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SALES REPRESENTATIVE AGREEMENT
This Sales Representative Agreement (the "Agreement"
is effective as of the ___ day of _________________, 200_, by and between ___________________________, a _____________________________(“Company”), and _____________________________ (“Representative”). Company and Representative are sometimes referred to in this Agreement individually as the “Party” and collectively as the “Parties.”
RECITALS
A. COMPANY is primarily engaged in the business of____________________________________________________________________.
B. COMPANY desires to appoint Representative and Representative desires to accept such appointment as a sales representative of certain Products, in accordance with and subject to the terms and conditions of this Agreement.
Now, therefore, in consideration of the foregoing recitals and the mutual covenants and agreements set forth in this Agreement, the adequacy and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:
1. Definitions
1.1 Exclusive Territory. Exclusive Territory shall mean the States of ____________, _______________, and _______________.
1.2 Nonexclusive Territory. Nonexclusive Territory shall mean all states of the United States, other than the Exclusive Territory and any other area not otherwise governed by a Sales Representative Agreement between COMPANY and a person or entity other than Representative, and all geographic areas outside the United States.
1.3 Products. The Products shall collectively mean the products(s) and/or services identified on Schedule 1, attached to this Agreement.
1.4 Term. Term shall have the meaning set forth in Section 3 of this Agreement.
1.5 Territory. Territory shall mean, collectively, the Exclusive Territory and the Nonexclusive Territory.
2. Appointment; Representations and Warranties
2.1 Scope. COMPANY hereby appoints Representative, and Representative hereby accepts such appointment, during the Term, as COMPANY' (i) exclusive Representative to sell the Products in the Exclusive Territory; and (ii) nonexclusive Representative to sell or otherwise distribute the Products in the Nonexclusive Territory.
2.2 Exclusive Territory. During the Term, COMPANY shall not in, or with respect to, the Exclusive Territory appoint other distributors, agents, or representatives for the sale, service or promotion of the Products, without the prior written consent of Representative.
2.3 Representations and Warranties of COMPANY. Each Party hereby represents and warrants to the other Party that:
(a) it has the requisite power to enter into this Agreement and will have, during the Term, all of the requisite power to perform all obligations under the terms of this Agreement;
(b) it is not a party to, subject to, or otherwise bound by any other agreement, arrangement, or understanding, written or otherwise, that prohibits, restricts, or in anyway whatsoever conflicts with its ability to enter into and fulfill its obligations under this Agreement;
(c) this Agreement is the valid and binding obligation of the Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws of general application affecting the enforcement of creditors' rights generally. The execution, delivery and performance of this Agreement and its compliance with this Agreement will not result in any violation of and will not conflict with, or result in any breach of any of the terms of, or constitute a default under, any provision of any state or federal law to which it is subject, or any mortgage, indenture, agreement (including any franchise agreements), instrument, judgment, decree, order, rule or regulation or other restriction to which it is a party or by which it is bound, or result in the creation of any mortgage, pledge, lien, encumbrance or charge upon the Products or any part thereof, pursuant to any such provision.
2.4 Exclusivity by Representative. Representative shall not, during the Term and as otherwise set forth in this Agreement, (i) market, offer for sale, or otherwise sell any Products and/or products or services similar in purpose to the Products available through any person or entity other than COMPANY; or (ii) assist others in the sale, service or promotion of the Products and/or products or services similar in purpose to the Products.
3. Term and Termination
3.1 Term. Except as otherwise provided in this Section 3, this Agreement shall become effective as of the date first above written and shall continue in force for a period of one (1) year (the “Initial Term”). This Agreement shall thereafter be automatically renewed annually for successive one (1) year periods, unless either Party has notified the other in writing at least sixty (60) days prior to the end of the Initial Term or any renewal term that the Agreement shall terminate at the end of the then current term. If such notice is properly and timely given, this Agreement will terminate at the end of the then current term, and no further automatic renewal shall occur thereafter. The Initial Term and any subsequent renewal terms are referred to collectively in this Agreement as the “Term.”
3.2 Termination. This Agreement may be terminated prior to the end of the Initial Term or any renewal term as set forth below:
(a) Either Party may terminate this Agreement for any reason by delivering a written notice ninety (90) days prior to the effective date of such termination.
(b) Either Party may terminate this Agreement immediately upon delivery to the other Party of a written notice following the events set forth below:
(i) The other Party makes a general assignment of substantially all of its assets for the benefit of creditors;
(ii) The other Party dissolves and/or ceases business operations;
(iii) A petition in bankruptcy or under any insolvency law is filed by or against the other Party and such petition is not dismissed within sixty (60) days after it has been filed; or
(iv) In the event of a material breach of any provision of this Agreement, by the non-breaching Party’s written notice (the “Termination Notice”) to the other Party of the claimed breach and the breaching Party’s failure to cure such breach within thirty (30) days after receipt of the Termination Notice.
4. Rights and Obligations on Termination or Nonrenewal
4.1 Cessation of Rights. Upon termination or nonrenewal of this Agreement in any manner and for any cause, all rights and obligations granted to Representative under this Agreement shall, except as otherwise provided in this Agreement, cease and Representative shall no longer be an authorized representative of COMPANY to sell the Products.
4.2 Obligations of the Parties. Representative further agrees that, in the event of termination or nonrenewal of this Agreement in any manner and for any cause:
(a) COMPANY will fill unshipped orders for purchase orders received by COMPANY from Purchasers (as defined below) prior to thirty (30) days preceding the effective date of termination. Upon either Party delivering a notice of termination to the other Party under Section 3 of this Agreement, Representative shall not submit any proposals to potential Purchasers without COMPANY’ express written consent.
(b) The Representative shall be entitled only to accrued commissions on those purchase orders already signed and accepted by COMPANY and/or filled by COMPANY in accordance with Section 4.2(a), above. Such accrued commissions shall be paid to Representative within thirty (30) days after COMPANY’ receipt of payments from Purchasers upon which the accrued commissions are based.
5. General Obligations of Representative
5.1 Marketing. Representative shall, with respect to the marketing and distribution of the Products, use reasonable good faith efforts to promote, market, sell and distribute the Products in the Exclusive Territory.
5.2 Expenses. Except as otherwise provided in this Agreement, Representative shall bear and pay all costs and expenses it incurs in carrying out its obligations under this Agreement.
5.3 Collateral Agreements. Representative shall, as reasonably requested by COMPANY, require each person or entity that purchases Products from COMPANY as a result of Representative’s introductions or other substantive efforts during the term (individually, “Purchaser,” and collectively, “Purchasers”) to execute any and all documents, contracts, releases, licensing agreements, or other agreements relating to the Products and shall deliver to COMPANY all executed copies of such documents and/or agreements relating to the Products. For example, Representative shall require any Purchaser that desires to have access to the Learning Cooperative as part of the Products purchased from COMPANY to execute (i) a Membership Agreement in the same form as the Membership Agreement provided by COMPANY; and (ii) a Content Agreement in the same form as the Content Agreement provided by COMPANY. Representative shall deliver to COMPANY any and all executed Membership Agreements and Content Agreements entered into by the Purchasers. Representative acknowledges that a Purchaser will not have access to, or will receive, as the case may be, the Learning Cooperative or any other Products until such time as Representative satisfies its obligations under this Agreement.
5.4 Performance by Representative. Representative shall perform all of Representative’s obligations and service under this Agreement in accordance with the highest professional standards and to COMPANY’ satisfaction.
5.5 Pricing Lists. The prices relating to the purchase of the Products shall be established by COMPANY, as determined in its sole discretion and Representative shall not sell, or submit proposals for the sale of the Products except in accordance with such prices.
6. General Obligations of COMPANY
6.1 Supply of Products. COMPANY shall supply and deliver to Purchasers at destinations identified by Representative, the Products necessary to fill the purchase orders for the Products received by COMPANY resulting from Representative’s sales to Purchasers during the Term.
6.2 Marketing Materials. COMPANY shall, subject to the terms and conditions of this Agreement and the availability of the Products, supply and deliver to Representative literature, technical information and other materials of like nature relating to the Products, as reasonably necessary to promote and market the Products for purposes of Representative’s performance of the obligations under this Agreement.
6.3 Expenses. Except as otherwise provided in this Agreement, COMPANY shall bear and pay all costs and expenses that it incurs in carrying out its obligations under this Agreement.
6.4 Training and Support. COMPANY may, as determined in its sole discretion, at COMPANY’ expense and in accordance with its policies and procedures provide training and customer support to Purchasers.
6.5 Pricing of Products. COMPANY shall deliver to Representative pricing lists for the Products as such lists are revised and/or updated.
7. Proposals Submitted to Potential Purchasers; Orders for the Products
7.1 Proposals. Representative shall prepare a written proposal for the sale of the Products to each potential Purchaser and each proposal shall be subject to COMPANY’ approval, as determined in its sole discretion. Representative shall, prior to submitting a proposal to a potential Purchaser, submit such proposal to COMPANY for its review and approval, which approval shall not be unreasonably withheld. COMPANY shall, within five (5) days after its receipt of a proposal from Representative, notify Representative of its approval or disapproval of the proposal. If COMPANY approves the proposal, as determined in its sole discretion, Representative may submit the proposal to the potential Purchaser. Any proposal delivered by Representative to a potential Purchaser without the prior approval of COMPANY shall be deemed null and void. Proposals prepared by or on behalf of Representative shall (a) describe the potential Purchaser (i.e., nature of business engaged in by such Purchaser) and list such purchaser’s name, form of business entity, if applicable, telephone number, address, email address (if applicable), and primary individual representative; (b) specifically identify the Products subject to the proposal, including, but not limited to the number of full-time enrollees relating to the Learning Cooperative represented by the Purchaser, if applicable; and (c) set forth the proposed purchase price for the sale of the Products identified in the proposal.
7.2 Purchase Orders. All purchase orders issued by Purchasers to COMPANY under this Agreement shall include the following information: (a) a description and quantity of the Products; (b) requested delivery dates; (c) shipping instructions and shipping address; (d) reference to this Agreement; (e) the sale price of the Products sold by Representative to the Purchaser; and (f) any other special information required by this Agreement or dictated by the circumstances of the order. Purchase orders should be sent to the address set forth in the Section 16.2 of this Agreement. Purchase orders shall be subject to COMPANY’ written acceptance and shall not be binding on COMPANY until the earlier to occur of (i) COMPANY’ acceptance of the purchase order or (ii) or shipment of the Products by COMPANY. COMPANY shall use reasonable efforts to notify Representative within five (5) business days after COMPANY’ receipt of the purchaser order of its acceptance or rejection of the purchaser order and of an assigned delivery date and/or date the Product will otherwise be available to the Purchaser, as the case may be.
7.3 Terms and Conditions. The terms and conditions of this Agreement will apply to each purchase order submitted by Purchasers to COMPANY under this Agreement whether or not the purchase order so states.
7.4 Terms and Conditions of Sale. Purchasers shall pay all freight charges (“Freight Charges”) relating to the delivery of the Products to the destinations identified in accordance with this Agreement. Any and all shipping charges and insurance coverage costs related to the shipment of the Products under this Agreement shall be the responsibility of Purchasers commencing upon the loading of the Products at COMPANY’ shipping dock. Freight charges shall not be included in determining the Commissions payable to Representative under Section 8 of this Agreement.
7.5 Other Forms. The use by Representative or COMPANY of any other form of quotation, invoice, purchase order, order acknowledgment or similar document will be for the convenience of the Parties only in connection with the transactions contemplated hereby. Any provisions of such quotation, invoice, purchase order, order acknowledgment or similar document (whether the same are additional, conflicting or different terms), other than quantity and specifications, shall not be deemed to be a part of this Agreement or effective as between the Parties.
8. Commissions and Other Payments
8.1 Commissions. Representative’s compensation under this Agreement is limited to commissions (“Commissions”) on those sales made by COMPANY of the Products to Purchasers, which directly result from Representative’s introductions or other substantive efforts during the Term. COMPANY shall pay to Representative Commissions at the rate of: (i) percent ( %) for the first dollars ($ ) (the “Threshold Amount”); and (ii) percent ( %) of any amounts in excess of the Threshold Amount, collected by COMPANY from any one (1) customer, calculated on the basis of total net paid invoices. For purposes of this Agreement, a “net paid invoice” shall equal the gross amount of a paid invoice, less any discounts, allowances, Freight Charges, or returns made by COMPANY, as determined in its sole discretion.
8.2 Payment. COMPANY shall deliver to Representative, at the address set forth in Section 16.2 of this Agreement, any payments due under Section 8.1 by the tenth (10th) day of the month immediately following the month in which COMPANY receives payments from Purchasers together with a statement setting forth the name(s) of the Purchasers, the amount of payment(s) received from such Purchasers, and the calculation upon which the Commissions were determined.
9. Authority and Warranty
9.1 Authority of Representative. Representative has no authority to obligate COMPANY regarding the terms of the sale of the Products or any warranty relating to the Products.
9.2 Warranty Disclaimer. Except as otherwise explicitly warranted by COMPANY directly to Purchasers, the terms of this Section 9 are in lieu of any warranties, expressed or implied, including, but not limited to, any warranty of merchantability or fitness for a particular purpose, and all other warranties are expressly excluded and negated.
10. Indemnification
10.1 Indemnification by COMPANY. COMPANY agrees to pay, indemnify, defend and hold Representative and its officers, shareholders, directors, members, employees, representatives, agents, affiliates, successors and permitted assigns, if applicable, harmless against and in respect of any indebtedness, obligations, liabilities and costs (including reasonable attorney’s fees, expert and consultant fees, and other costs of defense) (individually, “Loss” and, collectively, “Losses”) in connection with any dispute between Representative and any third party arising out of claims of patent or trademark infringement or any other violation of intellectual property rights of third persons in connection with the Products, provided that the applicable acts or events did not involve Representative’s negligence or wrongful act. COMPANY disclaims any warranties of infringement.
10.2 Indemnification by Representative. Representative agrees to pay, indemnify, defend and hold COMPANY, its managers, officers, members, employees, representatives, agents, successors and permitted assigns harmless against and in respect of any Losses in connection with any sales made by Representative to Purchasers, including, but not limited to, any warranties made by Representative to Purchasers or any other third parties, provided that the applicable acts or events did not involve COMPANY’ negligence or wrongful act.
10.3 Notice and Opportunity to Defend.
(a) The Party making a claim under this Section 10 is referred to as the “Indemnitee,” and the Party against whom such claim is asserted under this Section 10 is referred to as the “Indemnifying Party." All claims by any Indemnitee under this Section 10 shall be asserted and resolved as follows. Promptly after receipt by the Indemnitee of notice of any claim, including any action, proceeding or investigation (an “Asserted Liability”) that may result in Losses, the Indemnitee shall give notice thereof (the “Claim Notice”) to the Indemnifying Party. The failure to deliver a Claim Notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the resulting delay is materially prejudicial to the defense of any claim. The Claim Notice shall describe the Asserted Liability in detail, and shall indicate the amount (estimated, if necessary) of the Loss that has been or may be suffered by the Indemnitee.
(b) The Indemnifying Party may assume and thereafter conduct the defense of any claim by a third party involving an Asserted Liability (a “Third Party Claim”) with counsel of its choice; provided, however, that the Indemnifying Party will not enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitee (not to be unreasonably withheld or delayed) unless the proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon the Indemnitee. If the Indemnifying Party elects not to assume the defense of a Third Party Claim, in no event will the Indemnitee enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party, which shall not to be unreasonably withheld or delayed.
(c) Each Party shall cooperate in the defense of any Third Party Claim and shall use its reasonable best efforts to furnish all witnesses and testimony, records, materials and other information, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.
11. Advertising, Trademarks, Trade Names, Software
11.1 Grant of Right. In the advertising and sale of the Products, COMPANY hereby grants to Representative the right, to use, during the Term, COMPANY' trade names, trademarks, logos, and designations in relation to the Products.
11.2 Use of Trademarks/Names. Representative acknowledges COMPANY' ownership of any and all names relating to the Products, and any abbreviations thereof and all of COMPANY' trademarks, trade names, copyrights, logos, and designations (whether registered or not) relating to such names.
11.3 Expiration of Right. Upon the termination or nonrenewal of this Agreement, Representative will cease all display, advertising, and use of all COMPANY’ names, marks, logos, and designations, and will not thereafter use, advertise, or display any name, mark, or logo which is, or any part of which is, similar to or confusing with any such designation associated with the Products or COMPANY.
12. Product Changes. COMPANY reserves the right to discontinue, amend, change, and/or alter the Products as it deems appropriate. COMPANY shall, as it deems appropriate, give Representative written notice identifying any substantive changes that decrease or otherwise result in a degradation of a Product’s performance together with available information to enable Representative to evaluate the amendment, change, or alteration. If COMPANY discontinues a Product during the Term, it shall use reasonable efforts to give Representative sixty (60) days advance written notice of such discontinuation. During such notice period, Representative may continue to purchase the discontinued Product(s) in accordance with the terms of this Agreement or as otherwise provided in the notice of discontinuation.
13. Noncompetition; Nonsolication; and Confidentiality. Representative agrees that during the Term of this Agreement and for a period of one (1) year after the expiration of the Term or the earlier termination of this Agreement for any reason, or any extension or renewal of this Agreement, it will comply with the following provisions:
13.1 Noncompetition. Representative shall not, directly or indirectly, whether as a consultant, agent, employee, independent contractor, partner, shareholder, participant, owner or otherwise, (i) engage in any aspect or segment of the business then or previously conducted by COMPANY; or (ii) provide the services or sell the Products, or any services or products similar or closely related to the Products on its own behalf or on behalf of any other party other than COMPANY.
13.2 Employees. Representative shall not, whether directly or indirectly, for its own benefit or for the benefit of any other person, firm or business organization, or as a consultant, agent, employee, independent contractor, partner, shareholder, participant, owner or otherwise, solicit, for purposes of employment or association, any employee, agent or independent contractor of COMPANY, or induce any employee, agent, or independent contractor of COMPANY to terminate such employment or association for purposes of becoming employed or associated elsewhere, or hire or otherwise engage any employee, agent, or independent contractor of COMPANY as an employee of a company or other business with whom COMPANY may be affiliated or permit such hiring to the extent it has the authority to prevent same, or otherwise interfere with the relationship between COMPANY and its employees, agents, and independent contractors. For purposes of this Agreement, an employee, agent or independent contractor shall mean an individual employed or retained by COMPANY or any affiliate of COMPANY during the term of this Agreement and/or who terminates such association with COMPANY or any affiliate of COMPANY within a period of six (6) months either prior to or after the expiration of the Term or earlier termination of this Agreement.
13.3 Confidential Information.
(a) Trust Relationship. The relationship between COMPANY and Representative will be one of trust and confidence and there has been and/or will be financial information, related trade secrets and proprietary business information of COMPANY disclosed or made accessible to Representative that may include, but not be limited to, the records of COMPANY dealing with the content, materials, income, subscribers, digitizing processes, services, products, prices, and other items relative thereto (collectively and individually referred to as the "Confidential Information"
. COMPANY may, in its discretion, provide Representative with such promotional materials and content, demonstrations, catalogues, and other sales materials relative thereto (collectively and individually referred to as the “Sales Materials”). Confidential Information shall also include all technical, engineering, computer programming, and financial data, regardless of form or characteristic, including, but not limited to, any trademarks, patents, designs, inventions, specifications, reports, computer programs, production data, and specialized know-how and skill development by or now owned by COMPANY or any affiliate of COMPANY, and memoranda, notes, reports and documents, and all copies and extracts thereof, prepared by COMPANY or its officers, directors, employees or any of their agents and representatives, or Representative, relating to COMPANY’ business activities.
(b) Importance. Representative acknowledges that the Confidential Information and Sales Materials are extremely valuable and important assets of COMPANY and that the unauthorized use of the Confidential Information and Sales Materials would cause irreparable economic and business injury to COMPANY.
(c) Nondisclosure. Representative shall hold the Confidential Information and Sales Materials in strict confidence and in trust for COMPANY and shall not disclose or otherwise communicate, provide or reveal in any manner whatsoever any of the Confidential Information and Sales Materials to any person or entity without the prior written consent of COMPANY.
(d) Use. The Confidential Information and Sales Materials shall be used solely for the benefit of COMPANY and for no other purposes without the express written consent of COMPANY.
(e) Return. Upon the expiration of the Term or the earlier termination of this Agreement, Representative shall return to COMPANY, without demand from COMPANY, and Representative shall not retain, any Confidential Information and Sales, including, but not limited to, all originals, copies, reproductions, notes, facsimiles, samples and products thereof. The return of the Confidential Information and Sales Materials shall also include, but not be limited to, the return of all the following items to COMPANY immediately upon the termination of this Agreement: computers, computer discs, software and all other materials, supplies and equipment provided to Representative, if any.
(f) Ownership. Representative acknowledges that the Confidential Information and Sales Materials, regardless of form, are, and shall always remain, the sole and exclusive property of COMPANY.
14. Independent Contractor. Representative shall be deemed an independent contractor of COMPANY. All individuals hired by Representative shall become employees or independent contractors of Representative and Representative assumes sole responsibility for the payment of all applicable compensation and benefits, and the withholding of all appropriate taxes and other sums required to be withheld by the Internal Revenue Service and all other governmental agencies. As to any fees paid to Representative or expenses reimbursed under this Agreement, Representative shall be responsible for the withholding and/or payment of any of its income taxes, withholding payments, social security (SECA taxes) and any other amounts required by law to be paid or withheld from wages. Except as provided in this Agreement to the contrary, Representative shall maintain separate management of its business affairs and Representative shall have full and absolute authority and responsibility regarding the separate organization and operation of its business affairs.
15. Governing Law; Arbitration
15.1 Governing Law. This Agreement shall be governed by, and construed in accordance with, as to all matters, including, validity, construction and effect, the laws of the State of [NAME OF STATE], irrespective of its conflict of laws principles.
15.2 Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity of this Agreement, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in front of a panel of three (3) arbitrators at the offices of the AAA located in [NAME OF COUNTY] County, [NAME OF STATE]. The determination of the arbitrators shall be binding and final upon all Parties. The award of the arbitrators may be filed with the clerk for the Circuit Court for the County of [NAME OF COUNTY], [NAME OF STATE], and judgment may be entered by the court upon the arbitration award and execution may be issued upon the judgment.
16. Miscellaneous
16.1 Relationship. This Agreement does not make either Party the employee, partner, a joint venturer, agent or legal representative of the other for any purpose whatsoever. Neither Party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party.
16.2 Notices. All notices and communications between the Parties or required under this Assignment shall be in writing and delivered or sent by:
(a) hand delivery;
(b) facsimile transmission (together with a copy sent by first class mail);
(c) overnight delivery by a nationally recognized overnight delivery service;
(d) registered or certified mail, return receipt requested; or
(e) e-mail with an acknowledgment of receipt
to the address and telecopier numbers set forth below, or to a Party at such other address or telecopier number as such Party may designate in writing to the other Party:
If to COMPANY: _________________
Att: ____________
_________________ _________________
Telephone No. (___) ________
Telecopier No. (___) ________
E-mail: __________________
With a copy to: _________________________
Attn: _____________________
If to Representative: _________________________
Att: ____________________
_________________________
Telephone No. (__) _________
Telecopier No. (__) _________
E-mail: ___________________
With a copy to: _________________________
Att: ____________________
_________________________
_________________________
Telephone No. (____)_______
Telecopier No. (____)________
E-mail: ___________________
Any such notice or communication shall be deemed to have been given when:
(i) hand delivered (if hand-delivered);
(ii) transmitted (if sent by telecopier or e-mail and confirmation obtained); or
(iii) (x) actually received or (y) three (3) days after deposit in the mail (if mailed) or delivery to an overnight delivery service (if sent by overnight delivery), whichever is earlier.
16.3 Attorney Fees. In the event that any claim is brought by either Party as a result of a breach or default of any provision of this Agreement, the prevailing Party in such action shall be awarded reasonable attorney fees and costs in addition to any other relief to which the Party may be entitled.
16.4 Entire Agreement. This Agreement, including schedules attached hereto, constitutes the final, entire and complete agreement of the Parties with respect to the subject matter hereof, and supersedes any prior oral or written agreement or understanding between or represented by the Parties relating to the subject matter.
16.5 Amendment. This Agreement shall not be deemed or construed to be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment signed by the Parties.
16.6 Severability. In the event any of the terms of this Agreement are in conflict with any rule of law or statutory provision or are otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms of this Agreement and this Agreement shall continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreement.
16.7 Waiver. No failure by either Party to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.
16.8 No Assignment. Representative shall not assign or transfer any right or interest in and to this Agreement without the prior written consent COMPANY, provided, however, that Representative may assign their respective rights and obligations under this Agreement, in whole or in part, to any of its present or future affiliates or any successors in interest or purchaser(s) of all or substantially all of the assets of Representative, as the case may be. COMPANY may, as determined in its sole discretion, assign or transfer any or all of its rights and interests in and to this Agreement.
16.9 Counterparts; Telecopied Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original copy of this Agreement and all of which together shall be deemed to constitute a single instrument. Any signature to this Agreement delivered by a Party by facsimile transmission shall be deemed to be an original signature to.
The Parties have caused this Agreement to be executed on the day and date set forth set forth below.
“COMPANY”
_______________________________
______________________ By:_____________________________
Date _________
Its: President
“Representative”
________________________ By:_____________________________
Date
Schedule 1
To the Sales Representative Agreement
Products and Services
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