Manufacturer's Representative Agreement - Marketlink Technologies LLC and Mangosoft Inc.
MANUFACTURER'S REPRESENTATIVE AGREEMENT
BETWEEN
MARKETLINK TECHNOLOGIES, LLC
AND
MANGOSOFT, INC.
This Manufacturer's Representative Agreement (this "Agreement"), dated
as of the date specified on the signature page hereto, is made by and between
Marketlink Technologies, LLC (hereinafter referred to as "Marketlink"), with its
principal office located at: 24404 Catherine Road, Suite 300, Novi, MI 48375 and
MangoSoft, Inc. (hereinafter referred to as "Company"), with its principal
office located at 1500 West Park Drive, Suite 190, Westborough, MA 01581.
WHEREAS, Company desires to retain Marketlink, and Marketlink desires
to be retained as Company's sales representative for the products and
territories identified below, all on the terms and conditions set forth in this
agreement,
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, each of the parties hereto intending to be legally bound, it
is agreed as follows:
1. DEFINITIONS
A. "Products" shall mean the Company's products set forth on Exhibit A of
this Agreement.
B. "Territory" shall mean those geographical areas set forth in Exhibit B
of this Agreement.
C. "Customer" shall mean any traditional Reseller, VAR, System Integrator
or pre-approved distributor of Products in the Territory.
D. "House Accounts" shall mean those accounts in the Territory for which
sales are non-commissionable. Customers designated by Company as House
Accounts are listed in Exhibit C of this Agreement and may be added to
or modified from time to time by Company at its sole discretion. In the
event that a Customer is designated as a "House Account" subsequent to
the date hereof, commissions for all such Customers shall be payable to
Marketlink for sixty (60) calendar days following the "House Account"
designation in accordance with this Agreement.
E. "Net Invoice Price" shall mean the total price at which an order is
invoiced to the customer prior to any discount offered by Company in
compensation for early payment. Excluded from the net invoice price are
all shipping and mailing costs, duties, taxes, and insurance, and
related
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adjustments granted to the Customer by Company as shown on the face of
the invoice.
2. APPOINTMENT AND AUTHORITY OF MARKETLINK
A. Subject to the terms and conditions of this Agreement, Company appoints
Marketlink as its designated selling agent for the Products to
Customers in the Territory, and Marketlink accepts the appointment and
agrees to sell and promote the sale of the Products. Company agrees
that it shall not engage, designate or appoint any nationwide
manufacturer's representative organization other than Marketlink during
the term of this Agreement.
B. For sales to any Customer within the Territory, Company shall pay to
Marketlink a commission in accordance with Section 3 below.
C. Marketlink shall neither advertise the Products outside the Territory
nor solicit orders from outside the Territory without the prior written
consent of Company.
D. The relationship of Company and Marketlink established by this
Agreement is that of independent contractors, and nothing contained in
this Agreement shall be construed to (i) give either party the power to
direct and control the day-to- day activities of the other, (ii)
constitute the parties as partners, joint ventures, co-owners or
otherwise as participant in a joint undertaking, or (iii) allow
Marketlink to create or assume any obligation on behalf of Company for
any purpose whatsoever. All financial and other obligations associated
with Marketlink's business are the sole responsibility of Marketlink.
3. COMPENSATION
A. As full payment for any and all services rendered by Marketlink and in
consideration of the effort of Marketlink and all of the expenses
incurred by Marketlink, Company agrees to pay to Marketlink, and
Marketlink agrees to accept, commissions on sales of the Products to
Customers which shall be calculated as set forth in Exhibit D.
B. The commission shall apply to all orders, with the exceptions as
specified in Exhibit D, from all Customers in the Territory that have
been accepted by Company and which shipments have occurred.
C. In no case will any compensation paid to Company employees be deducted
from commissions due Marketlink.
D. Commissions will be paid on or before the 15th day of the following
month in which the Product was invoiced.
E. Company shall have the absolute right to chargeback commissions on all
shipments not paid by an authorized Customer over ninety (90) days past
the invoice date, provided Company re-credits Marketlink for the
appropriate commission applied to actual partial or full payments, less
fees incurred in the process of collecting the payments, subsequently
received from the authorized Customer.
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F. Company reserves the right to chargeback (debit) the full amount of
paid commissions on products returned by customer to Company for
credit.
G. PAYMENT: Payment of commissions shall be in United States dollars and
shall be subject to all applicable governmental regulations and
rulings, including the withholding of any taxes required by law.
H. MONTHLY STATEMENTS: Company shall submit to Marketlink monthly
statements of the commissions due and payable to Marketlink under the
terms of this Agreement, with reference to the specific Customers on
which the commissions are being paid.
4. SALE OF THE PRODUCTS
A. All sales shall be at prices and upon terms established by Company and
Company shall have the right to establish, change, alter, or amend
prices and other terms and conditions of sale in its sole discretion.
Marketlink shall not accept orders in Company's name, make price
quotations or delivery promises without Company's prior approval. To
the extent practicable and applicable, Marketlink shall cause each
Customer to execute the Company's standard form of Value Added Reseller
Agreement, a copy of which is attached hereto as Exhibit E. Marketlink
shall use its best efforts to protect and keep confidential the
Company's trade secrets, copyrights, patents, technology and know-how
associated with the Products.
B. All orders obtained by Marketlink shall be subject to acceptance by
Company at its principal office currently located at the address listed
for Company at the beginning of this Agreement, and all quotations by
Marketlink shall contain a statement to that effect. Marketlink shall
have no authority to make any acceptance/delivery commitments to any
Customers. Company shall send copies to Marketlink of any written
acceptances on commissionable orders. Marketlink shall provide the
Company with its web reporting software in accordance with Exhibit F
hereto.
C. Company shall have the sole right of credit approval or credit refusal
for Customers in all cases.
D. Company shall render all invoices directly to the Customers. Invoice
payments shall be made directly to Company by Customers.
E. It is expressly understood by Marketlink that full responsibility for
all collection rests with Company.
F. Company shall furnish Marketlink, at no expense to Marketlink, samples,
catalogues, literature and any other material necessary for the proper
promotion and sales of its products in the territory.
G. Company agrees to provide Marketlink with no-value samples of the
Products as reasonably requested by Marketlink.
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5. PRODUCT WARRANTY AND PRODUCT AVAILABILITY
A. Any warranty for the Products shall run directly from Company to the
Customer, and pursuant to the warranty the Customer shall return any
allegedly defective Products to Company or designated depot. Marketlink
shall have no authority or responsibility to accept any returned
Products.
B. Under no circumstances shall Company be responsible to Marketlink or
any other party for its failure to fill accepted orders, or for its
delay in filling accepted orders, when such failure or delay is due to
any cause beyond Company's reasonable control.
6. MARKETLINK'S RELATIONSHIP AND CONDUCT OF BUSINESS
A. Marketlink shall maintain sales offices in its assigned Territory and
shall use its best efforts and devote such time as may be reasonably
necessary to sell and promote the sale of Company's Products within the
Territory.
B. Marketlink will conduct all of its business in its own name and in such
manner as it may see fit. Marketlink will pay all expenses of its
office and activities and be responsible for the acts and expenses of
its employees. It will be Company's responsibility to provide resellers
with more extensive technical training seminars, technical written
support materials, and a reseller technical support hot line to explain
to Customer's sales staff differences between Company products and
competitive products. Company agrees to train and educate Marketlink's
customer service personnel to the extent necessary to effect the
purposes of the Agreement.
C. Marketlink shall not, without Company's prior written approval, alter,
enlarge, or limit orders, make representations or guarantees concerning
Company's Products or accept the return of, or make any allowance for
such Products.
D. Marketlink agrees that, during the term of this Agreement, it will not
promote or offer to sell any goods which are competitive with or
substantially similar to the Products listed in Exhibit A unless agreed
upon beforehand, in writing, by both parties.
7. USE OF TRADEMARKS AND TRADENAMES
Marketlink recognizes and concedes for all purposes that all trademarks,
trade names, or identifying slogans affixed to the Products or any
accompanying labels, containers, and cartons, whether or not registered,
constitute the exclusive property of Company and cannot be used except in
connection with promoting and selling Products. During the term of this
Agreement, Marketlink is authorized by Company to use Company's trademarks
and logo in connection with Marketlink's promotion of Company products and
public relations announcements, provided that Marketlink's use of such
trademarks and logo shall be in accordance with Company's policies from time
to time communicated to Marketlink. Marketlink shall have no interest in
such trademarks or logo except
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as herein expressly provided, and Marketlink's use of such trademark and
logo shall cease immediately upon termination or expiration of this
Agreement.
8. INDEMNIFICATION
A. Company shall be solely responsible for the design, development,
supply, production, and performance of its Products and the protection
of its tradenames. Company agrees to indemnify and hold Marketlink
harmless against and to pay all losses, costs, damages and expenses
whatsoever, including reasonable attorney fees, which Marketlink may
sustain or incur on account of infringement or alleged infringement of
patents, trademarks, or tradenames, resulting from the sale of
Company's Products, or arising on account of warranty claims or product
liability matters. Marketlink will promptly deliver to Company any
notices or papers served upon it in any proceeding covered by this
indemnity, and Company will defend same at its expense. Marketlink
shall, however, have the right to participate in the defense at its own
expense.
B. Marketlink shall be solely responsible for, and shall indemnify and
hold Company free and harmless from, any and all claims, damages or
lawsuits (including Company's attorney's fees) arising out of the acts
of Marketlink, its employees or its agents. Company will promptly
deliver to Marketlink any papers served upon it in any proceeding
covered by this indemnity, and Marketlink will defend same at its
expense. Company shall, however, have the right to participate in the
defense at its own expense.
9. TERMINATION
A. This Agreement shall be effective on the day of August 1, 2000, and
shall continue until July 31, 2001. It shall automatically be renewed
from year to year thereafter unless terminated by either party upon
ninety (90) days written notice to the other by registered or certified
mail prior to the end of the initial term of this Agreement, or any
renewal term.
B. Termination for Convenience: This Agreement may be terminated by either
party for any reason at any time by giving the other party written
notice ninety (90) days in advance. After the first year of service, if
Company terminates Marketlink under this clause Marketlink will be
entitled to a termination settlement of one month's compensation beyond
90 days period (based on the average monthly commission of the twelve
full months prior to the termination notice plus any applicable
retainer) for each year or fraction thereof of representing Company.
C. Termination for Cause: If either party defaults in the performance of
any provision of this Agreement, then the non-defaulting party may give
written notice to the defaulting party that if the default is not cured
within thirty (30) days, this Agreement will be terminated. If the
default is not cured in the good faith judgment of the party providing
such notice, this Agreement shall automatically terminate at the end of
that period. In
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addition, within three (3) months of the date hereof, the parties
hereto shall amend this Agreement by adding an Exhibit G hereto, such
exhibit to specify a mutually agreed upon revenue forecast in respect
of the sales by Marketlink to Customers for the remainder of the
initial one-year term of this Agreement. If, after the execution of
such amendment (or any subsequently agreed upon revenue forecast),
Marketlink is unable to meet the revenue targets specified in such
Exhibit G, the Company may terminate this Agreement upon thirty (30)
days' written notice to Marketlink. The parties hereto shall
subsequently amend such Exhibit G prior to the anniversary of the date
hereof (and each succeeding anniversary thereafter).
D. Termination for Insolvency: This Agreement shall terminate, without
notice, (a) upon the institution by or against either party for
insolvency, receivership or bankruptcy proceedings, (b) upon Marketlink
making an assignment for the benefit of creditors, or (c) upon
Marketlink dissolution.
E. Sale of company's business: In the event Company sells or otherwise
disposes of its stock or assets, or merges or reorganizes Company in a
manner which affects the production or sale of the Products being
promoted and sold by Marketlink, or in the event Company changes the
legal structure of its business entity, Company shall pay Marketlink
commissions for all orders booked through the end of the notice period
as provided in this Agreement, regardless of whether or when shipped by
Company or its successor or acquirer.
10. RIGHTS UPON TERMINATION
Upon termination of this agreement for any reason, Marketlink shall be
entitled to:
A. Commissions on all orders calling for shipment to Customers into
Marketlink's Territory which are dated or communicated to Company prior
to the effective date of termination, regardless of when such orders
are shipped.
B. Any partial termination of territory or products will be subject to the
same terms and conditions as if the entire agreement were terminated.
11. GENERAL
This Agreement constitutes the entire understanding of the parties; shall
supersede any other oral or written agreements; and shall be binding upon and
inure to the benefit of the parties' successors and assigns. It may not be
modified in any way without the written consent of both parties. Marketlink
shall not have the right to assign this agreement in whole or in part without
Company's written consent.
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12. CHOICE OF LAWS
This Agreement shall be interpreted according to the laws of the State of
Michigan without reference to its rules regarding conflicts of laws.
13. DISPUTES
Each of the parties hereto irrevocably consents to the exclusive
jurisdiction of the courts of the State of Michigan, and of any federal
court located in the State of Michigan, in connection with any action or
proceeding arising out of or relating to, or a breach of, this Agreement, or
any document or instrument delivered in connection with this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Manufacturer's
Representative Agreement as of the date specified below.
MANGOSOFT, INC. MARKETLINK TECHNOLOGIES, LLC
By:/s/ Robert E. Parsons By:/s/ Daniel Dempsey
------------------------------ ------------------------------
Print name: Robert E. Parsons Print name: Daniel Dempsey
Title: VP, CFO Title: President
Date: July 5, 2000
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EXHIBIT A
PRODUCTS
CacheLink and any successor versions of such software.
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EXHIBIT B
TERRITORY
Marketlink's normal sales coverage territory is the entire United States of
America
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EXHIBIT C
HOUSE ACCOUNTS
Ramp Networks
3100 De La Cruz Boulevard
Santa Clara, CA 95054
Intel
2200 Mission College Boulevard
Santa Clara, CA 95052
US Online
25 N. Wenatchee Avenue
Suite 207B
Wenatchee, WA 98801
3Com Corporation
5400 Bayfront Plaza
Santa Clara, CA 95052-8145
Hewlett Packard Corporation
3000 Hanover Street
Palo Alto, CA 94304-1185
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EXHIBIT D
COMMISSIONS
Marketlink shall be entitled to receive commissions on all Products sold to
Customers in the Territory, excluding sales made to House Accounts. 100% of
commissions for commissionable sales to Customers shall be earned when the
Product is shipped and invoiced by Company.
Marketlink shall receive a commission equal to 5% of net sales to Customers.
In addition, Company agrees to pay a baseline sales retainer of $55,000 per
month. The sales retainer amount is due and payable on the 15th of the month
invoiced. Based on a August 1, 2000 launch, the first payment would be due
August 15, 2000.
From time to time during the term of this Agreement, Company may agree to
provide bonuses to Marketlink for sales of Products to designated accounts
or for achieving predetermined sales targets by region. The sales targets in
respect of such bonuses shall be agreed upon in writing in advance by the
Company and Marketlink. When Marketlink earns such bonuses, bonuses will be
paid at the time of payment of usual commissions for the Products sold.
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EXHIBIT E
Form of Value Added Reseller Agreement
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EXHIBIT F
WEB REPORTING SOFTWARE
Marketlink has developed a web-based reporting system that allows the
individual sales people to provide timely feedback to the Marketlink
manufacturers. Marketlink shall provide this reporting system to the Company
at no additional cost.