Exhibit 10.4
REPRESENTATION
AGREEMENT
1.
(a)
You, Encision Inc.,
(“ECI” or “You”) are hereby appointed as a
representative of Caldera Medical, Inc.
(“Caldera” or “We”) under the terms of this
agreement (“Agreement”), effective April 1, 2009
(“Effective Date”), for the solicitation of orders for
the products listed on Exhibit 2 .
(b)
Your account list (“ECI Target
Accounts”) will be subject to approval by Caldera management.
You will limit all your activities under this Agreement solely to
ECI Target Accounts and ECI Target accounts that become customers
(“ECI Customers”). You will immediately direct
all inquiries you receive from outside your account list to
Caldera.
(c)
Your ECI Target Accounts are subject
to change with written approval from Caldera, pursuant to the terms
in paragraph 8 of this Agreement. At any given time, no more
than five ECI Target Accounts shall be in effect per ECI sales
rep. When an ECI Target Account becomes an ECI Customer, you
will have the opportunity to add a Target Account such that you
maintain up to five Target Accounts per ECI sales rep.
Facilities that are eligible to become ECI Target Accounts are any
accounts that have not purchased Caldera products within the most
recent 12 consecutive months before being added to the ECI Target
Accounts list.
(d)
The term of this Agreement will be
three years from April 1, 2009.
2.
(a)
You agree to provide all required
in-service and customer service as needed, as generally described
on Exhibit 4 . You do not have any obligation for
warranty work, installation, or customer training beyond that
described in Exhibit 4 .
(b)
We reserve the right to accept or
reject any orders solicited or obtained by you.
(c)
We will be responsible for
manufacturing, branding, regulatory affairs, quality, order
administration/fulfillment, “train the trainer”
activities, invoicing, collections (although ECI will provide
assistance with collections matters), tax calculations for amounts
owed by customers and tax remittances of such amounts.
3.
(a)
We will provide you sample products
and sales promotion materials that will be distributed and
monitored. To the extent samples and materials have been provided
on a no charge basis, they remain our property and you agree to
return them on demand, or in any event upon termination of this
Agreement by either party. In the event you may lose any samples,
or fail to return any of them to us on demand, you will be charged
for them at a fair price determined by the age and condition of the
items. You agree not to rent, lease, or sell any samples on your
own without written authorization from Caldera.
(b)
Caldera personnel may conduct an
inventory of samples at any reasonable time upon reasonable notice.
Unaccounted for samples will be your financial responsibility.
Caldera may require direct payment or deduct appropriate amounts
from commission otherwise payable to you.
|
|
ECI Initials
|
|
|
|
CMI Initials
|
|
1
(c)
Your signature on this Agreement
constitutes your written authorization for Caldera to deduct the
amounts in paragraph (b) from your commission, including from
commissions already earned, but not paid. Caldera may
withhold amounts Caldera has a reasonable belief are owing under
paragraph (b)), and will pay over the withheld amounts only after
the physical inventory has been completed and any necessary
reconciliation has been accomplished to Caldera’s reasonable
satisfaction. Caldera will act in a timely fashion to
complete the physical inventory and resolve the
reconciliation.
4.
(a)
Commissions will be paid to you on
all sales to ECI Target Accounts and ECI Customers
(“Qualifying Sales”) which are accepted and fulfilled
by Caldera. The commission schedule is set forth on
Exhibit 1.
(b)
Commissions are payable to you by
the end of the month following the month in which the shipment
occurred. Your account will be charged back for any commissions
paid on products that are returned by the customer, unless the
customer receives credit on the returned products that may be used
for products that you do not receive a commission on. It will also
be charged back for products that are not paid for by the customer
within one hundred twenty (120) days after shipment. In the event
that the customer makes payment after the one hundred twenty (120)
days after shipment, then that commission will be payable to you.
Your assistance in collecting outstanding accounts receivable will
be required as requested by Caldera. This does not require
you to sue the customer. Caldera has the primary responsibility to
collect accounts receivable.
5.
You agree to pay all of your own
expenses in connection with your solicitation and obtaining of
orders.
6
You agree that you are an
independent contractor and not an employee of Caldera and that you
have no authority to make any warranties, representations, or
contractual commitments on our behalf.
7.
(a)
You agree that, during the term of
the Agreement, neither you nor anyone employed by you or otherwise
affiliated with your business and under your control, will,
directly, or indirectly, handle any products that are competitive
to those listed on Exhibit 2 . If you have a
question as to whether a product is competitive, you may ask
Caldera and Caldera will respond within 60 days as to whether or
not it believes the product is competitive.
(b)
All know-how relating to our
business and to your activities in performance of this Agreement
are to be treated as confidential and proprietary information of
Caldera and you will use your best efforts to safeguard disclosure
by you of confidential information of Caldera given to you by
Caldera regarding the patents, copyrights, trademarks, trade
secrets and other proprietary information of Caldera.
(c)
You recognize and acknowledge that
all knowledge and information which you may acquire in the course
of your relationship hereunder relating to the business,
developments, activities, or products of Caldera, or financial
affairs of any individual or firm doing business with Caldera, such
as, but not limited to, customer and supplier
|
|
ECI Initials
|
|
|
|
CMI Initials
|
|
2
lists, cost and selling prices,
customer needs and requirements, confidential data regarding
marketing sources and product designs, and other information,
ideas, discoveries, operations, developments, improvements, designs
and processes so acquired are the valuable property of Caldera and
shall be held by you in confidence and trust for the sole benefit
of Caldera.
(d)
You agree not to disclose, divulge,
or publish without the prior written consent of Caldera, either
during the term of the Agreement or at any time subsequent thereto,
knowledge of any confidential information concerning Caldera
business about which you become aware in the course of our
relationship under this Agreement. You will take all appropriate
steps to safeguard against improper disclosure of Confidential
Information by you. As requested by Caldera from time to time
and upon the termination of this Agreement, you shall promptly
deliver all copies and embodiments, in whatever form, of all
Confidential Information in your possession or within your control
(including, without limitation, written records, notes,
photographs, manuals, notebooks, documentation, magnetic media,
disks, diskettes, tapes and all other materials containing
any Confidential Information) regardless of the location or form of
such material and, will provide Caldera with written confirmation
that all such materials have been delivered to Caldera.
You may retain one copy of the Confidential
Information in a secure and safe place as necessary for your
business recordkeeping requirements or for potential or actual
legal defense or prosecution purposes. For the purposes hereof,
“Confidential Information” means information that is
not generally known to the public and that is used, developed or
obtained by Caldera regarding its products and the conduct of its
business, including, but not limited to, fee, cost and pricing
structures; profit margin information; product information; medical
analyses; reports; studies; third party manufacturing and licensing
agreements; manuals and documentation; accounting and business
methods; the identity and information concerning distributors,
representatives, customers and suppliers (prospective and
existing); and any and all similar and related information in
whatever form. Confidential Information does not include any
information that has been published in a form generally available
to the public prior to the date you propose to disclose or use such
information (unless such publication constituted a breach by you of
its duties hereunder). Information will not be deemed to have
been published merely because individ
