SouthPeak Interactive, Sales Representative Agreement
Exhibit 10.9
SouthPeak
Interactive, Sales Representative Agreement
This
Agreement ("Agreement") is made and entered into as of July 21, 2006, by and
between SouthPeak Interactive LLC., ("Publisher"), a Virginia
Corporation,
with an
address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ U.S.A., and
West
Coast Sales ("Representative"), a
corporation, with an address of ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. ▇▇ ▇▇▇▇▇
WHEREAS,
Representative is engaged in the business of the sales and marketing of
videogames, software and related products ("Products"), and maintains a sales
force experienced in such sales;
WHEREAS,
Publisher is in the business of publishing and distributing the Products;
and
WHEREAS,
Representative possesses the expertise and sales marketing knowledge consistent
with the sales objectives of Publisher.
NOW
THEREFORE, the parties hereto agree as follows:
1. Appointment
Publisher
hereby appoints Representative as an exclusive representative to sell the
Products published by Publisher set forth in Schedule A, which is attached
hereto and incorporated herein (the "Authorized Products"), solely in the
territory set forth on Schedule B, attached hereto and incorporated herein
(the
"Authorized Territory"). Publisher may modify, discontinue or change the
Authorized Products, and add or delete Authorized Products from Schedule A,
in
its sole discretion, upon written notice to Representative. During the Term
(as
defined below) of this Agreement, Representative shall have the right to sell
the Authorized Products in the Authorized Territory to the account(s)
specifically identified in Schedule C (the "Authorized Account(s)"). Nothing
contained in this Agreement shall prohibit Publisher from marketing and selling,
nor from appointing others to market and sell the Authorized Products to
accounts other than the Authorized Account(s) or products not identified as
Authorized Products to any account, including Authorized
Account(s).
2. Representative
Obligations
Representative
hereby agrees to use its best efforts to promote the sale of the Authorized
Products to Authorized Accounts in the Authorized Territory and to cooperate
with Publisher in carrying out the Publisher's sales programs. To this end,
Representative shall, without limitation:
(a) Maintain
an office and staff in the Authorized Territory sufficient to meet obligations
under this Agreement;
(b) Contact
all Authorized Accounts and potential accounts on a regular basis as agreed
upon
with the Publisher's sales management;
(c) Cooperate
at the request of Publisher and furnish such information concerning the credit
standing and accounts payables of Authorized Accounts in the Authorized
Territory;
(d) Be
responsible for assisting Publisher in assuring the prompt payment from
Authorized Accounts within their terms of credit extended by
Publisher;
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(f) Provide
such sales and lead reports and forecasts and such other information reasonably
requested by Publisher, including, but not limited to, reports and forecasts
regarding market conditions, pending business and contacts, problem areas,
and
sales plans and programs; and
(g) Provide
necessary and reasonable customer support and consultation, including
accommodating customer relations and inquiries.
3. Purchase
Orders
All
purchase orders for the Authorized Products received by Representative shall
be
promptly forwarded to Publisher and each Authorized Account order submitted
by
Representative for the Authorized Products shall be subject to Publisher's
prior
approval and acceptance. Representative shall have no authority to accept or
reject any orders for or in the name of Publisher or in any other way to bind
or
to enter into contractual commitments for or on behalf of Publisher and
Representative will so inform all Authorized Accounts in the Authorized
Territory. In all cases the documents forwarded to Publisher shall be the
original order documents received from the Authorized Account. Publisher may
accept orders by telephone or other electronic means, but in all such cases
the
Representative shall promptly forward to Publisher the supporting original
purchase order document. Unless otherwise agreed upon by Publisher and
Representative, Publisher shall ship all of the Authorized Products directly
to
the Authorized Accounts from such location(s) as Publisher shall
determine.
4. Terms
of Sale
Publisher
shall at prices and upon terms and conditions establish Sale of the Authorized
Products. At its sole discretion, Publisher shall have the right at any time
to
establish or change its prices, account price list, discount rates, terms and
conditions of sale, warranty, delivery and packaging charges, methods of payment
and any other matters relating to the sale of the Authorized Products and to
discontinue offering any Authorized Product without thereby incurring any
obligation or liability to Representative.
5. OEM
Accounts and License Transaction
This
Agreement does not apply to sales to "original equipment manufacturers" now
or
hereafter designated by Publisher in its sole discretion, nor does it apply
to
transactions with Authorized Accounts or other accounts who obtain rights in
the
Authorized Products by license rather than purchase. Representative shall not
have the right to negotiate or enter into any such agreements with any third
parties and no commissions and/or compensation shall be payable to
Representative from sales to, by or through original equipment manufacturers'
or
licensees or sublicenses of the Publisher.
6. Records
and Reports
During
the Term and for a period of one (1) year thereafter, Representative shall
maintain complete and accurate books and records and retain originals or copies
of all correspondence with Authorized Accounts and all other correspondence
of
any kind relating to all obligations of Representative under this Agreement.
Publisher, or its designee, upon reasonable notice shall have the right at
any
time during the Term of this Agreement, and for a period of one (1) year
thereafter, to make an examination of such books, records and correspondence
maintained by the Representative hereunder.
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7. Compensation
Publisher
agrees to compensate Representative at the rate of three percent (3%) of the
Net
Receipts (as defined herein) for sales of the Authorized Products made by
Representative to Authorized Accounts (the "Commission Rate"). In addition,
Publisher may change the Commission Rate for Authorized Accounts and add
Authorized Accounts with different Commission Rates to this Agreement from
time
to time. Net Receipts are defined as all money actually received by Publisher
from the Authorized Account(s) for the purchase of Authorized Products, reduced
by any marketing discount funds, discounts, returns or allowances, price
protections, credits or other adjustments, applicable taxes, shipping and
handling. All sales commissions due hereunder shall be payable to Representative
on the last day of the month following the month in which Publisher receives
Net
Receipts from the Authorized Accounts. Commissions shall be considered as earned
as of the date of payment of Net Receipts to Publisher by Representative's
Authorized Account.
8. Term
The
initial term (the "Initial Term") of this Agreement shall commence as of the
date of this Agreement and continue for a term of one (1) year, unless sooner
terminated in accordance with Section 9 below. Publisher may extend the term
for
an additional one (1) year period (the "Renewal Term") by giving Representative
written notice thereof within thirty (30) days of the end of the Initial Term.
The Initial Term and Renewal Term, if any, are hereinafter collectively referred
to as the Term.
9. Termination
(a) During
the Term, Publisher may terminate this Agreement or the exclusive nature of
the
appointment of Representative as set forth in Section 1, upon either (1)
immediate written notice if Representative is in material breach of any
representation, warranty, indemnification or any other provision of this
Agreement; or, (2) ten (10) days written notice by Publisher, for any other
reason at Publisher's sole discretion. During the Term, Representative may
terminate this Agreement upon thirty (30) days prior written notice, if
Publisher is in material breach of this Agreement, and fails to cure that breach
within thirty (30) days after receipt of written notice thereof.
(b) Upon
expiration or termination of this Agreement, representative shall return to
Publisher all technical, sales, advertising and promotional materials and
packages, cartons, labels, containers and similar items pertaining to the
Authorized Products and samples of the Authorized Products or, at Publisher's
option, shall take such other action with respect to such items as requested
by
Publisher. Publisher shall also have the right to inspect and make copies of
all
or any portion of any documents regarding fulfillment of Representative's
obligations assumed under this Agreement as per Section 6 of this Agreement.
Adjustment and/or payment of all claims between Representative and Publisher
shall occur no later than one (1) year after the effective date of expiration
or
termination of this Agreement, except that no commission shall be paid to
Representative on account of orders shipped to any Authorized Account if (1)
any
proceedings have been threatened or commenced against such account under any
bankruptcy, insolvency, or debtor's relief law (until such proceeding has been
vacated or set aside) and (2) any payments received by Publisher from such
Authorized Account might be required, in Publisher's sole judgment, to be paid
over to a trustee or other person in connection with such proceeding.
Representative shall repay any commissions received which are attributed to
goods paid for if such payments are required to be refunded pursuant to a
judgment or order issued from such proceeding.
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(c)
This
Agreement and all privileges, rights and obligations herein shall terminate
except that Representative's obligations under Section 6 and under Sections
10,
12, 13, 14, 16, 18, 19, 24 and 25 shall survive the termination or expiration
of
this Agreement.
10. Proprietary
Rights
Ownership
of all applicable copyrights, trade secrets, patents and other intellectual
property rights in the Authorized Products shall remain vested in Publisher,
or
in Publisher's licensors. Representative shall not remove Publisher's copyright
and/or trademark notices, restricted rights legends or any other notices from
the Authorized Products. Representative shall fully cooperate with Publisher
in
any action relating to enforcement of Publisher's proprietary
rights.
11. No
Representations
Representative
may not make any contracts or commitments on behalf of Publisher nor make any
warranties or other representations regarding the Authorized Products other
than
those previously authorized by Publisher in writing.
12. Representations
& Warranties
Representative
represents, warrants and covenants that: (i) it has full power and authority
to
enter into this Agreement and to carry out its obligations hereunder; (ii)
this
Agreement has been duly authorized, executed and delivered by Representative
and
constitutes a legally enforceable agreement of Representative; (iii) this
Agreement is not limited or restricted by, and is not in conflict with, any
commercial arrangements, obligations, contract, agreement or other instrument
to
which Representative is either bound or subject; (iv) the performance of this
Agreement by Representative shall not infringe any intellectual property rights
of any person; and (v) Representative shall not violate any rules, regulations
or laws in securing orders of the Authorized Products.
Publisher
represents and warrants that (i) it is a duly existing corporation under the
laws of The State of Virginia; (ii) it has full power and authority to enter
into this Agreement and to carry out its obligations hereunder; and (iii) to
the
best of Publisher's knowledge, the Authorized Products will not include any
content matter or service that will infringe or misappropriate any rights of
any
third party.
13. Indemnification
Each
party hereby agrees to defend, indemnify and hold, the other party, its
shareholders, directors, officers, employees, parent companies, subsidiaries,
and affiliates, harmless from and against any and all claims, liabilities,
judgments, penalties, and taxes, civil and criminal, and all costs, expenses
(including, without limitation, reasonable attorneys' fees) incurred in
connection therewith, which any of them may incur or to which any of them may
be
subjected, arising out of or relating to a material breach of this Agreement
or
a breach of any representation and/or warranty of the other
party.
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14. Limitation
ALL
IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED,
THE
LIABILITY OF PUBLISHER, IF ANY, FOR DAMAGES RELATING TO ANY OF THE AUTHORIZED
PRODUCTS WILL BE LIMITED TO AMOUNTS OWED PURSUANT TO PARAGRAPH 3 HEREOF AND
WILL
IN NO EVENT INCLUDE LOST PROFITS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF
ANY
KIND EVEN IF PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
15. Independent
Contractors
It
is
expressly agreed that Publisher and Representative are acting hereunder as
independent contractors and under no circumstances shall any of the employees
of
one party be deemed the employees of the other for any purpose. This Agreement
shall not be construed as authority for either party to act for the other party
in any agency or other capacity, or to make commitments of any kind for the
account of or on behalf of the other except to the extent and for the purposes
provided for herein.
16. Confidentiality
During
the Term of this Agreement and for a period of three (3) years from the
expiration or earlier termination of this Agreement, Representative will regard
and preserve as strictly confidential all information and material, including
the terms and conditions of this Agreement, marketing information, manufacturing
information, and customer or client information, provided by Publisher
(hereinafter "Confidential Information"). Representative further acknowledges
and agrees that, in the event of a breach or threatened breach of this Section
16, Publisher shall have no adequate remedy in money or damages and,
accordingly, shall be entitled to preliminary, permanent and other injunctive
relief without having to post bond. Representative represents and warrants
that
all of its employees and/or contractors who will have access to any Confidential
Information of Publisher have entered, or will enter, into a confidentiality
agreement no less restrictive than the terms of this Section 16.
17. Severability
In
the
event any portion of this Agreement is declared void by any court or tribunal
of
competent jurisdiction then, in that event, that portion shall be deemed severed
from this Agreement, and the remaining portions hereof shall remain in full
force and effect.
18. Assignment
Representative
may not assign this Agreement (including by operation of law) or any obligations
herein (including, but not limited to, hiring of non-employees and/or
sub-representatives) without the prior written consent of Publisher. Any
purported assignment without such written consent shall be unenforceable and
shall have no force or effect. The provisions of the Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, their heirs,
administrators, successors and assigns.
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19. Notices
All
notices and statements shall be in writing and shall, together with any
payments, be delivered personally by hand delivery or by United States Postal
Service, certified, return receipt requested, Federal Express or other
internationally recognized receipted overnight or courier service, postage
prepaid, or sent by a confirmed (confirmation report printed) facsimile
transmission with follow up copy sent by the aforesaid means (failure to send
follow up copy by other means shall be deemed failed delivery of notice), to
the
intended party at the address set forth at the beginning of this Agreement
(unless notification of a change of address is given in writing). Notice shall
be deemed delivered upon the date of personal delivery or facsimile transmission
or the date of delivery as indicated by Federal Express or other internationally
recognized receipted overnight or courier service, or the date indicated on
the
return receipt from the United States Postal Service.
20. Complete
Agreement
This
Agreement, together with the annexed Schedules constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all
previous proposals, both oral and written, negotiations, representations,
commitments, writings and all other communications between the parties. This
Agreement may not be modified except by a writing signed by a duly authorized
representative of each of the parties.
21. Force
Majeure
Publisher
shall not be liable or deemed to be in default for any delay or failure in
performance under this Agreement resulting directly or indirectly from acts
of
God, or any causes beyond the reasonable control of Publisher.
22. No
Waiver
Failure
by Publisher or Representative, in any one or more instances, to enforce any
of
its rights in connection with this Agreement, or to insist upon the strict
performance of the terms of this Agreement or its Schedules, shall not be
construed as a waiver or a relinquishment of any such rights for any other
breach or enforcement thereof.
23. Counterparts
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which shall constitute one and the same
instrument.
24. Governing
Law
This
Agreement and the Appendices shall be construed in accordance with the laws
of
the United States and the State of Virginia applicable to agreements executed
and wholly performed therein. The parties hereto agree that any dispute arising
out of or relating to this Agreement shall be instituted and prosecuted in
the
courts of competent jurisdiction of the State of Virginia located in Richmond,
VA and the parties hereto irrevocably submit to the jurisdiction of said courts
and waive any rights to object to or challenge the appropriateness of said
forums. Representative hereby agrees to accept service of process pursuant
to
the notice provisions hereunder and waives any and all objections to venue,
jurisdiction or service of process.
25. Remedies
Except
as
otherwise provided in this Agreement, all of Publisher's rights and remedies
herein or otherwise shall be cumulative and none of them shall be in limitation
of any other right or remedy in law and/or equity
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26. No
Offer
This
document shall not be deemed an offer and shall not be binding unless signed
by
a duly authorized representative or officer of Publisher and
Representative.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
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PUBLISHER
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REPRESENTATIVE
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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Duly
authorized for SouthPeak Interactive
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Duly
authorized for West Coast Sales
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Print
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Print
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Print
Title: Secretary / Treasurer
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Print
Title:
Partner
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SCHEDULE
A
“AUTHORIZED
PRODUCTS”
New
video
software products for:
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·
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Microsoft
Windows PC
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·
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Microsoft
XBOX
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·
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Microsoft
XBOX 360
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·
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Nintendo
Game Boy Advance
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·
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Nintendo
DS
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·
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Nintendo
GameCube
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·
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Sony
PlayStation (PSOne)
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·
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Sony
PlayStation 2
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·
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Sony
PlayStation 3
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Excludes
sales of “used”,
“customer
returns”
or “defectives”
to any accounts.
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SCHEDULE
B
“AUTHORIZED
TERRITORY”
NA
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SCHEDULE
C
“AUTHORIZED
ACCOUNT(S)”
▇▇▇▇▇▇.▇▇▇
Fry's
Electronics Inc.
GameFly
Game
Crazy
Hollywood
Entertainment
Nebraska
Furniture Mart
Pioneer
Distributors
Star
City
SMP
SVG
Distribution, Inc.
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of 10
Amendment
to Sales Representative Agreement between SouthPeak Interactive and West Coast
Sales
Please
replace Schedule C, “Authorized
Accounts”
In you original Sales Representative Agreement Dated July 21, 2006 with the
following
SCHEDULE
C
“AUTHORIZED
ACCOUNT(S)”
▇▇▇▇▇▇.▇▇▇
Fry's
Electronics Inc.
GameFly
Game
Crazy
Hollywood
Entertainment
Pioneer
Distributors
Star
City
SMP
SVG
Distribution, Inc.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
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PUBLISHER
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REPRESENTATIVE
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|||
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By:
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
|
Duly
authorized for SouthPeak Interactive
|
Duly
authorized for West Coast Sales
|
|||
|
Print
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
Print
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Print
Title: Secretary / Treasurer
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Print
Title:
Partner
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Amendment
to Sales Representative Agreement between SouthPeak Interactive and West
Coast
Sales
Please
replace Schedule C, “Authorized
Accounts”
In you original Sales Representative Agreement Dated July 21, 2006 with the
following
SCHEDULE
C
“AUTHORIZED
ACCOUNT(S)”
▇▇▇▇▇▇.▇▇▇
Fry's
Electronics Inc.
GameFly
Game
Crazy
Hollywood
Entertainment
Pioneer
Distributors
Star
City
SMP
SVG
Distribution, Inc.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
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PUBLISHER
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REPRESENTATIVE
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By:
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By:
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|||
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Duly
authorized for SouthPeak Interactive
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Duly
authorized for
|
|||
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Print
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Print
Name:
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|||
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Print
Title: Secretary / Treasurer
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Print
Title:
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