditions of this Agreement, the Company hereby
appoints the Representative as its exclusive representative to the customer
(hereinafter called the "Customer") described in Schedule A of this Agreement to
promote the sale of, and solicit orders for the ShBoom Microprocessor
(hereinafter called the "Product") specified in Schedule B of the Agreement; and
the Representative hereby accepts such appointment. During the term of this
agreement, the Company will not appoint any other person, firm or corporation to
act as its agent or distributor of Products to this customer for the uses
described in Schedule A.
Nothing in this agreement shall preclude the Company from licensing or selling
the Product or its patents or the ShBoom-architecture technology or other
Company owned technology to any company or entity for any use whatsoever.
Nothing is this agreement shall preclude the Company from selling the Product,
without commission to Representative, to any company or entity not listed in
Schedule A or in good faith selling the Product to those customers listed in
Schedule A for purposes other than described therein. However, should the
Company sell Product to customers in Schedule A for other than the purposes
described therein, but it be ascertained that the Product is being used for the
purposes described in Schedule A, then the Company's only obligation and
liability shall be to make the commission payments on such Product as provided
in Section 3 below.
Should one of the Customers listed in Schedule A desire to license or acquire
rights to any of the Company's technology during the term of this agreement, no
payments, commissions or finders fees or other compensation shall be payable to
Representative unless agreed to in advance in writing. However, should the
Representative advise the Company in writing that one of the Customers is
desirous of pursuing licensing or other arrangements (other than product
purchases covered by this agreement), and the Company is not already in
discussions with such satisfactory to the Company directly though your efforts,
then the Company shall pay the commissions provided in Section 3, or such other
amount as may be mutually agreed, on the net invoice proceeds actually received
by the Company during the term of this Agreement.
The Company will take reasonable efforts to preclude but cannot assure that
other distributors or representatives that may be appointed will not solicit
Schedule A Customers for the uses described therein. Should it be ascertained
that other Company distributors or representatives are selling Product to
Customers for the purposes described in Schedule A, then the Company's only
obligation and liability shall be to make the commission payments on such
Product as provided in Section 3 below.
2. REPRESENTATIVE'S DUTIES.
The Representative agrees:
(a) to devote its best efforts diligently to solicit orders for Products to the
Customer and to provide effective coverage of the Customer for such purposes;
(b) to maintain a regular place of business suitably located to serve the
Customer;
(c) to employ at all times sufficient personnel of sufficient ability and
experience to properly and efficiently discharge the Representative's obligation
under this Agreement;
(d) to provide the Company with such progress reports, monthly forecasts, lists
of customers and prospective customers and other information with respect to the
Customer as the Company may reasonable request;
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(e) to attend sales meetings at the request of the Company;
(f) at the Company's request, to have Representative's salesman discuss warranty
claims in respect of Products sold by the Company within the Customer;
(g) to cooperate, at the Company's request, with the Company or with another
representative of the company for the purpose of securing potential order or
contracts for the Company which are commissionable to the Representative;
(h) to refrain from any action which would effect or tend to effect acceptance
of any order or contract for Products by the Representative on behalf of the
Company it being the intent hereof that all orders for Products shall be subject
to written acceptance by the Company at such prices and on such terms as the
Company may approve;
(i) to refrain from any action which would create or tend to create any
obligation, express or implied, on behalf of the Company, it being the intent
hereof that all activities of the Representative pursuant to this Agreement
shall be as an independent contractor and not as an agent of the Company.
3. COMMISSION.
(a) As full compensation for the Representative's services hereunder, the
Company agrees to pay to the Representative, and the Representative agrees to
accept, commission payments on the net invoice price of Products shipped by the
Company to the Customer at the rate of 5% for Purchase Orders entered through
the Representative, for purposes of this agreement, goods shall be deemed to
have been shipped when delivered by the Company to a carrier.
(b) Commissions shall be computed on the net amount of the invoices rendered
after all the following items have been deducted; (i) cash and trade discounts;
(ii) special packing charges, if any, and freight and transportation or
transportation allowances form shipping point; (iii) sales and excise taxes;
(iv) C.O.D. charges; and (v) insurance on shipments. No commission shall be paid
on tooling costs, on charges for the repair or replacement of damaged Products
or returned Products.
(c) Commissions due to the Representative shall be computed by the Company for
each calendar month during the term of the Agreement and shall be paid by the
Company on a monthly basis by the 10th of the month following the collection of
monies by the Company from the Customer.
4. COMPANY'S DUTIES.
The Company agrees during the term of the agreement to provide the
Representative with copies of invoices, acknowledgments or other response by the
Company to any order from the Customer;
5. PRICES.
The Company reserves the right, without prior notice to change the list prices
for any one or more of the Products.
6. WAIVERS.
Neither party shall by any action, delay omission or otherwise be deemed to have
waived any of its rights or remedies under this contract. A waive by either
parties of any right or remedy under this any Agreement on one occasion shall
not be construed as a bar to or waiver of occasion, nor shall either party be
liable for exercising or failing to exercise any such right or remedy.
7. RESERVATION OF COMPANY'S RIGHTS.
The Representative shall acquire no rights under this Agreement in any
proprietary property or data, or trademarks or trade names of the Company and
agrees to cause employees not to disclose to any other, either during or after
the expiration of the term of this Agreement, any of the company's confidential
information received by it hereunder.
8. NONASSIGNABILITY.
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This Agreement may not be assigned, transferred, or subcontracted in whole or in
part by the Representative without the prior written consent of the Company. In
the event of insolvency of either parts, this contract shall terminate
immediately at the election of the other party.
9. DURATION.
(a) This Agreement shall become effective as of the date first above written,
and shall continue in full force and effect for two (2) years, subject to
Representative producing aggregate orders of at least $____________ during the
first twelve months of this agreement otherwise this agreement shall terminate.
(b) In the event that either party fails substantially to perform its duties and
obligation, then the other party fails substantially to perform its duties and
obligation, then the other party shall have the right to terminate this
Agreement. Termination shall be made by written notice by registered letter to
the defaulting party. This Agreement will terminate 60 days after notice by
registered letter without prejudice of any claims for compensation of damages.
In the event that either party shall file a petition of bankruptcy or make a
general assignment for the benefit of creditors or otherwise acknowledge
insolvency or shall be adjudged bankrupt or insolvent or be placed into a
complete liquidation (other than by an amalgamation reorganization or merger or
consolidation of such party), then the other party shall have the right to
terminate this Agreement forthwith upon notice by the registered letter.
(c) Upon termination, the Representative will be entitled to commissions as
follows:
(1) The Company will pay the Representative and the Representative will accept
commissions equal to those monies due on all product shipped to date.
10 . APPLICABLE LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of California.
11. NOTICES.
Any notices provided for under this Agreement shall be in writing and shall be
deemed effectively given when delivered in registered or certified mail
addressed to the party to receive such notice at the address of such party
indicated herein or at such different address as such party may hereafter
designate in writing by notice similarly given.
12 . COMPLETENESS OF AGREEMENT.
This Agreement expresses the complete and final understanding of the parties,
supersedes all previously signed and unsigned contracts, agreements,
understandings and negotiations between the parties and shall not be subjects to
change or modification except in writing duly signed by both parties .
IN WITNESS WHEREOF the parties hereto have executed this agreement as of the day
and year first above written.
Patriot Scientific Corporation
By: /s/ ELWOOD G. NORRIS
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Frank A. O'Donnell and Evolve Software, Inc.
By: /s/ FRANK A. O'DONNELL
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SCHEDULE A
The Class of Customers for which Representative is responsible for is as
follows:
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Set-Top Box, Satellite and Cable Modem Manufactures: General Instrument,
Scientific Atlanta, Thompson, Pioneer, Hewlett Packard, Tellabs, Motorola, Tele
Communications Inc., Tolgrade, DSC, X-10, Broadban Tech., Antec, AT & T,
Divicon/Sagem, Pace, Zenith, Phillips and Mitsubishi for use in Set-Top Box,
Satellite and Cable Modem equipment .
Additional prospect customers will be added to Schedule A by written
notification and will be mutually agreed upon.
SCHEDULE B
ShBoom Microprocessor 32-Bit Risc Processor