EXHIBIT 10.28
Subcontractor Agreement
Effective Date: 03/09/01
Between: Tecniflex Inc., a Tennessee corporation having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
("Tecniflex"), and One Source Technologies, having its principal place
of business at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
("Associate").
1.0 PUrpose: TECNIFLEX provides hardware products and maintenance services for
banks and financial institutions. Associate also provides maintenance services
for banks and financial institutions in various geographical locations.
Tecniflex has current customers that can benefit from the maintenance services
and geographical location of ASSOCIATE. TECNIFLEX wishes for ASSOCIATE to
provide maintenance services to designated TECNIFLEX customers for an hourly
fee.
2.0 Agreement Term: The Initial Term of this Agreement will begin on the
Effective Date and will continue for one year. Thereafter, the Agreement will
automatically renew for one-year periods, until terminated by either party at
any time by written notice to the other no less than thirty (30) days prior to
termination.
3.0 Services
3.1 Provision of Services: During the term of this Agreement, ASSOCIATE will
provide equipment maintenance services directly to designated TECNIFLEX's
Clients ("End Users") on site at End User's locations, as requested by
TECNIFLEX. ASSOCIATE may accept or decline requests for maintenance services by
TECNIFLEX. The specific services to be provided by ASSOCIATE including both
routine maintenance services and corrective repair services shall be conveyed to
Associate by Tecniflex.
3.2 Dispatch: End Users will contact TECNIFLEX for access to all maintenance
services. Upon notification from End User of the need for Services, TECNIFLEX
will contact ASSOCIATE on an as needed basis. ASSOCIATE will respond directly to
each End User as designated by TECNIFLEX. TECNIFLEX shall not make payments to
ASSOCIATE for any particular request, for which ASSOCIATE does not perform
maintenance services for the End User.
3.3 Parts: Tecniflex, at its sole discretion, may provide parts or supplies
necessary for maintenance services to ASSOCIATE for the sole purpose of
maintenance services to be provided to an End User as designated by Tecniflex.
TECNIFLEX shall pay for all costs associated with shipping parts to ASSOCIATE or
End User.
4.0 Payment for Services: In consideration for the Services provided under this
Agreement, TECNIFLEX will pay ASSOCIATE on an hourly basis at
thirty-five-dollars per hour. TECNIFLEX shall not reimburse ASSOCIATE for any
expenses incurred.
5.0 Commissions: ASSOCIATE may refer potential clients and End Users to
Tecniflex regarding the Sale of Equipment Maintenance, Equipment, and Supplies
for a fee, ("Referral Sale"). A "Referral Sale" shall only include the sale of
Equipment Maintenance, Equipment, and Supplies, which are not currently under a
maintenance agreement with Tecniflex. In order to obtain a commission for a
"Referral Sale," ASSOCIATE must make a written referral to TECNIFLEX, which
notifies TECNIFLEX of the type of equipment to be serviced, the location of the
equipment, the type of supplies needed, and the person to be contacted regarding
the equipment. If the written referral results in payment to TECNIFLEX within
ninety (90) days of the written referral, TECNIFLEX shall issue (25%) percent of
the Salespersons Commission to ASSOCIATE. ASSOCIATE may request the average
amount of a Salespersons Commission on a quarterly basis. Former TECNIFLEX
clients that ASSOCIATE refers to Tecniflex shall not be considered for Referral
Sales under this Section.
6.0 Referral and Transfer of Former Tecniflex. as part of the consideration for
this Agreement, ASSOCIATE agrees to refer ASSOCIATE'S current clients, which are
former TECNIFLEX clients back to TECNIFLEX. ASSOCIATE will help and assist with
any and all efforts of TECNIFLEX to have these former TECNIFLEX clients sign
agreements with TECNIFLEX. These efforts shall include written letters to former
TECNIFLEX clients from ASSOCIATE.
7.0 Confidentiality: The parties to this Agreement will take all reasonable
steps to ensure that any material or information considered by either party to
be confidential, which the other party has possession or knowledge of in
connection with this Agreement, will not be disclosed to others, in whole or in
part, without the prior written permission of the other party. "Confidential
Information" will include, but will not be limited to, trade secrets, Client
Lists, or proprietary information related to either party's past, present or
future research, development and business activities or to the development or
operation of any computer system or software that is subject to this Agreement,
regardless of whether such information is identified as being confidential.
"Confidential Information" will also include all information designated as
confidential by either party. Neither party will have the obligation to maintain
the confidentiality of any data or information which (i) was in the receiving
party's lawful possession prior to receipt from the other party, (ii) is later
lawfully obtained by the receiving party by a third party having no obligation
of secrecy to the other party, (iii) is available to the public through no act
or failure of the receiving party, (iv) is readily available in the public
domain, or (v) is independently developed by the receiving party. The receiving
party will immediately return or destroy any or all Confidential Information
that has been provided to it by the other party, upon the other party's request.
8.0 Relationship of the Parties: TECNIFLEX and ASSOCIATE agree that each shall
be an independent contractor as to the other, and that nothing in this Agreement
is intended to establish or authorize either party as an agent, legal
representative, joint venture party, franchisee, employee or servant of the
other for any purpose. ASSOCIATE will have no authority, whether express or
implied, to assume or create any obligation on behalf of TECNIFLEX, including,
without limitation, price quotations, letters or other documents using the name
of TECNIFLEX except as expressly provided herein or with the duly authorized
written consent of TECNIFLEX.
9.0 Non-Solicitation. ASSOCIATE agrees that during the term of this Agreement
and for a period of one (1) year immediately following the termination of this
Agreement for any reason, ASSOCIATE shall not, on ASSOCIATE's own behalf or on
behalf of any person or business contact attempt to contact any End User, or any
representative of any End User to induce or attempt to induce the End User to
purchase maintenance services from any source other then TECNIFLEX for services
that TECNIFLEX sells to End Users. ASSOCIATE shall not engage in the actions
prohibited by this section directly or indirectly, whether as manager,
salesperson, agent, technical support, sales, or service representative, or
otherwise.
10.0 Limitation of Liability: Each party to this Agreement will be liable for
loss and damages arising out of its own acts or omissions. ASSOCIATE shall be
individually and solely liable for any acts of gross negligence committed during
the performance of services rendered by ASSOCIATE. ASSOCIATE agrees that
TECNIFLEX's total liability hereunder, including but not limited to, any alleged
negligence of TECNIFLEX shall not exceed the amount paid to ASSOCIATE. In no
event will TECNIFLEX be liable for any incidental or consequential damages,
including without limitation, loss of use, loss of data, loss of profit, loss of
monies deposited to or removed from equipment or any affiliated components, or
liability to third parties, however caused, whether by the negligence of
TECNIFLEX or otherwise.
11.0 Force Majeure: TECNIFLEX shall not be liable to ASSOCIATE for any delay or
failure by TECNIFLEX to perform its obligations under this Agreement or
otherwise if such delay or failure arises from any cause or causes beyond the
reasonable control of TECNIFLEX, including but not limited to labor disputes,
strikes, other labor or industrial disturbances, acts of God, floods,
lightening, shortages of materials, rationing, utility or communication
failures, earthquakes, casualty, war, acts of public enemy, riots,
insurrections, embargoes, blockages, actions, restrictions, regulations or
orders of any government, agency or subdivision thereof.
12.0 Notices: Any notice required or authorized to be given ("Notice") will be
in writing and will be deemed given when received via certified or registered
mail, postage prepaid, or via any other public or private delivery service at
the addresses set forth below.
13.0 Assignment: ASSOCIATE may not assign or otherwise transfer its rights,
interest or obligations under this Agreement without the prior written consent
of TECNIFLEX.
14.0 General. This Agreement may not be modified except by a written instrument
signed by authorized representatives of both ASSOCIATE and TECNIFLEX. This
Agreement constitutes the entire agreement and contains all of the
representations of the parties with respect to the matters contained in this
Agreement. No term or provision of this Agreement will be deemed waived and no
breach excused, unless the waiver is in writing and signed by the party granting
such waiver. Any consent by either party to, or waiver of, a breach by the other
party, will not constitute consent to or waiver of any other different or
subsequent breach. All covenants, representations, warranties and agreements of
the parties contained in this Agreement shall be binding on and inure to the
benefit of the parties' respective heirs, executors, administrators, personal
representatives, successors, assigns and permitted designees. The laws of the
state of Tennessee shall govern the interpretation and enforcement of this
Agreement. If any provision of this Agreement should be held invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this Agreement will not be affected thereby.
Effective Date: 3-9-01
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TECNIFLEX ASSOCIATE
OneSource Technologies, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Authorized Name and Signature Authorized Name and Signature
931 N Walnut ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
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City, State City, State
SCHEDULE A - PAYMENT SCHEDULE
Tecniflex will pay "Associate" monthly for an amount equal to 80% of the
contract base revenue with the exception of the ▇▇▇▇▇ Fargo accounts which will
be paid monthly for an amount equal to 90% of the contract base revenue
/s/ J ▇▇▇▇▇▇▇▇
1 March 01