EXHIBIT 10.33
SALES
REPRESENTATIVE
AGREEMENT
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THIS AGREEMENT is entered into as of September 1, 2003, between NCL &
Associates, LLC, ("Representative") and Lifestream Technologies, Inc.
("Lifestream").
WHEREAS, Lifestream is engaged in the marketing of Products (as defined below)
and desires to engage Representative to assist Lifestream in obtaining Sales of
Products to the Accounts (as defined below);
WHEREAS, Representative desires to assist Lifestream as set forth herein and
represents that it has the resources and experience necessary to render such
assistance effectively; and
WHEREAS, Lifestream and Representative have entered into a Confidentiality
Agreement, signed previously.
NOW, THEREFORE, it is mutually agreed as follows:
1. Definitions
"Product" shall mean the Lifestream cholesterol monitor and ancillary
Lifestream products, including future products.
"Accounts" shall mean those accounts specifically assigned to
Representative by Lifestream, which Accounts are set forth in full in
Exhibit A hereto. Exhibit A may be amended from time to time to include
additional accounts upon the prior written approval of Lifestream.
"Sale" shall mean a Product shipment resulting from a purchase order
from the Accounts.
2. Appointment. Subject to the terms of this Agreement, Lifestream hereby
appoints Representative as a Product Sales representative only to the
Accounts assigned hereunder. Representative shall not solicit or obtain
orders for Products from accounts other than those listed on Exhibit A
without the prior written approval of Lifestream. Changes to
Representative's Accounts will be made on Exhibit A in the section
titled "Additions" and must be signed by Lifestream.
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3. Obligations of Representative. During the term of this Agreement and
subject to the limitations of Sections 2 and 4, Representative shall:
(a) Use its best efforts to actively promote Sales of Products to
Accounts;
(b) Solicit orders for Products using only the prices and terms of
sale as, from time to time, are established by Lifestream. All
orders obtained by Representative shall be subject to
acceptance by Lifestream. Lifestream shall have no obligation
to the prospective Account to complete such order or to pay
any commission to Representative until a Sale has occurred.
Lifestream reserves the right to change its prices and terms
of sale at any time; and
(c) Maintain confidentiality as stated in the previously signed
Confidentiality Agreement.
4. Authority and Limitations of Representative
(a) In performing its obligations hereunder, Representative shall
in all respects be an independent contractor. Representative
is not an employee, partner, distributor, reseller or joint
venturer of Lifestream. Representative, its agents and
employees, shall have no authority to obligate Lifestream in
any manner whatsoever and shall not represent or hold
themselves out to have such authority.
(b) Representative shall assume sole responsibility for costs,
expenses and charges necessary or incidental to its operations
hereunder. Representative shall indemnify and hold Lifestream
harmless against all such costs, expenses and charges and all
claims and obligations of every nature and kind incurred,
contracted and created by Representative that have not been
specifically assumed in advance in writing by Lifestream.
(c) Representative shall not use the name "Lifestream
Technologies, Inc." or "Lifestream" in any publicity,
advertising, telephone listings, signs, business cards,
letterhead or in any other manner, without the prior written
approval of Lifestream. Additionally, Product sales literature
and advertising not supplied by Lifestream shall not be used
without the prior written approval of Lifestream.
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(d) Lifestream shall invoice all Accounts directly. All payments
by Accounts shall be made directly to Lifestream.
Representative shall not have authority to make formal
quotations or accept payments on behalf of Lifestream.
Representative shall instruct all its Accounts to make all
payments directly to Lifestream. If Representative should
receive any payments from any Accounts such payments shall be
forwarded promptly to Lifestream.
(e) Representative shall not have authority to make any Product
claims, written or oral, other than those claims pre-approved
by Lifestream. Representative agrees to comply with
Lifestream's directions as to the use or nonuse of any Product
claims.
5. Obligations of Lifestream. Lifestream's obligations under this
Agreement shall be limited to the following:
(a) Furnish all formal quotations and pertinent sales information
and handle all shipping and billing.
(b) From time to time, furnish Representative with such
promotional literature, data and Product bulletins as
Lifestream, in its sole discretion, deems appropriate to
Representative's performance hereunder. Some or all of the
information furnished to Representative will be confidential
and subject to the terms of the Confidentiality Agreement
between the parties. Information that is deemed confidential
in nature shall be marked as such prior to distribution to
Representative.
(c) Furnish Representative with the established prices and terms
of sale for the Products, together with any changes that may
be made by Lifestream.
(d) Pay Representative compensation for services performed under
this Agreement in the amount and under the circumstances
described in Section 6.
(e) From time to time, provide and schedule, at Lifestream's
discretion, training sessions for Representative and any of
its personnel.
6. Compensation. The sole compensation to be paid to Representative for
its performance of this Agreement shall be a per Sale commission, the
amount of which shall be determined in accordance with Exhibit A
hereto. In the event Exhibit A is amended to include additional
Accounts in accordance with Section 1 hereof, the commissions payable
with respect to such additional Accounts shall be determined by
Lifestream in its sole discretion and included in an amended Exhibit A.
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Commission shall be earned at the time of a Sale and shall be payable
monthly by the end of the month following the month in which the Sale
occurred. Certain Drug Wholesalers sales will be commissioned quarterly
due to their reporting practices. In the event accounts are extended
payment terms outside Lifestream conventional policies, commission for
those invoices shall be paid upon receipt of payments for their
invoices (i.e.- consignment sales, extended dating terms, etc.) Those
commission payments will be included in the normal end-of-next-month
commission payments.
No commission shall be paid to Representative for Sales that do not
result from the efforts of Representative. If a commission due upon a
Sale is claimed by more than one party, Lifestream shall have the
right, in its sole judgment, to determine which parties' efforts and
services caused the Sale to be made.
If, following a Sale, Products are rejected or returned by the Account
or Lifestream refunds all or a portion of the purchase price to the
Account or otherwise grants a credit or allowance to the Account, the
credit or allowance granted by Lifestream shall proportionately reduce
the commission payable to Representative. If the commission previously
paid to Representative with respect to such Sale exceeds the amount due
Representative, Representative shall promptly refund the excess
commission to Lifestream or Lifestream may, at its election, deduct
such amount from other commissions payable to Representative pursuant
to this Agreement.
7. Term and Termination. This Agreement shall be effective from September
1, 2003, through December 31, 2003. Lifestream may terminate this
Agreement at any time for cause upon written notice to Representative.
"Cause" shall include, but not be limited to, failure by Representative
to provide quality services or failure by Representative to devote a
satisfactory amount of time to perform its obligations under this
Agreement, or violation or breach by Representative of any provision of
this Agreement. Termination for cause in accordance with the foregoing
shall not constitute an election of remedies and shall not preclude
Lifestream from pursuing any and all other remedies available to it at
law or in equity. This Agreement may be terminated by either party
without cause upon giving thirty (30) days' written notice. Upon
termination, Lifestream shall promptly pay Representative all
commissions earned prior to termination. Following termination,
Lifestream shall have no obligation to pay commissions to
Representative for Product Sales to Accounts or any other form of
compensation.
8. No Competitive Activity. During the term of this Agreement,
Representative shall not solicit, sell or contract to sell, or act as a
distributor, sales agent, representative or consultant for, any
cholesterol diagnostic device other than the Products (as defined in
Section 1 hereof), including, without limitation, any cholesterol
diagnostic device manufactured, marketed, distributed or sold by Roche,
Accu-trend Instant Plus, Polymer Technologies, Bioscanner2000,
Tepi-Healthcheck & Trimeter, Chemtrack Accumeter, and Cholestech-LDX.
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Representative shall promptly notify Lifestream of any change in its
business relationships or activities that might be construed as
creating a conflict of interest. For purposes of this Section 8,
"cholesterol diagnostic device" shall include, without limitation, any
and all cholesterol diagnostic devices.
9. Use of Information and Nondisclosure. Representative has previously
entered into a Confidentiality Agreement with Lifestream and affirms
its willingness to uphold the terms of such Confidentiality Agreement.
10. New Developments. Representative agrees to promptly disclose to
Lifestream or its assignee any and all inventions, improvements,
methods and applications relating to the Products ("New Developments"),
including know-how related thereto, conceived, developed or made by
Representative (whether alone or with others) during the term of this
Agreement. Representative hereby assigns all of its rights to any such
New Developments and agrees to take all steps required to promptly
transfer and assign all of its rights in and to any New Developments to
Lifestream or its assignee.
11. Product Samples and Literature. Lifestream will provide Product samples
at no charge with prior approval. Additional samples ordered by
Representative will be charged at $65 per monitor, $10 per package of 6
test strips, $10 per each Smart Card, subject to change without notice.
All sample units, provided at no charge or purchased at the
professional demo price, are not commissionable. Brochures and other
sales materials requested by Representative and approved by Lifestream
will be provided at Lifestream's cost.
12. Assignment. Representative's rights hereunder shall not be assigned or
transferred, either voluntarily or involuntarily, without Lifestream's
prior written consent, nor shall Representative's duties hereunder be
delegated in whole or part. Any attempted assignment, transfer, or
delegation prohibited under this section shall be void and of no
effect.
13. Governing Law. This Agreement shall be governed by the laws of the
State of Idaho, without regard to its conflict of laws provisions.
14. Miscellaneous. Failure by Lifestream at any time to enforce any of the
terms, provisions or conditions of this Agreement shall not constitute
or be construed as a waiver of the same and any single or partial
exercise by Lifestream of any right under this Agreement shall not
preclude any further exercise of the same or the exercise of any other
right.
This Agreement and the previously signed Confidentiality Agreement
constitute the entire agreement of the parties with respect to the
subject matter hereof and supersedes and cancels all prior agreements,
representations and understandings of the parties.
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This Agreement shall not be modified or amended except by written
agreement signed by both parties, except that Additions to Exhibit A
will only require the signature of Lifestream. Any provision of this
Agreement held to be unenforceable or invalid by a court of competent
jurisdiction shall be ineffective to the extent that it is
unenforceable or invalid without effecting the remaining provisions
hereof, which shall continue in full force and effect. In the event any
of the covenants and restrictions of this Agreement are held invalid or
unenforceable because of the unreasonableness of the scope of the
subject matter, time or geographical restrictions, then such covenants
and restrictions shall be effective for such subject matter, such
period of time, and such area as may be determined by such court to be
reasonable under the laws of the State of Idaho.
Any controversy or dispute between the parties hereto arising out of or
relating to this Agreement or the breach thereof shall be finally
settled by arbitration in Kootenai County, Idaho. The prevailing party
in such arbitration shall be entitled to recover from the other its
reasonable attorneys' fees, costs of arbitration and other reasonable
related costs and expenses.
IN WITNESS WHEREOF, this Agreement is executed as of the date first written
above.
Lifestream Technologies, Inc. NCL & Associates, Inc.
By: /s/ Ed Siemens By: /s/ Neil C. Luckianow
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Edward R. Siemens Printed Name: Neil C. Luckanow
Chief Operating Officer Title: Principal
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