Fill and Sign the Sample Independent Sales Representative Agreement Form

Independent Sale Representative Agreement, Page 1 INDEPENDENT SALES REPRESENTATIVE AGREEMENT THIS AGREEMENT made this ___ day of _______________, 20___, by ______________________ , a [state] _______________ corporation with a place of business at ___________________________________________ (hereinafter "_________________"), And _______________________________, with a place of business at ___________________________________________________ (hereinafter "Representative"). WHEREAS , _________________ is the manufacturer and developer of certain computer software products and computer systems; and WHEREAS , Representative desires to act as _________________'s non-exclusive sales representative to sell _________________'s products, and _________________ desires to appoint Representative as its sales representative pursuant to the terms and condit ions contained herein; NOW THEREFORE , in consideration of the mutual promises contained herein, it is agreed as follows: 1. Definitions As used in this Agreement: a) "Agreement" means this Agreement including all the Schedules attached hereto; b) "_________________ Products" means the software and products described in “Schedule A” annexed hereto, and shall include any Enhancements which _________________ has announced or may announce during the term of this Agreement; c) "Territory" means the geographical areas described in “Schedule B” annexed hereto; d) "Customer" means any end-user of _________________ Products; e) "Documentation" means the standard materials which _________________ has published or may publish, during the term of this Agreement, for Customer's use with the _________________ Products, including any user manuals or technical manuals for the _________________ Product; f) "Effective Data" means the date upon which this Agreement is executed by the last party to sign; g) "Enhancements" means all improvements, changes, revisions, modifications, replacements and updates relating to __________ Products and Documentation. 2. Appointment as Independent Sales Representative _________________ hereby designates and appoints Representative as its non-exclusive selling representative in the Territory to actively promote and solicit orders for Independent Sale Representative Agreement, Page 2 _________________ Products or any components thereof for the term of this Agreement. _________________ shall have the right to limit the Territory and the _________________ Products covered by this Agreement, and the right to limit the type of the customers to be solicited by the Representative within the Territory, as _________________ deems advisable in its sole discretion upon written notice to Representative pursuant to the terms of Section 15.2. _________________ may designate and appoint other selling representatives in the Territory, as it deems advisable in its sole discretion. The Territory may be extended to include specific satel lite offices of Customers located in the Territory, upon request to _________________ and written approval by _________________ prior to any such extension. 3. Term of Agreement This Agreement shall commence on the Effective Date and it shall terminate one (1) year from the Effective Date, unless terminated earlier by the parties pursuant to the terms and conditions contained herein. This Agreement may be renewed for additional one (1) year terms by _________________ upon the request of Representative. 4. Obligations of Representative and _________________ 4.1 Obligations of Representative a) Representative shall use its best efforts to market and promote the sale of _________________ Products throughout the Territory; b) Representative shall perform the services hereunder in a professional manner and by qualified personnel. Representative's employees assigned to perform any services hereunder shall have the proper skill, training and background so as to enable them to perform in a competent and professional manner; c) Representative and its employees shall not have any authority to and shall not make any representation or warranty on behalf of _________________ other than the warranties contained in _________________'s standard license agreement for the _______________ Products. Representative and its employees shall not in any manner assume or create any obligation or responsibility, express or implied, on behalf of or in the name of _________________, or act for or bind _________________ in any respect except as expressly permitted pursuant to this Agreement. Representative shall indemnify _______________ from and against any liability, loss, damage or expense, including attorneys' fees, arising out of any breach of this paragraph by Representative. No advertising, publicity or promotional material shall be undertaken or distributed by Representative without the prior written approval of _________________; d) Representative shall be responsible for prompt return to _________________, upon _________________'s request or termination of this Agreement, of any and all ____________________ Products, Documentation or related materials delivered by _________________ to Representative pursuant to this Agreement; e) Representative shall complete activity and forecast reports in the form a nd Independent Sale Representative Agreement, Page 3 manner required by _________________ and shall attend periodic sales meetings at locations and times designated by _________________. 4.2 Obligations of _________________ a) _________________ shall inform and instruct Representative as to _________________ Products, and provide guidance, as _________________ deems necessary in its sole judgment, in carrying out Representative's responsibilities under this Agreement; b) _________________ shall supply the necessary _________________ Products, Documentation, price lists, brochures and other publications required, in the sole judgment of _________________, for the proper promotion and handling of sales in the Territory. All such products, documentation and materials remain the property of _________________ and shall be subject to the confidentiality provisions in Sections 5 and 9 of this Agreement. c) _________________ shall provide Representative with the necessary pre-sale technical support in the same manner and method provided by _________________ to its internal sales staff. 5. License 5.1 Display License _________________ hereby grants and Representative hereby accepts a nonexclusive right and license within the Territory to display the _________________ Products and Documentation to potential Customers in connection with the efforts of Representative to promote the sale of _________________ Products under the terms of this Agreement. 5.2 Promotional Materials License _________________ hereby grants and Representative hereby accepts a nonexclusive, royalty-free right and license within the Territory during the term of this Agreement to reproduce or copy sales promotional literature, including but not limited to brochures, pamphlets, product outlines and product summaries for the _________________ Products which Representative deems reasonably necessary to fulfill its promotional obligations under this Agreement. 5.3 General License Provisions All licenses granted in this Section 5 shall be further subject to the following restrictions: a) _________________ Products, Documentation, promotional and related materials, and any copies thereof, shall in all cases remain the property of _________________. b) Prior to any disclosure of substantial functional documentation relating to Independent Sale Representative Agreement, Page 4 _________________ Products, identified as such in Schedule A, or other _________________ proprietary confidential material to any potential Customer, Representative shall obtain from _________________ the consent to do so and shall receive from such Customer a written Confidentiality Agreement in a form drafted and negotiated by _________________. c) Except as otherwise provided or permitted herein, Representative shall not make or permit its agents or employees to make any copies of the _________________ Products, Documentation or other _________________ confidential proprietary material, nor shall it disclose or make available any such products, documentation and materials in any form to any person other than Representative, _________________ employees, and potential Customers of _________________ pursuant to paragraph 5.3(b) herein, without the prior express written consent of _________________. Representative agrees to secure and protect the _________________ Products and Documentation so as to maintain the proprietary rights of _________________ therein. d) Representative understands and acknowledges that _________________ Products consists of object code only and that Representative shall not use, supply or disclose source code versions of the _________________ Products. Representative shall not create or attempt to create by decompilation or otherwise, the source code for the _________________ Products, or any part thereof. 5.4 Confidentiality Representative hereby acknowledges that the _________________ Products and Documentation are the property of _________________; that the _________________ Products identified herein are proprietary to _________________; and that the _________________ Products and the related Documentation, including the algorithms contained therein, constitute trade secrets of _________________. Representative shall not sell, transfer, disclose, display or otherwise make available any _________________ Products or related Documentation or copies or portions thereof to any other entity or third party except as permitted under this Agreement and in accordance with the requirement to obtai n a signed Confidentiality Agreement. Representative agrees to secure and protect the _________________ Products and related Documentation so as to maintain the proprietary rights of _________________ therein, including appropriate instructions to and agreement with its employees. 6. Orders and Pricing 6.1 Customer Orders Representative shall promptly transmit all customer orders for _________________ Products and Documentation in its Territory to _________________. All orders must refer to the terms and conditions of this Agreement, and are subject to acceptance or rejection by an authorized officer of _________________. _________________ Independent Sale Representative Agreement, Page 5 reserves the right to reject any order, or to cancel any order or any part thereof after acceptance, for credit or for any other reason whatsoever deemed by _________________ in its sole discretion to be sufficient. All orders must be accompanied by a License Agreement for the _________________ Product, signed by customer and an authorized representative of _________________. _________________ shall transmit to Representative written notification of acceptance or rejection of an order submitted by Representative. 6.2 Pricing and Terms _________________ shall establish the prices and terms for the _________________ Products and Documentation sold by Representative at _________________' sole discretion. Representative shall not have the right to set customers’ prices for the _________________ Products. During the initial term of this Agreement, the prices, terms and discretionary discounts are set forth in “Schedule A.” _________________ shall have the unfettered right to amend and/or alter the prices, terms and discretionary discounts set forth in “Schedule A” upon twenty (20) days written notice to Representative. 7. Expenses Unless otherwise agreed to by _________________ in writing, Representative shall be responsible for all costs and expenses incurred in the performance of its services pursuant to this agreement. 8. Payments Representatives remuneration for performance hereunder is set forth in “Schedule C.” 9. Trademarks, Trade Names and Proprietary Rights 9.1 Rights of _________________ Representative recognizes the exclusive right of _________________ in and to all of the trademarks applied to the _________________ Products and to any and all of _________________'s copyrights of material and or Documentation used in connection therewith. 9.2 Use by Representative Representative agrees that it shall not use, make reference to or otherwise designat e _________________'s trademarks or trade names except as they may be used for the benefit of _________________ in the promotion of the _________________ Products and Documentation and then only when the appropriate trademark notice is utilized. Independent Sale Representative Agreement, Page 6 9.3 Notice Whenever Representative employs any trademark of _________________ to be mentioned in any form or printed material, Representative shall place an asterisk immediately after and slightly above the first use of the trademark referring to a footnote reading "Trademark of _________________". 9.4 Non-Infringement _________________ at its own expense will defend any action brought against Representative to the extent that it is based on a claim that any _________________ Product and related Documentation within the scope of this Agreement infringes any patents, copyrights, licenses or other property rights, provided that _________________ is immediately notified in writing of such claim. _________________ shall have the right to control the defense of all such claims, lawsuits and other proceedings. In no event shall Representative settle any such claim, lawsuit or proceeding without _________________'s prior written approval. In no event shall _________________ settle any such claim, lawsuit or proceeding without Representative’s prior written approval. Should _________________ be individually named in any such action, or be pleaded into any such action, then Representative shall have the right to enter his own defense. The foregoing states the entire liability of _________________ with respect to infringement of any copyrights or patents by the _________________ Products or any parts thereof. 10. Warranties . Representative will not make any warranties with respect to the _________________ Products, which varies the warranties provided by _________________ in its license Agreements. _________________ makes no warranties, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose. _________________ does not warrant that the _________________ products will meet customer requirements or that the operation of the _________________ Products will be uninterrupted or error-free. 11. Non-Competition Representative agrees and covenants that because of the confidential and sensiti ve nature of the _________________ products and because the use of, or even the appearance of the use of, _________________ proprietary information in certain circumstances may cause irreparable damage to _________________ and its reputation, or to clients of _________________ , Representative shall not during the term of this Agreement or until the expiration of two (2) years after the termination of this Agreement engage, directly or indirectly, or through any corporations or associates in any business, enterprise or employment with the following businesses:1) _________________ ; 2) _________________ ; 3) _________________ ; 4) _________________ ; 5) _________________ . Independent Sale Representative Agreement, Page 7 12. Saving Provision _________________ and Representative agree and stipulate that the agreements and covenants not to compete contained in the preceding paragraph 11 are fair and reasonable in light of all of the facts and circumstances of the relationship between _________________ and Representative; however, _________________ and Representative are aware that in certain circumstances courts have refused to enforce certain agreements not to compete. Therefore, in furtherance of and not in derogation of the provisions of the preceding paragraph _________________ and Representative agree that in the event a court should decline to enforce the provisions of the preceding paragraph, that paragraph shall be deemed to be modified to restrict Representative’s competition with _________________ to the maximum extent, in both time and geography, which the court shall find enforceable; however, in no event shall the provisions of the preceding paragraph be deemed to be more restrictive to Representative than those contained therein. 13. Injunctive Relief Representative acknowledges that disclosure of any Confidential Information or breach of any of the non-competitive covenants or agreements contained herein will give rise t o irreparable injury to _________________ or clients of _________________ , inadequately compensable in damages. Accordingly, _________________ may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Representative further acknowledges and agrees that in the event of the terminati on of this Agreement, Representative’s experience and capabilities are such that the Representative can obtain employment in business activities which are of a differe nt or non-competing nature with his activities with _________________; and that the enforcement of a remedy hereunder by way of injunction shall not prevent the Representative from earning a reasonable livelihood. Representative further acknowledges and agrees that the covenants contained herein are necessary for the protection of _________________ ’s legitimate business interests and are reasonable in scope and content. 14. _________________ ’s Clients During the term of this Agreement and for a period of two (2) years following termination, Representative shall not have any business dealings whatsoever, either directly or indirectly or through corporate entities or associates, with any customer or client of _________________ or its subsidiaries or any person or firm which has contacted or been contacted by _________________ as a potential customer or client of _________________, except for contact necessary to perform herein, and Representative shall keep in strictest confidence, both during the term of this Agreement and subsequent to termination hereof, and shall not during the period of this Agreement or thereafter disclose or divulge to any person, firm or corporation, or use directly or indirectly, for Representative’s own benefit or the benefit of others, any information which in good faith and good conscience ought to be treated as confidential information including without Independent Sale Representative Agreement, Page 8 limitation customer or contact lists of _________________. 15. Termination 15.1 Termination This Agreement may be terminated by either party by giving the other party writte n notice of termination at least sixty (60) days prior to the end of the first year te rm of this Agreement. Should neither party give sixty (60) days notice of termination, then this Agreement shall automatically renew for an additional one (1) year term(s). In addition, _________________ shall have the right to terminate this Agreement, by giving written notice of termination to Representative, for (a) any material breac h or failure of performance by Representative, if within thirty (30) days after the giving of written notice to Representative of such failure of performance, Representative, has not cured such failure, and (b) breach by Representative of any of its confidentiality obligations with respect to _________________’s proprietary information. 15.2 Representative Territory Protection During the term, Representative’s Territory, as set forth in “Schedule B”, shall belong to Representative to exploit hereunder so long as Representative performs to the minimum stated sales quotas set forth in “Schedule D.” Should Representative fail to perform to minimum stated levels set forth in “Schedule D” then _________________ shall have the right to limit or alter the Territory and the _________________ Products covered by this Agreement, and shall have the right to limit the type of the customers to be solicited by the Representative within t he Territory, as _________________ deems advisable in its sole discretion upon twenty (20) days written notice to Representative. Nothing herein shall alter the terminati on provisions set froth in 15.1, supra. 15.3 Other Rights Except as otherwise provided herein, termination of this Agreement shall terminate all further rights and obligations of _________________ and Representative hereunder provided that: a) If such termination is based on a breach by a party hereto, the other party shall be entitled to pursue any and all rights it has to redress such breach in law or equity; and b) The confidentiality provisions with respect to the _________________ Products, Documentation and related materials and the indemnities set forth in this Agreement shall survive the termination of this Agreement. 16. Miscellaneous 16.1 Independent Contractor The relationship between _________________ and Representative established by this Independent Sale Representative Agreement, Page 9 Agreement is that of independent contractors and _________________ and Representative shall each conduct its respective business at its own initiative, responsibility and expense, and shall have no authority to incur any obligations on behalf of the other, except as otherwise provided herein 16.2 Notices All notices required or permitted under this Agreement shall be made in writing and shall be deemed to have been duly given if delivered personally or sent by registered or certified mail (return receipt requested). All notices shall be addressed to the parties at the respective addresses indicated above. 16.3 Governing Law This Agreement and any transaction between _________________ and Representative hereunder shall be governed by, construed and interpreted in accordance with the laws of the State of _________________. Representative hereby consents to the jurisdiction of the courts of the State of _________________ or the Federal courts sitting in _________________ and waives any objection to such venue. 16.4 Assignment Neither party hereto may assign or otherwise transfer its rights and obligations under this Agreement, except that _________________ may assign or otherwise transfer its rights and obligations hereunder to any parent or subsidiary corporation of _________________ or to any purchaser of the business of _________________ which agrees to assume the obligations of _________________ hereunder. 16.5 Entire Agreement This Agreement contains the entire agreement between the parties and it supe rsedes all previous agreements and proposals, oral or written, and all negotiations, conversations or discussions between the parties related to this Agreement. IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the day and year first written above. By: By: Title: Title: Date: Date: