Exhibit 10.3
CirTran Corporation
Form 10-KSB
PRODUCT REPRESENTATIVE AGREEMENT
THIS PRODUCT REPRESENTATIVE AGREEMENT is made and entered
into as of the ___ day of ______________________, 2000, and
mutually agreed to by and between the following parties:
CTC: CirTran Corporation
a Utah corporation
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Representative:
1.Purpose of Agreement: The purpose of this Agreement
is to develop and maintain a substantial volume of sales of the
designated products of CTC in the specified territory through the
solicitation and obtaining of orders and accounts in accordance
with the terms of this Agreement.
2. Certain Definitions:
a.Product: Whenever the term "Product" is used in
this Agreement it shall mean and include only
those products listed in Exhibit "A" attached
hereto and by this reference made a part hereof.
b.Territory: The territory to which
Representative's rights are limited and in which
Representative shall perform its obligations under
this Agreement and be eligible for commission
pursuant to this Agreement is as follows:
Worldwide. Whenever the term "Territory" is used
in this Agreement it shall mean the territory
specified in the paragraph.
c.Account: When used in this Agreement the term
"Account" shall mean a purchaser of product from
CTC.
3. Engagement of Product Representative: CTC hereby engages
Representative, and Representative hereby covenants and agrees to
be engaged by CTC, as a nonexclusive Product Representative of
CTC's Product and Territory. Representative shall devote
adequate time, attention and energy to the performance of
Representative's duties under this Agreement.
4.Duties of Product Representative:
a.Find Accounts. Representative agrees to use
Representative's best efforts to find and present potential
Accounts to CTC and meet CTC's sales goals and/or sales forecasts
for sales of Product n the Territory. Representative shall
identify and contact potential Accounts, provide them with
evaluation copies of Product, help negotiate agreements for
purchase of Product, and assist in the formulation of marketing
strategies to the potential Account by CTC and for sales of
Product by the potential Account. Representative shall follow up
by telephone calls, letters, and/or personal visits on all leads
originated by Representative or CTC. Representative shall also
keep CTC advised of the names of all active prospects or
potential Accounts.
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b.Service Accounts. Representative shall perform the
following services for the Accounts
it generates or is responsible for:
i)Representative is responsible for the customer satisfaction
of Accounts it originates and is otherwise responsible for and
shall, to the best of Representatives ability and limits of
authority under this Agreement, anticipate the needs of such
Accounts as customers of CTC, and shall evaluate and communicate
with CTC and the Accounts regarding any complaints or disputes
that may arise in connection with any Account's order or dealing
with CTC.
ii)Representative shall use Representative's best efforts to
facilitate the sale by CTC of Product to the Accounts at the
prices and on the terms set by CTC. Representative shall provide
monthly, quarterly and annual sales forecasts and other reports
as requested by CTC. Such reports shall be the property of CTC.
iii)Representative shall follow through on
all details of sales and orders
including the progression of specific
orders, confirming that orders have been
received by CTC, notifying the customer
of shipping dates, return and
replacement of defective Product,
handling of sales and distribution
incentives, and other communication
between CTC and the Account.
iv)Representative shall keep CTC closely
advised of all matters pertaining to the
Accounts it originates or is otherwise
responsible for within the Territory,
including submission of such reports and
other information as may be prescribed
or from time to time required by CTC.
v)Representative shall not collect or receive any monies on
behalf of CTC, except when expressly authorized in writing by CTC
and then only in accordance with specific instructions.
Representative shall, to the best of Representative's ability,
cooperate with CTC and assist Accounts in punctually meeting
Accounts' obligations to CTC.
c. No Warranty Obligations.
i)Any warranty for Product shall run directly from CTC to the
Account and as applicable under any such warranty, the Account
must return any allegedly defective Product to CTC and not to
Representative. Representative shall have no authority to accept
any returned Products.
ii)Under no circumstances shall CTC be responsible to
Representative or any third party for CTC's failure to fill
accepted orders, or for delay by CTC in filling accepted orders
regardless of whether or not such failure or delay is due to any
cause beyond CTC's reasonable control.
d.Indemnification. Representative shall be solely
responsible for, and shall indemnify and hold CTC
free and harmless from, any and all claims,
damages or lawsuits (including CTC's attorney's
fees) arising out of the negligent acts of
Representative, its employees or its agents. CTC
will promptly deliver to Representative any papers
served upon it in
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any proceeding covered by this indemnity, and
Representative will defend same as its expense. CTC
shall, however, have the right to participate in the
defense at its own expense.
5. Commission. A monthly commission on Product net sales
originated by Representative shall be paid by CTC equal to 5% of
such sales.
With respect to an Account, "net sales" shall mean gross
sales minus any freight, returns and refunds, defective units,
evaluation units or samples delivered, other allowances, credits
and charges, and, unless otherwise agreed, customer incentives.
Unless otherwise agreed in writing, commission shall be payable
only for revenues from sales of Product to the Account of
Accounts originated by Representative. Representative shall not
receive any commission for sales of other CTC products or
services other than Products, or for sales originated by other
product representatives of CTC. However, Representative and CTC
may agree that certain Accounts are originated by the joint
efforts of Representative and another party, and if so,
commission shall be divided and allocated to Representative as
CTC shall reasonably determine. CTC reserves the right to charge
back (debit) the full amount of paid commissions on Products
returned for credit by Accounts to CTC. CTC reserves the right
to charge back (debit) commissions on invoices to Accounts that
are subject to price reductions.
6. Payment of Commission. Subject to any authorized advance of
commission to Representative and the terms and conditions
thereof, payment of commission pursuant to the terms of this
Agreement shall be made to Representative on a monthly basis
(During the first week of every new month) and shall be paid
after CTC receives payment on such sales. Representative shall
be responsible for all of its costs and expenses. CTC has no
obligation to Representative of payment of costs, expenses or
commissions or any other compensation not expressly set forth in
this Agreement. The commissions provided for in this paragraph 6
shall constitute Representative's full compensation by CTC.
7. Nonexclusive Product Representative. CTC may in its
discretion engage other persons or individuals besides
Representative as representatives of Product (and/or CTC's other
products or services) acting within all or part of the Territory.
CTC reserves the right to market its products directly within the
Territory.
8. Personal Services. Representative agrees to carry out
its obligations under this Agreement personally and except for
Representative's employees per se, Representative shall not
assign or otherwise delegate the performance of any obligation of
this Agreement to any individual, person or entity without the
advance written consent of CTC.
9. Acceptance of Accounts. Representative does not have
the authority to accept any Account or order or execute any
contract on behalf of CTC or to incur any obligation on behalf of
CTC. CTC s under no obligation to accept any Account or
potential Account which CTC does not desire to accept. An
Account shall become an Account of CTC only if and when an
authorized officer of CTC executes a written contract with, or
accepts a purchase order from, such Accounts. CTC has no
obligation to Representative for any potential Account that does
not become an Account. CTC shall have the sole right of credit
approval or credit refusal of Accounts in all cases.
10. Acceptance of Orders. All orders for Product are subject to
acceptance by CTC and approval of CTC's credit department and may
after acceptance be canceled or filled in whole or in part at
CTC's discretion. CTC may grant such allowances to Accounts as
it deems expedient.
11. Sales Policy. Representative agrees to accurately
communicate to Accounts and prospective Accounts all sales and
pricing policies, terms and discount schedules of CTC. CTC
agrees to provide Representative with CTC's then current sales
and pricing policies, terms, discount schedules and such other
sales, distribution and Product information and advertising as
CTC deems advisable.
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▇▇. Use of CTC's Name and Marks. Representative shall not use,
create, publish, circulate or cause to be published or
circulated, any documents or form of advertising or information,
circular or brochure of any kind whatsoever which relates to
Product and which is not approved by CTC. The use of CTC's name,
trademarks and services marks by Representative shall comply with
the policies and procedures of CTC. Representative agrees not to
register or apply for registration of any trade name, trademark
or service ▇▇▇▇ of CTC in any jurisdiction. Representative shall
have no interest in such trademarks, trade names, logos or
identifying slogans except as herein expressly provided, and
Representative's use thereof shall cease immediately upon receipt
by Representative of direction from CTC to terminate usage and in
any event upon termination or of this Agreement.
13. Samples. CTC agrees to provide Representative with a
reasonable quantity of evaluation copies of Product ("Samples")
as requested by Representative. Representative will return to
CTC any Samples in its possession at the termination of this
Agreement and provide a full and accurate accounting of any
Samples not returned.
14. Confidentiality. Representative understands that CTC's
customer and Account names and Account information are
confidential information, trade secrets and valuable proprietary
information of CTC, and Representative agrees not to directly or
indirectly use outside the scope of this Agreement, or furnish or
divulge the names, address, telephone numbers or other
information about any CTC Account, customer or potential Account
to any individual, person or entity. The obligations of this
paragraph 14 shall survive the termination of this Agreement.
15. Term. This Agreement shall be in effect from the date first
above written for the one year period immediately following
unless the term is extended by mutual written agreement of both
parties or unless earlier terminated by either party in
accordance with the termination provisions in paragraph 16,
below.
16. Termination. This Agreement shall be terminable by either
party (for any reason or no reason) upon ninety (90) days written
notice to the other. In addition, in the event Representative
shall fail to fully comply with the terms, covenants and
conditions of the Agreement, then CTC may at its option terminate
the Agreement upon thirty (30) days written notice to
Representative. After termination of his Agreement no commission
shall be payable to Representative for sales or orders of an
Account which accrue after termination.
17. Force Majeure. CTC shall not be liable for loss, damage or
delay whether resulting from causes within or beyond its
reasonable control, including fire, strike, actions by civil or
military authorities, priorities established by any department,
branch or representative of the United States Government,
insurrection or riot, embargoes, delays in transportation,
inability to obtain necessary labor, materials or manufacturing
facilities, nor in any event for consequential damages.
18. Special Provisions.
a. Export Act. Representative hereby warrants and
certifies that no part of the Products or any
related item or products will be made available or
exported to or within any country in contravention
of any law of the United States, such as the
Export Administration Act of 1979 and the
regulations relating thereto, and including
without limitation any Department of Commerce
regulations concerning data encryption technology.
Representative shall be solely responsible for the
procurement and renewing of all import and export
licenses and any encryption certifications
required under the laws of the United States of
any foreign country for the export and import of
Representative's Products, and shall pay all costs
and expenses in connection with such procurement
and renewal.
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b. Foreign Government Approvals. Representative
represents and warrants that this Agreement and
the transactions contemplated by this Agreement do
not require any approval, license or authorization
by, or any registration or filing with, any
government or agency within the Territory that has
not been obtained and a copy thereof delivered to
CTC prior to the execution of this Agreement by
Representative. It is the sole responsibility of
Representative to obtain any such approval,
license, authorization, costs and expenses
relating thereto.
c. Compliance with Law. Representative represents and warrants
that it has and will continue to comply with all laws,
regulations and ordinances applicable in the Territory pertaining
to the subject matter of this Agreement and will fully indemnify
CTC against any claims, losses, liabilities and expenses incurred
by CTC as the result of any violation of any such law, regulation
or ordinance by Representative or its employees or agents.
d.Impairment by Government Regulation. In the event that the
government of any country in the Territory or of the United
States, or any agency or subdivision of the government of any
such country, adopts or interprets any measure, regulation or
law, which is in conflict with the terms of this Agreement,
either party may propose negotiations for an appropriate
modification of the Agreement. The parties shall in good faith
attempt to agree upon an appropriate modification.
e.Different Customs, Laws and Languages. Representative
acknowledges that the Territory is at a great distance from CTC,
and has within the Territory various laws, languages and customs
that are foreign to and unknown by CTC. Accordingly, in an
effort to help CTC in its performance of its obligations,
Representative shall assist CTC in dealing with any problems
arising from such distance and differences. CTC shall not be
liable for any breach or default caused by such problems.
f.Local Laws. To the extent legally permissible,
Representative hereby knowingly and willingly waives any special
rights which may accrue to it against CTC under the laws of the
jurisdictions in which Representative does business and
acknowledges that the rights specifically set forth in this
Agreement constitute Representative's full compensation for its
services hereunder.
g.Foreign Exchange Rate. All monetary amounts provided under
this Agreement shall be in United States Dollars. Commission and
other amounts payable to CTC under this Agreement shall be paid
in United States Dollars at the exchange rate in effect on the
date payment to CTC is made by Representative. For all other
purposes, the foreign exchange rate shall be the applicable
currency per U.S. Dollar rate published by the Wall Street
Journal on the day the payment was due.
h.Publicity. Press releases and other forms of publicity or
advertising of any nature which pertain to this Agreement or
which mention the name of the other party shall not be published
without the prior written consent of such party, except as
otherwise required by law.
i.Allocation of Risk. This Agreement defined a mutually
agreed upon allocation of risk between the parties and the
consideration had been calculated to reflect such allocation of
risk.
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j.Injunction. Notwithstanding any other provision
herein, in the event of Representative's actual or
threatened breach of any material provision of the
Agreement intended to protect CTC's technology and
or reputation, Representative specifically
acknowledges that CTC will incur incalculable and
irreparable damage and that CTC has no adequate
remedy at law for such threatened or continuing
breach. Therefore, CTC shall be entitled to
injunctive relief immediately and permanently
retraining Representative from such threatened or
continuing breach, in addition to all other
remedies, relief or damages available to CTC
hereunder, at law or in equity including without
limitation temporary restraining orders,
preliminary and permanent injunctions, specific
performance and money damages. Courts in the
Territory shall also fully enforce this Agreement
and grant and enforce such injunctive relief.
k. English Language. All communications between the
parties concerning anything within the scope of
this Agreement shall be in the English language.
This Agreement is written in the English language
and shall be construed and interpreted in
accordance with such language, regardless of any
translations that may be prepared or executed.
l. Weights and Measures. All references to weights
and measurements, volumes, capacity and amounts,
shall be defined applied pursuant to the laws and
standards of the United States of America.
19. Relationship. Representative is not an employee,
partner or agent of CTC. Representative's relationship with CTC
shall be that of an independent contractor only.
20. Governing Law. This Agreement is made in Utah and shall be
governed by and enforced in accordance with the laws of the State
of Utah and of the United States of America.
21. Severability. If any provision in this Agreement is
invalid or unenforceable, such provision shall be construed,
limited or, if necessary, severed but only to the extent
necessary to eliminate such invalidity or unenforceability and
the other provisions of this Agreement shall remain unaffected.
22. No Conflict. Each party hereto warrants that is has
the right to enter into this Agreement and that this Agreement
presents no conflict with any obligation of the party to any
third party.
23. Entire Agreement. This agreement is nontransferable and
sets forth the entire understanding and final agreement between
CTC and Representative and supersedes all prior representations
and negotiations. This Agreement may be amended only in a
writing signed by both parties hereto.
24. Authorization. The individuals signed below in their
official capacities by so signed represent that (a) they are
fully and lawfully authorized to execute this Agreement for and
on behalf of the party for whom they are signed and that such
party shall be fully bound thereby; (b) said party's performance
under this Agreement will not breach any other contractual
obligations to third party nor infringe upon any third party's
rights; and (c) there are no actions, suits or proceedings
pending or threatened against or affecting said corporation or
entities which would have any material adverse affect upon the
rights granted or property sold by said corporations or entities
under this Agreement, or in any way adversely affect this
Agreement's legality or enforceability.
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IN WITNESS WHEREOF, the parties hereto have caused the
Agreement to be executed the day and year first above written.
Independent Rep.
By:
_______________________________________
CIRCUIT TECHNOLOGY INC.,
By:
_______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President
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EXHIBIT A
("Product Representative Agreement")
The attached Product Representative Agreement relates only
to the following CTC products:
Circuit board assemblies, cable, harness and plastic
injection molding
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