SALES REPRESENTATIVE AGREEMENT       This Agreement is made and entered into as of this ______ day of ________ 20 __ byand...
other costs or charges of any kind.“Customer”         shall mean any customer or potential customer of the Products within...
3
2.     APPOINTMENT.2.1     Appointment. Company hereby appoints Representative as a sales representative tosolicit Sales C...
3.     RELATIONSHIP BETWEEN PARTIES.3.1      Independent Contractor. Nothing in this Agreement shall be construed to const...
A.     Establish and maintain adequate facilities and personnel as may benecessary to meet the obligations assumed hereund...
(iii)   follow up on quotations made to prospective Customers and follow              up with the Customers to determine t...
Company and shall be further subject to Company’s specifications, delivery terms, paymentterms and other terms and conditi...
D.      No Commission shall be earned by, accrued or owed to, or paid to       Representative until Company receives payme...
B.    A representative into whose territory the Products are shipped shall not       receive any portion of the Commission...
not be carried on Representatives books as an asset of Representative, nor shall its cost becarried as a liability. The Co...
the Consigned Products; and, in furtherance thereof, maintain at its sole cost and expense, bodilyinjury and third party p...
9.5    Prior Relationships with Other Companies. Representative agrees that it will not at anytime use the confidential or...
C.      Alteration or modification of the Products, which may result in damage to        the Products, or failure to opera...
WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF PROFIT ORLOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS...
(vii) there is a sale, transfer or relinquishment of any substantial              interest in the ownership or active mana...
of Representative during the term of this Agreement or prior thereto, and Company shall       be free to appoint a success...
14.4 Severability. A judicial or administrative declaration in any jurisdiction of the invalidityof any one or more of the...
that Company’s obligations and Representative’s rights hereunder are contingent on compliancewith the applicable United St...
HWACHEON MACHINERY AMERICA, INCBY:TITLE:REPRESENTATIVE:BY:TITLE:DATE:                              20
SCHEDULES TO SALES REPRESENTATIVE AGREEMENT                                 BETWEEN                       HWACHEON MACHINE...
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Contract sales representative agreement

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Contract sales representative agreement

  1. 1. SALES REPRESENTATIVE AGREEMENT This Agreement is made and entered into as of this ______ day of ________ 20 __ byand between HWACHEON MACHINERY AMERICA, INC., an Illinois corporation with itsprincipal place of business at 50 Lakeview Parkway, Suite 119, Vernon Hills, Illinois 60061(hereinafter referred to as “Company”), and _________________________________, a________________________________________________, with its principal place of businessat _______________________________________ (hereinafter referred to as “Representative”). WITNESSETH: WHEREAS, Company is engaged in the sale and distribution in the United States of acomplete line of machine tools and related products (“Products”), as further defined in ScheduleA; WHEREAS, Representative desires to be appointed as a sales representative for theProducts in the Territory, as defined herein, upon the terms and conditions set forth herein; and WHEREAS, Company is willing to appoint Representative as its sales representative forthe Products in the Territory upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual promises and covenants of theparties as hereinafter more fully set forth, and other good and valuable consideration, the receiptand sufficiency of which are hereby acknowledged, the parties hereto, hereby agree as follows:1. DEFINITIONS.Definitions. For purposes of this Agreement, unless the context otherwise requires, thefollowing terms and variations thereof shall have the meanings specified or referred to in thisSection 1.“Contract Price” shall mean the selling price (less all discounts, allowances and returns, all of which may be negotiated by Company at its sole discretion) for the Products provided for in a Sales Contract, but excluding all other items such as, without limitation, nonrecurring engineering charges, service and maintenance fees, taxes, cost of transportation, insurance and all 1
  2. 2. other costs or charges of any kind.“Customer” shall mean any customer or potential customer of the Products within the Territory. “Customer” shall not include (i) any authorized distributors appointed by Company, (ii) any specific customers which are identified by Company in Schedule C attached hereto and made a part hereof (the “House Accounts”). Company reserves the right to amend Schedule C, upon notice to Representative, at any time, for any reason, and in any way, including, but not limited to, listing additional House Accounts.“Base Price” shall mean the price established by Company for the Products as between Company and Representative.“Products” shall mean the products of Company as more fully described in Schedule A, attached hereto. Additional Products may be added to such list of Products from time to time only by the mutual written agreement of the parties. Any of the Products, as listed in Schedule A, may be modified, replaced by a new or different product, or removed from Schedule A by Company without prior consent or notice to Representative if such modification, replacement or removal is the result of Company’s or manufacturer’s action in the nature of design changes, model changes, product discontinuance or product improvement with such changes, replacement or improved products to be included under this Agreement.“Sales Contract” shall mean a binding and effective written contract for the sale of the Products, entered into by Company and a Customer. “Sales Contract” shall not include: (i) a blanket purchase order, (ii) master purchasing agreement or (iii) other similar arrangement pursuant to which a Customer is not obligated to purchase any Products until the Customer issues a release or other purchase order. No “Sales Contract” shall exist until the Customer and Company have agreed upon the Products, quantities, prices and shipping dates for a particular order.“Territory” shall mean the specific geographic area, identified in Schedule B, in which Representative has its primary market and its primary sales responsibility. 2
  3. 3. 3
  4. 4. 2. APPOINTMENT.2.1 Appointment. Company hereby appoints Representative as a sales representative tosolicit Sales Contracts for Products from Customers located in the Territory, and Representativehereby accepts such appointment, all in accordance with the terms and conditions set forthherein. In consideration of the said appointment, Representative hereby agrees to exert its bestefforts during the term of this Agreement to vigorously promote the sale of the Products in theTerritory.2.2 No Other Representatives Located In Territory. Company shall not appoint any othersales representative for the Territory, except as provided in this Agreement. Notwithstanding theforegoing, (i) nothing contained in this Agreement shall limit Company’s right to sell productsother than the Products in the Territory, (ii) Company reserves the right to directly contact anyCustomer in the Territory at any time and (iii) Representative acknowledges that sales toCustomers in the Territory may result from the efforts of other representatives of Company andsuch sales shall not be deemed a breach of this Agreement nor entitle Representative tocommission, except as provided in this Agreement. This Agreement shall apply to and governonly the sale of the Products specified herein and no other different products, goods ormerchandise imported, sold or distributed by Company shall be encompassed within the termsand provisions of this Agreement.2.3 Certain Limitations. Notwithstanding anything to the contrary, if, in Company’s solejudgment made in good faith, Representative shall have materially defaulted under thisAgreement, then Company may: (i) assign to another sales representative or Company’s ownsales department any of the duties of Representative with regard to any or all of the affectedTerritory or Customers; (ii) unilaterally delete any or all Customers from this Agreement; or (iii)exercise its rights under (i) and (ii) above, in addition to any other rights provided by law or thisAgreement. Company shall give ten (10) days prior written notice of the Company’s action(s). 4
  5. 5. 3. RELATIONSHIP BETWEEN PARTIES.3.1 Independent Contractor. Nothing in this Agreement shall be construed to constituteRepresentative as an employee, co-contractor, agent, partner, or joint venture of Company or anyaffiliate or shareholder of Company. Representative is and shall remain an independentcontractor of Company solely responsible for Representative’s own actions. Without limitation,Representative shall have no authority to bind Company, to accept service of process, to receivenotice or to perform any act on Company’s behalf. Representative acknowledges thatRepresentative is not acting as a dealer or distributor of any goods but only as an independentsales representative.3.2 Representative’s Functions. Representative shall have only those authorities grantedunder this Agreement.4. COMPANY’S OBLIGATIONS.4.1 Company shall supply to Representative, from time to time without charge, reasonablequantities of catalogs, circulars and other printed materials that Company deems necessary oruseful for Representative to conduct sales and marketing of the Products.4.2 Company shall offer factory training, technical advice and assistance to Representative toassist Representative to render sales assistance and servicing to its customers.5. REPRESENTATIONS AND WARRANTIES; OBLIGATIONS ANDRESPONSIBILITIES OF REPRESENTATIVE.5.1 Warranties and Representations of Representative. Representative represents andwarrants to Company that if Representative is a corporation or other registered organization, it isduly organized, existing and in good standing under and by virtue of the laws of the state underwhich Representative has been organized. Representative shall not change its state ororganization, change its form of business or organization, or change its legal name, withoutproviding Company at least thirty (30) days prior written notice.5.2 Sales Responsibility. Representative shall sell the Products in the Territory by alllegitimate means, and in connection therewith, shall: 5
  6. 6. A. Establish and maintain adequate facilities and personnel as may benecessary to meet the obligations assumed hereunder; B. Furnish Company at its address indicated on the first page hereof withwritten monthly reports to be provided before the 5th of each month on forms provided byCompany regarding acceptability of the Products within the Territory, pricing dataregarding competitive products, state of the machine tool market within the Territory,state of the leads it is following, suggestions for additional features, or otherimprovements of the Products, and similar information or data; C. Plan and execute, at its own expense, an effective advertising, promotionaland marketing campaign for the Products in the Territory, and cooperate with Companyat all times in conducting promotional campaigns for the Products; D. Attend and represent the Company at the biennially held InternationalManufacturing Technology Show (IMTS) in Chicago, Illinois, and such other appropriateseminars and trade shows promoting the Products and cooperate with Companypersonnel in connection therewith to keep the Products in the forefront of the market forthe Products in the Territory; E. Supply to Company sales data as may be reasonably requested byCompany from time to time according to such system and on such forms as Companymay designate to assist Company in its production planning and to provide a basis forevaluating Representatives performance; F. Use its best efforts in promoting the sale of Products, striving at all timesfor maximum and full representation of the Products in the Territory, and specifically infurtherance thereof: (i) collect technical and engineering requirements from the Customers and assist in the adaptation of the Products to the Customer’s applications; (ii) act as a liaison and coordinator between the Customers and Company in meeting both the Customers and Company requirements for technical specifications, manufacturing schedules, delivery schedules, and other terms and conditions of sale; and 6
  7. 7. (iii) follow up on quotations made to prospective Customers and follow up with the Customers to determine that the Products have satisfactorily met such Customer’s requirements and cooperate with Company in effecting warranty and post-warranty servicing of the Products by Company; G. Promptly advise Company of any sales leads or potential Customers thatare located outside the Territory; H. Co-operate with Company in obtaining all necessary financial and securedfinancing documentation relating to sales to the Customers; and I. Upon Company’s request, use its best efforts to assist Company in thecollection of the Contract Price or any other fees from the Customers in the Territory, whichsuch Contract Price or fees shall be remitted directly to Company.5.3 Trademarks. Representative shall not use any trademark, trade name, service mark, logoor commercial symbol owned by Company (the “Trademarks”), either alone or with any otherword or words as part of Representative’s trade or corporate name, without the express writtenpermission of Company. Representative shall not remove any such Trademarks from theProducts. Upon request by Company, and in any event upon termination of this Agreement,Representative shall discontinue completely any use of any of the Trademarks for any purposewhatsoever, including use in Representative’s trade or corporate name.5.4 Non-competition. During the term of this Agreement, Representative shall not solicitorders or otherwise engage, directly or indirectly, in the sale or promotion of products theCompany reasonably deems to be in competition with the Products. Representative shall send toCompany on at least a quarterly basis a list of all entities for which Representative is arepresentative or distributor and the specific product lines sold and/or promoted byRepresentative.5.5 Compliance with Laws. Representative shall comply with all applicable laws andregulations relating to the sale and/or promotion of the Products in the Territory.6. SALES TERMS AND PROCEDURE.6.1 Orders. All orders for the Products from the Customers within the Territory,regardless of by whom such orders are procured, shall be subject to the final approval of 7
  8. 8. Company and shall be further subject to Company’s specifications, delivery terms, paymentterms and other terms and conditions of sale established by Company. All such orders shalldesignate Company as seller. Any and all terms and conditions of the orders from Customers aresubject to acceptance or rejection by Company. In the event that representative does buy andCompany agrees to sell to Representative, each sale shall be subject to each terms and conditionsas shall then be agreed upon including appropriate security.6.2 Reservation of Rights. Company reserves the right to reject or cancel, in whole orin part, any order procured by Representative, to accept any and all returns of Products fromCustomers or to grant any allowances to Customers as Company in its sole and absolutediscretion may deem proper. Company shall have the sole right to approve or disapprove thecredit rating of any Customer procured by Representative in the Territory. Company shall havethe right at any time to contact any Customer within the Territory directly for any purpose.6.3 Parts Orders. All of the parts for Products, sold to the Customers by Companyhereunder, shall be sold and delivered by or on behalf of Representative to such Customers, andRepresentative shall be solely responsible for accepting or rejecting any and all of the orders forthe parts to the Products and providing services relating thereto during the term of thisAgreement.7. COMMISSIONS.7.1 Commissions. On all sales of new Products under the Sales Contracts within the Territorywhich are procured by Representative and consummated by actual delivery of the Products to theCustomers and payment in full by the Customer to Company, Company shall pay toRepresentative, and Representative shall be entitled to, the Commission, as defined herein,subject to the following conditions: A. For each Sales Contract, the “Commission” shall mean the amount equal to the Contract Price less the Net Price. B. Costs or charges not included in the Contract Price shall not be commissionable. C. No Commission shall be paid on sales of the Products in which Company is not the direct seller such as, for example, but not by way of limitation, sales in which a parent, subsidiary, related or affiliated organization of Company is the seller. 8
  9. 9. D. No Commission shall be earned by, accrued or owed to, or paid to Representative until Company receives payment in full from the Customer. E. No Commission shall be payable on any sale of the Products with respect to which a reasonable claim is pending, until such time as the claim has been finally adjusted, and the Commission shall then be payable only upon the adjusted net invoice amount. F. No Commission shall be payable on any sale of used Products not sold by Hwacheon Machinery America. G. All Commissions earned by or credited to Representative but not paid by Company shall not be assigned by Representative during the term of this Agreement but all such Commissions, subject to the adjustment hereinabove provided, shall in any event inure to the benefit of the Representative or his heirs. H. Notwithstanding the foregoing, Company and Representative may agree, in writing, to Commission different from any amount set forth in this Agreement, prior to acceptance of an order by Company. I. .Representative will receive a reasonable commission should Company add a Formatted: Numbered + Level: 1 + Customer to the House Accounts Schedule at a time when Representative is Numbering Style: I, II, III, … + Start at: 1 + Alignment: Left + Aligned at: 1" + Indent at: currently and actively working on the sale of Product to said Customer 1.5" Formatted: Indent: Left: 0", First line: 0", Tab stops: 1.5", Left7.2 Multiple Territories/Interstate Transactions. Company shall have the right, at its solediscretion, to establish and, from time to time and effective at any time, to change its policy fordetermining what factors shall be considered in apportioning Commissions among Company’sterritories and its various representatives. Representative agrees to the following general termsinvolving multiple representatives and/or multiple territories/interstate transactions: A. Where an order is placed by a Customer’s office in one territory and the Products will be shipped to another territory, one-third (21/3) of the Commission shall be paid to the representative whose sales effort obtained such order, and two-third (21/3) of the Commission shall be paid to the representative which shall be responsible for follow- up and servicing of the Customer. 9
  10. 10. B. A representative into whose territory the Products are shipped shall not receive any portion of the Commission, except where such representative is actively involved in and necessary for the sales efforts or the servicing of the Customer, as stated herein. C. Notwithstanding anything to the contrary in this Agreement, if more than one representative or territory is involved with a particular order, Company shall have absolute discretion to determine the actual Commission due and payable to each representative, and such good faith determination shall be binding on all representatives.7.3 Payment of Commissions. Notwithstanding anything to the contrary contained in thisAgreement, no Commission shall be earned by or owed to Representative until Company hasreceived payment of the Contract Price in full from the Customer. The Commission shall bepaid to Representative within thirty (30) days after Company’s receipt of full payment of theContract Price from the Customer. No Commission shall be earned or owed on any orders whichare received before full execution of this Agreement or after its termination or expiration, orwhich were obtained due to the efforts of any prior or subsequent representative for the Territory.7.4 Reservations by Company. If the Sales Contract is terminated or cancelled for anyreason, or if any payment received by Company is deemed avoidable or refundable according tothe bankruptcy laws or any other law, Representative shall not be entitled to any Commission,unless the Sales Contract is reinstated; and if part or all of such Commission has been paid toRepresentative before such termination, cancellation or avoidance, Company may elect in its solediscretion either to debit such Commission from the Representative’s future Commissions or torequire Representative to refund the amount of Commission or part thereof received byRepresentative. Notwithstanding anything to the contrary in this Agreement, no Commissionshall be earned by or due to Representative for any Sales Contracts for which Company, in itssole judgment, has turned over the collection of the Customer’s debt under the Sales Contract toa collection agency or attorney or for which Company, in its sole judgment, has agreed to aninstallment payment plan due to the Customer’s financial difficulties.8. CONSIGNMENT.8.1 Consignment of Products. Company may consign Products (“Consigned Products”)at Representative’s location in the Territory. Representative hereby grants to Company, andCompany retains, a continuing purchase money security interest in the Consigned Productsheretofore or hereafter consigned to Representative by Company. Company is and shall remainat all times the owner and titleholder of the Consigned Products. The Consigned Products shall 10
  11. 11. not be carried on Representatives books as an asset of Representative, nor shall its cost becarried as a liability. The Consigned Products shall at all times be subject to the direction andcontrol of Company, and Company may request return of all or any part thereof at any time, orCompany may sell the same to others without prior approval of Representative.8.2 Representative’s Obligations With Respect To Consigned Products. Representativeagrees as follows: A. Representative hereby authorizes Company to, (i) authenticate on behalf ofRepresentative such additional records as may be required from time to time to create, extend,continue, maintain or perfect the security interest described herein or otherwise granted to orretained by Company and (ii) to make/undertake such filings or registrations with governmentalofficials or offices and take such other actions as Company deems appropriate to perfect,continue and/or maintain the perfection of the security interests created hereby or otherwisegranted to or retained by Company. B. Representative shall safeguard the Consigned Products at all times and keep saidConsigned Products insured at all times at Representatives own expenses against all risk of fireand other damage (including so-called extended coverage), theft and such other risks asCompany may reasonably require. All proceeds of such insurance shall be payable to Company.Upon Companys request, Representative shall furnish certificates of insurance or other evidenceof coverage. C. Representative shall keep the Consigned Products free from any adverse lien,security interest or encumbrance and pay all taxes which may be levied thereon and pay all rentfor the premises at which the Consigned Products are located and not waste or destroy theConsigned Products or any part thereof or use the Consigned Products in violation of any statuteor ordinance. D. Representative shall keep the Consigned Products and its proceeds separate anddistinct from any other inventory and assets of Representative, and keep the Consigned Productsclearly labeled and identified as Companys property. E. Representative shall indemnify and hold harmless Company from and against any andall claims, actions and suits, proceedings, damages and liability, (including, but not limited to,those relating to personal injury and/or death) and all costs and expenses relating thereto,including reasonable attorneys fees, arising out of, in connection with or resulting from,Representatives possession, use, operation, demonstration, exhibition, repair or maintenance of 11
  12. 12. the Consigned Products; and, in furtherance thereof, maintain at its sole cost and expense, bodilyinjury and third party property damage insurance with limits of not less than $2,000,000 perperson and $2,000,000 per accident, and property damage of not less than the full unit price ofthe Consigned Products. Company shall be named as an additional party insured upon and withrespect to all such insurance and upon Companys request, Representative shall furnishcertificates of insurance or other evidence of coverage.9. CONFIDENTIALITY.9.1 Confidential Information. Representative covenants and agrees to maintain asconfidential all proprietary and/or confidential technical, commercial or financial information orknow-how of Company or third parties from whom Company has received such information, andany and all information and data whenever and however furnished to Representative byCompany hereunder (collectively, the “Confidential Information”). Confidential Informationshall not include information which Representative can establish (i) is generally known byCompany’s competitors, (ii) has been independently developed by Representative withoutreference to Company’s Confidential Information; (iii) is already known to Representativebefore receiving the Confidential Information; or (iv) was rightfully received by Representativefrom a third party without a duty of nondisclosure and without breach of similar obligations ofsuch party to Company. Representative shall take all reasonable measures necessary to protectthe Confidential Information. The Confidential Information shall be property of Company andshall be entrusted only to Representative’s officers or employees approved in writing by theCompany. Representative agrees to notify said officers and employees of their duty to complywith this Section 9 and shall promptly notify Company if Representative becomes aware of anybreach of such duty.9.2 Termination. Upon termination of this Agreement, or at such earlier time as Companyshall request, Representative shall promptly return to Company all Confidential Information, aswell as any other data, correspondence with Customers, documents, notes, memoranda,advertising and sales materials or equipment relating to this Agreement.9.3 Injunction. Representative acknowledges that the unauthorized disclosure or use of anyConfidential Information will may cause irreparable injury to Company. Representative agreesthat Company shall have the right to an injunction to prevent any wrongful disclosure or use byRepresentative of any Confidential Information.9.4 Survival. Representative’s duties set forth in this Section 9 shall survive the terminationof this Agreement. 12
  13. 13. 9.5 Prior Relationships with Other Companies. Representative agrees that it will not at anytime use the confidential or proprietary information or intellectual property of any othercompany or person in performing its duties under this Agreement. Representative furtherrepresents and warrants that it is not subject to any restrictive covenants or other restrictions ofany sort, including but not limited to confidentiality obligations, which would prevent or affectRepresentative’s performance of its duties under this Agreement.10. WARRANTY AND SERVICING.10.1 Warranty. All Products sold by Company pursuant to this Agreement are sold subjectto a standard one (1) year warranty of Company as may be in effect from time to time, andRepresentative is not authorized to assume on behalf of Company any other obligation orliability in connection with the sale of the Products except as specifically approved by Companyin writing. THE WRITTEN WARRANTY OF COMPANY SHALL BE THE SOLE ANDEXCLUSIVE WARRANTY OF COMPANY AND IS IN LIEU OF ALL OTHERWARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITEDTO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, ANDCOMPANY NEITHER ASSUMES NOR AUTHORIZES REPRESENTATIVE TO ASSUMEFOR IT ANY OTHER OBLIGATIONS OR LIABILITIES IN CONNECTION WITH THEPRODUCTS WITHOUT COMPANY’S PRIOR WRITTEN CONSENT. To the extentRepresentative attempts to modify the terms of Company’s standard warranty without the priorwritten consent of Company, Representative shall indemnify and hold Company harmless fromand against any and all claims and damages related thereto or asserted in connection therewith.10.2 Notice of Warranty and Policies. Representative shall provide each Customer with anotice of the Company’s warranty and policies as set forth in Section 10 prior to the procurementof an order from such Customer. Neither the standard warranty and related policies of Companyas set forth herein nor the Product descriptions and specifications referred to may be altered byRepresentative without the prior express written consent of Company.10.3 Limitation. Notwithstanding the provisions of Section 10.1 above, Company assumesno responsibility if any Products shall fail to function during any warranty period by reason ofany one or more of the following causes: A. Abuse or misuse of the Products; B. Improper preventive maintenance of the Products by the user; 13
  14. 14. C. Alteration or modification of the Products, which may result in damage to the Products, or failure to operate in accordance with specifications; D. Improper repair, modification or servicing of the Products performed by any unauthorized service personnel; E. Use or operation of the Products in conjunction with any accessories or auxiliary equipment not specifically approved by Company in writing; or F. Force majeure, including natural disaster, fire, flood, accidents and thelike.10.4 After-Sales Service of Customers. Representative understands that effective use of theProducts by the Customers depends upon proper training and customer assistance after the sale.Accordingly, Representative agrees that a material consideration of Representative’sappointment hereunder is Representative’s agreement to assist in performing reasonable andnecessary after-sales servicing and support of the Customer. Representative acknowledges andagrees that Representative shall be responsible, at Representative’s expense, for serviceobligations during the warranty period and that the commission paid to Representative under thisAgreement shall serve to compensate Representative for such warranty service. This provisionshall not be construed as limiting Company’s obligation to a Customer under a Sales Contract.11. LIMITATION OF LIABLITY; DISCLAIMER OF CERTAIN DAMAGES.Limitation of Liability. EXCEPT AS SPECIFICALLY AND EXPLICITLY PROVIDEDIN THIS AGREEMENT, IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY,WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR INCONNECTION WITH THIS AGREEMENT, ANY TERMINATION OR EXPIRATION OFTHIS AGREEMENT, FOR PUNITIVE DAMAGES OR FOR ANY COMPENSATION,REIMBURSEMENT OR DAMAGES ON ACCOUNT OF ANY LOSS OF PROSPECTIVEPROFITS ON ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES,INVESTMENTS, LEASES OR OTHER COMMITMENTS RELATING TO THE BUSINESSOR GOOD WILL OF REPRESENTATIVE. COMPANY SHALL HAVE NO LIABILITY TOREPRESENTATIVE ARISING OUT OF OR IN CONNECTION WITH ANY FAILURE OFTHE PRODUCTS TO PERFORM OR ANY LOSS OF THE CUSTOMERS OR END-USERSFOR ANY REASON. IN NO EVENT SHALL COMPANY OR ANY MANUFACTURER OFTHE PRODUCTS OR ANY PART OR COMPONENT THEREOF BE LIABLE FORSPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING 14
  15. 15. WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF PROFIT ORLOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENTOR THE PERFORMANCE OF THE PRODUCTS, WHETHER OR NOT COMPANY HASBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.12. TERM, RENEWAL AND TERMINATION.12.1 Term and Renewal. Subject to the provisions of Section 12.2 hereof, this Agreementshall take effect on the commencement date as set forth on the first page hereof and shallcontinue in full force and effect for a period of one (1) year. Thereafter, this agreement shallcontinue until terminated by either party at any time, with or without cause, upon thirty (30) daysprior written notice delivered to the other party.12.2 Termination. The provision of Section 12.1 to the contrary notwithstanding, thisAgreement may be terminated prior to the expiration hereof as follows: A. By Company, immediately, if any one or more of the following eventsoccurs: (i) legal proceedings have been instituted against Representative in bankruptcy or under insolvency laws which proceedings are not vacated within ten (10) days from the date of filing; (ii) Representative makes an assignment of all or part of its assets for the benefit of creditors; (iii) Representative, or if a partnership, any partner of Representative, shall be or admit that it is insolvent; (iv) Representative, if a corporation or other registered organization, ceases to exist; (v) there occurs a death, removal, resignation, withdrawal, or elimination of the current principal managers of Representative; (vi) a misrepresentation is made to Company as to the ownership or financial condition of Representative; 15
  16. 16. (vii) there is a sale, transfer or relinquishment of any substantial interest in the ownership or active management of Representative, or an attempted assignment of this Agreement shall occur without prior written approval of Company; or (viii) Representative shall fail to cause Company to be informed in writing immediately on the happening of any event specified in this section. B. By Company, if Representative shall (i) fail to pay any sums due to Company under this Agreement or (ii) otherwise breach this Agreement, and Company shall have given written notice of such default, and Representative shall fail to remedy such breach or default within ten (10) days of receipt of such notice.12.3 Rights and Obligations upon Termination or Expiration. A. Upon termination or expiration of this Agreement, Representative shall immediately wind up its duties on behalf of Company and shall within ten (10) days of termination or expiration, among other winding up duties, submit to Company a written list of all written orders and contracts actually procured and physically received by Representative as of the date of termination or expiration which have not been delivered or sent to Company as of the date of termination or expiration. Representative shall be entitled to Commissions only as to those orders for the Products submitted to Company or Representative prior to termination or expiration and which are consummated by actual shipment of the Products and payment in full by the Customer within one hundred eighty (180) days of the date of termination or expiration, subject to the provisions of Section 7, Commissions, hereof. Company may, if it shall elect, retain from the amounts due to Representative a reasonable sum for a period not to exceed six (6) months from the date of termination or expiration as a reserve for any adjustment in the sales that may be required to be made after termination or expiration of this Agreement. Representative shall not be entitled to any Commission for orders relayed to Representative or Company by Customers after the termination date or expiration date. No Commission shall be paid on sales for which Company received payment from the Customer more than one hundred eighty (180) days from the date of termination or expiration. B. Upon termination or expiration of this Agreement and upon payment of all Commissions due Representative, Company shall thereafter have no further obligation to Representative with respect to any future sales of the Products made to any Customers in the Territory, including specifically any Customer originally procured through the efforts 16
  17. 17. of Representative during the term of this Agreement or prior thereto, and Company shall be free to appoint a successor representative in the Territory or to make any and all sales directly to such Customer or Customers.13. INDEMNIFICATION.Representative shall defend, indemnify and hold harmless Company, its directors, officers,representatives and employees from all liability, damage, cost and expense (including reasonableattorneys’ fees) imposed as a result of any claim by a Customer or other third party arising out ofacts or omission of Representative or breach of any representation, warranty, covenant oragreement under this Agreement by Representative, including but not limited to any failure ofRepresentative to notify Customers of the terms of the product warranty or Company’s policiesthereunder, or any representation or commitment by Representative which creates liabilities orobligations beyond such warranty or policy.14. GENERAL PROVISIONS.14.1 Assignment. This Agreement has been entered into in reliance upon the personalqualifications of the principals, who actively and substantially participate in the ownership oroperations, or both, of Representative. As such, Representative understands and agrees that itsrights and obligations under this Agreement are not transferable or delegable, and may not beassigned or delegated by Representative to any other individual or business entity without theprior written approval of Company, such approval to be at the discretion of Company.14.2 Notice. All notices permitted or required shall be in writing, executed by an officer ofCompany or by any principal of Representative, and shall be sent by means not slower thanregistered or certified mail and such notice shall be effective as of the date of delivery asevidenced by return receipt signature. Any such notice actually or personally delivered to anofficer of Company, or to any principal of Representative, shall be effective as of the date ofsuch delivery. All notices shall be sent to the addresses on the first page hereof or such addressas may be designated by either party from time to time.14.3 Entire Agreement. This Agreement, together with all attachments hereto, constitutes theentire agreement between the parties and supersedes any and all previous agreements,memoranda or other understandings of the parties. The parties agree that all terms andconditions of this Agreement are necessary and essential for the proper representation and sale ofthe Products in the Territory. This Agreement may be amended only in writing. 17
  18. 18. 14.4 Severability. A judicial or administrative declaration in any jurisdiction of the invalidityof any one or more of the provisions hereof shall not invalidate the remaining provisions of thisAgreement in any jurisdiction, nor shall such declaration have any effect on the validity orinterpretation of this Agreement outside of that jurisdiction, unless such declaration relates to anessential part of the agreed exchange.14.5 Waiver of Compliance. Any failure by any party hereto to enforce at any time any termor condition under this Agreement shall not be construed as a waiver of that party’s rightthereafter to enforce each and every term and condition of this Agreement.14.6 Force Majeure. Any party hereto shall be excused from non-performance or delay incase of force majeure, labor disputes, wars, revolutions, civil strikes, riots, disturbances, strikes,and acts of enemies, accidents, unavailability of raw materials, typhoons, hurricanes, floods,fires, earthquakes, diseases and other like causes beyond the control of either party hereto.14.7 Binding Upon Successors. This Agreement shall be binding upon the successors andlegal representatives of the parties hereto.14.8 Arbitration. The parties agree that all disputes arising out of this Agreement (or thebreach thereof) and/or the relationship of the parties shall be settled by submission to arbitrationin accordance with the Commercial Arbitration Rules of the American Arbitration Association.Such proceedings shall be held before the American Arbitration Association in Chicago, Illinoisbefore three (3) arbitrators. Any judgment upon any award rendered by the arbitrators may beentered in any court having jurisdiction thereof. If any suit or proceeding be brought in anycourt, the court shall, on application of one of the parties, stay the trial of the action until sucharbitration has been had in accordance with the terms of this Representation Agreement.14.9 Governing Law. THE AGREEMENT SHALL BE GOVERNED AND CONSTRUEDUNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS(WITHOUT REFERENCE TO ITS CONFLICTS OF LAW RULES) which shall bind theparties in all questions arising hereunder, regardless of the jurisdiction in which any action orproceeding may be initiated or maintained. The United Nations Convention on the InternationalSale of Goods shall not apply to this Agreement.14.10 Export Control Laws. Representative acknowledges and agrees that Company is subjectto the United States laws and regulations controlling the export of technical data, computersoftware, laboratory prototypes and other commodities (including the Arms Export Control Act,as amended and the Export Administration Act of 1979) (hereinafter the “Export Laws”), and 18
  19. 19. that Company’s obligations and Representative’s rights hereunder are contingent on compliancewith the applicable United States Export Laws. The transfer of certain technical data andcommodities may require a license from the appropriate agency of the United States governmentand/or written assurances by Representative that Representative will not export data orcommodities to certain foreign countries without prior approval of such agency. Representativeshall comply with the Export Laws to the extent that its activities are governed by such laws, andshall cooperate with Company regarding Company’s compliance with any such laws.14.11 Counterparts. This Agreement may be executed in one or more counterparts, each ofwhich shall be deemed an original, but all of which together shall constitute one and the sameinstrument.IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed induplicate originals by their duly authorized representatives the date and year set forth below. [Signature Page Follows] 19
  20. 20. HWACHEON MACHINERY AMERICA, INCBY:TITLE:REPRESENTATIVE:BY:TITLE:DATE: 20
  21. 21. SCHEDULES TO SALES REPRESENTATIVE AGREEMENT BETWEEN HWACHEON MACHINERY AMERICA, INC AND _____________________ DATED: , 20__ SCHEDULE A (Products)The Products covered by this Agreement are: SCHEDULE B (Territory)The Territory covered by this Agreement is:___________________________________________ SCHEDULE C (House Accounts) 21
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