VIEWS: 7,463 PAGES: 16 CATEGORY: Independent Contractor Forms and Agreements POSTED ON: 3/16/2010
This agreement is between a company and an independent sales representative that outlines the terms of engagement of the representative to solicit orders on behalf of the company. This document in its draft form contains numerous of the standard clauses commonly used in these types of agreements, as well as optional language allowing for customization to ensure the specific terms of the parties' agreement are addressed. Use this form if one is a company wishing to engage the services of an independent sales representative to solicit orders for a company.
This agreement is between a company and an independent sales representative that outlines the terms of engagement of the representative to solicit orders on behalf of the company. This document in its draft form contains numerous of the standard clauses commonly used in these types of agreements, as well as optional language allowing for customization to ensure the specific terms of the parties' agreement are addressed. Use this form if one is a company wishing to engage the services of an independent sales representative to solicit orders for a company. INDEPENDENT SALES REPRESENTATIVE AGREEMENT This Independent Sales Representative Agreement (hereinafter “the Agreement” is entered into and effective as of [insert date] by and between by and between the following parties: [Insert Name of Company] (hereinafter “Company”) with a principal business address of _________________________; and [Insert Name of Sales Representative] (hereinafter “Representative”) with a principal business address of _______________________ _______ ____,collectively referred to as the “Parties”. RECITALS A. Whereas, Company is engaged in the business of [describe the business i.e. marketing/production/manufacturing, etc.] (hereinafter referred to as the “Product”) in the United States. B. Whereas, Company desires to obtain the services of Representative to promote and solicit sales of the product, and Representative hereby desires to provide such services to the Company in accordance with the terms, conditions and covenants set forth in this Agreement. Now therefore, in consideration of the mutual covenants and undertakings as set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and Representative agree as follows: I. ENGAGEMENT AND ACCEPTANCE Subject to the terms and conditions contained herein, the Company hereby appoints Representative, and Representative hereby accepts such appointment, as its [non-exclusive / exclusive] independent sales representatives to promote and solicit orders for the product. II. SERVICES The Representative shall perform services, as described in Exhibit “A” (herein referred to as “Services”) III. TERM AND TERMINATION 3.1 This Agreement shall commence on the Effective Date and continue for a period of one (1) year and shall automatically extend for successive one (1) year periods, unless either party gives written notice of non renewal to the other. 3.2 This Agreement may be terminated for convenience, by either party at any time, upon _____________ (___) day’s written notice to the other party. If this Agreement is terminated for convenience, Company shall pay the Representative any unpaid commission due under this Agreement. 3.3 Company may terminate this Agreement for cause immediately upon notice to the Representative, without any liability to Representative or any third party: A. If the Representative fails to perform or materially breaches any provision of this Agreement, and such failure continues uncured for a period of thirty (30) days after the date of notice to Representative from Company identifying the breach; B. If Company reasonably suspects fraud or material misrepresentation by Representative or any actual or potential third party customer; C. If any event of insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver with respect to Representative has occurred; D. If by any governmental prohibition or required alteration of the Company Services to be provided hereunder; E. If any violation of an applicable law, rule or regulation by Representative has occurred; or, F. If Representative is unable, by reason of illness or disability of any of its employees, to perform any of its responsibilities hereunder. 3.4 If this Agreement is terminated for cause, then Representative shall not receive any further commission from the Company. 3.5 At the termination of this Agreement, Representative shall cease using any sales materials and product samples in its possession or control and shall return all the property of the Company, immediately upon our request. IV. TERRITORY 4.1 Representative shall have the exclusive right to solicit orders for the Product in the geographic territory as mentioned in Exhibit "A" (hereinafter called "the Territory"). Representative shall not solicit orders for Company Products in any other geographic territory outside the Territory. The Company shall have the right, at any time, in its sole discretion, to modify or limit the scope of the Territory. 4.2 Representative acknowledges and agrees that it neither has, nor will acquire, any vested or proprietary right or interest with respect to the Territory, any Company customers in the Territory, or any Company customer lists. Representative further acknowledges and agrees that any goodwill accruing in the Territory during the term of this Agreement with respect to the Company or Company Products shall be considered the property of the Company rather than Representative. V. INDEPENDENT CONTRACTOR Representative is hereby appointed as an independent contractor and not as an employee of the Company. As an independent contractor, Representative shall be solely responsible to pay all © Docstoc®, Inc. 2011 – All Rights Reserved applicable taxes, including, but not limited to, social security, self-employment taxes and disability insurance. Neither the Representative nor its employees shall be entitled to participate in any Company plans, arrangements or distributions pertaining to any pension, stock, bonus, profit sharing or similar benefits. VI. REPORTING Representative shall report to an officer designated by the Company. Representative shall provide a weekly written summary report to the Company on his or her progress on assignments. VII. INDEMNIFICATION 7.1 Company shall indemnify, hold harmless and, at no expense to Representative, defend Representative and Representative’s affiliates (if any), and its and their respective directors, officers, employees, and authorized agents and other representatives (each a “Representative Indemnified Party”) from and against any and all third-party claims, demands, actions, suits, proceedings, damages, liabilities, losses, fines, penalties, judgments, awards, settlements, costs and expenses (including attorneys’ fees and costs) (collectively, “Third-Party Claims”), arising from, or related in any manner whatsoever to: i. any actual or alleged breach of this Agreement, or violation of applicable law, by Company; ii. any actual or alleged infringement or other violation of a third-party’s intellectual property rights by Company; or iii. any material defect in the Product. 7.2 Representative shall indemnify, hold harmless and, at no expense to Company, defend Company and its affiliates (if any), and its and their respective directors, officers, employees, and authorized agents and other representatives (each a “Company Indemnified Party”) from and against any and all third-party claims, demands, actions, suits, proceedings, damages, liabilities, losses, fines, penalties, judgments, awards, settlements, costs and expenses (including attorneys’ fees and court) (collectively, “Third-Party Claims arising from, or related in any manner whatsoever to: i. any actual or alleged breach of this Agreement: ii. any actual or alleged infringement or other violation of a third-party’s intellectual property rights by Representative. 7.3 The right of either party (“Indemnified Party”) to indemnification and/or a defense (collectively, “Indemnity”) hereunder by the other Party (“Indemnifying Party”) shall be conditioned on the following: [Tip: Docstoc has several resources available regarding detailed Indemnification Agreements including plug-in provisions that can that can be used in conjunction with this Agreement]. i. The Indemnified Party must give the Indemnifying Party prompt written notice of the Third-Party Claim, for which it is seeking Indemnity, although the Indemnified Party’s failure to provide such prompt notice will not relieve the Indemnifying Party of any obligation or liability under this Section except to the extent the Indemnifying Party has been materially prejudiced by such failure; © Docstoc®, Inc. 2011 – All Rights Reserved ii. The Indemnifying Party shall have sole control of the defense and any settlement or other resolution of such Third-Party Claim with legal counsel of the Indemnifying Party’s choice, so long as the representation is zealous, legal counsel is reputable, there is no conflict of interest in representing the Indemnified Party, and the Indemnified Party is recognized as the client of legal counsel; iii. The Indemnified Party shall at all times fully cooperate with, and at the Indemnifying Party’s expense, provide such assistance as reasonably requested by the Indemnifying Party, in connection with any investigation or defense of such Third-Party Claim; and iv. The Indemnified Party shall not enter into any settlement, compromise or other resolution of such Third-Party Claim, without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld or delayed. 7.4 Notwithstanding anything to the contrary herein, no compromise or settlement of any such Third-Party Claim may be committed to by the Indemnifying Party without the Indemnified Party’s prior written consent, unless: i. it includes a full discharge and release of liability for the Indemnified Party; and ii. it involves no admission or commitment by or on behalf of the Indemnified Party other than the payment of money to be fully indemnified hereunder by the Indemnifying Party. 7.5 As used herein, “affiliate” means any and all parties, who directly, or indirectly through one (1) or more intermediaries, control, are controlled by, or are in common control with, either party hereto. 7.6 Representative shall indemnify and hold the Company, its employees and representatives harmless from any loss, damage, expenses or liability, including, without limitation, court fees, arising out of fraud, material misrepresentation, negligence, intentional misconduct or violation of any requirements imposed by any applicable federal or state law by the Representative under this Agreement. VIII. EXPENSES Representative agrees to bear all expenses incurred relating to the services hereunder, except those which the Company agrees to pay for in writing. IX. AUTHORITY Each person signing warrants and represents that he or she has full authority to enter into this Agreement, and that all representations and warranties in this Agreement, are true and correct. X. REPRESENTATION AND WARRANTIES 10.1 Representative warrants and represent to the Company that it is free to enter into this Agreement and that this does not violate any agreement heretofore made by the Representative. © Docstoc®, Inc. 2011 – All Rights Reserved 10.2 Representative warrants and agrees that upon Company’s request, Representative will assist the Company in all collection efforts from non-paying customers in the territory. 10.3 Representative at no time shall engage in any unfair trade practices with respect to the Company or the Products, and shall make no false or misleading representations with respect to the Company or the Products. Representative shall refrain from communicating any information with respect to guarantees or warranties regarding the Products, except such as are expressly authorized by the Company or are set forth in the Company's literature or other promotional materials. 10.4 Company warrants that the Product manufactured and to be promoted and sold by Representative is free from substantive defects in workmanship and materials. Company warrants that the Product is now free from any security interest or other lien or encumbrance, that it shall be free from same at the time of delivery, and that it neither knows nor has reason to know of any outstanding title or claim of title hostile to its rights in the Product. XI. COMPANY RIGHTS 11.1 In addition to any other rights, Company may exercise the following: A. Company may reject an order from a prospective customer at any time for any reason; B. The Company has the sole right to establish, alter or amend product specifications, prices, delivery schedules and discounts, and the Company will give Representative timely notice of any and all changes; and C. Company may at its sole discretion, enter into arrangements of any kind whatsoever with others regarding marketing the Products of the Company to any entity. XII. COMMISSION 12.1 The Company shall pay to Representative a commission of ____________% of net sales of Products made by Representative in the Territory. 12.2 Net sales shall mean the payments for the Product actually received by the Company pursuant to orders solicited by Representative in the territory less freight, insurance, allowances, discounts, returns and charge-backs. 12.3 The Company shall pay a split commission for any accepted orders taken from a customer in the territory but shipped to an affiliate, subsidiary or designee of said customer in another sales representative's territory. In addition, Representative shall receive a split commission for any accepted orders taken from a customer in another sales representative's territory but shipped into Representative’s territory. The Company reserves the right to allocate or split the commission in a manner it deems most reasonable to best reward the sales representative who had greatest influence on the sale. © Docstoc®, Inc. 2011 – All Rights Reserved 12.4 The Company shall furnish Representative with copies of all invoices for shipments of the Product into the territory. Representative shall keep an accurate set of books and records regarding commissions due. Commission statements and payments shall be sent to the Representative no later than the Twentieth (20th) day of the month. Commission statements presented to Representative shall be deemed correct unless objections in writing are received by the Company within Thirty (30) days from the issuance of same. XIII. ASSIGNMENT Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, except Representative may assign or transfer its rights to receive payments herender. XIV. SUB-CONTRACTORS OR EMPLOYEES Representative shall notify the Company of all employees who shall assist the representative in representing the Company's products. With Company’s prior written approval, Representative may employ such employees. Representative shall be solely responsible for full payment of wages and other compensation to all employees engaged by it in the performance of this Agreement, and for full compliance with all laws, rules and regulations. Any employees hired by Representative shall be at Representative’s own risk. The employees shall be under the exclusive and complete supervision and control of Representative and not of the Company. Representative shall ensure that each employee complies fully with Representative’s obligations hereunder. XV. INTELLECTUAL PROPERTY 15.1 The Company retains all rights, ownership, and interest in the Product and any sales, marketing and promotional materials, and in any copyright, trademark, or other intellectual property proprietary to them, including without limitation any such intellectual property in or a part thereof. 15.2 Nothing in this Agreement shall be construed to grant to Representative any rights, ownership or interest in the Product or any sales, marketing and promotional materials, or in Company’s copyrighted material, trademark(s), or other intellectual property, other than those express and specific rights granted under this Agreement. 15.3 Representative shall not directly or indirectly use the Company’s trademarks, trade names or any part thereof, or any mark or name confusingly similar thereto, as part of its corporate or business name or in any other manner, except that (a) the representative may identify itself as an authorized sales representative of the Product, and (b) on use the Company’s trademarks relating to the Product in connection with solicitation of orders for the Product. 15.4 Representative agrees to cooperate with and assist Company at the Company’s expense, in the protection of its trademarks, patents, or copyrights owned by or licensed to the Company and shall inform Company immediately of any infringements or other improper action with © Docstoc®, Inc. 2011 – All Rights Reserved respect to such trademarks, patents, or copyrights that shall come to the attention of Representative. XVI. NON-COMPETE For the Term of this Agreement and for a period of two (2) years after termination, Representative, and its employees shall not directly or indirectly sell, promote or offer for sale, any product which might in any way be deemed competitive to Company’s products. XVII. CONFIDENTIALITY [Tip: Docstoc has several resources available regarding detailed Confidentiality Agreements that can that can be used in conjunction with this Agreement]. 17.1 "Confidential Information" shall mean any information which the disclosing Party considers proprietary or confidential and identifies in writing or orally to be confidential or proprietary, but shall not include (i) information which at the time of disclosure was already in the public domain; (ii) information which subsequent to disclosure is made public through no fault of the receiving Party; (iii) information which was lawfully in its possession prior to disclosure, or independently developed by it without access to or use of any of the disclosing Party's confidential information, or (iv) information lawfully received from a third party who was not subject to confidentiality obligations with respect to such information. 17.2 Each Party will safeguard and prevent the disclosure to any third party the Confidential Information of the other, exercising a standard of care not less than that used by the receiving Party to protect its own confidential information. Each Party shall, upon the request of the other party or upon the termination or expiration of this Agreement, return or destroy all tangible copies of any Confidential Information of the other Party in its possession, and shall further delete or destroy any copies of such Confidential Information stored in any computer memory or electronic storage device. The requirements of this section will survive the termination or expiration of this Agreement. XVIII. LIMITATION OF LIABILITY 18.1 EXCEPT AS PROVIDED HEREIN, IN NO EVENT WILL EITHER PARTY, OR ITS AFFILIATES, INDEPENDENT CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD- PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOST BUSINESS OPPORTUNITY) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE BY REASON OF ITS HAVING ENTERED INTO OR RELIED ON THIS AGREEMENT, OR ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT, EVEN IF THE PARTY TO BE CHARGED WAS ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION WILL APPLY REGARDLESS OF THE FORM OF THE CLAIM(S), IN WHICH SUCH LIABILITY MAY BE ASSERTED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. © Docstoc®, Inc. 2011 – All Rights Reserved 18.2 THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION SHALL NOT APPLY TO, NOR LIMIT THE LIABILITY OF A PARTY OR ITS AFFILIATES, FOR: (I) A MATERIAL BREACH OF THIS AGREEMENT, (II) ITS INDEMNIFICATION, DEFENSE AND HOLD HARMLESS OBLIGATIONS, OR (III) ANY GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR INTENTIONAL MISCONDUCT. 18.3 THE LIMITATIONS ON DAMAGES SET FORTH IN THIS ARTICLE SHALL NOT APPLY TO, NOR LIMIT THE LIABILITY OF A PARTY OR ITS AFFILIATES FOR: (I) A MATERIAL BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) ITS INDEMNIFICATION, DEFENSE AND HOLD HARMLESS OBLIGATIONS OR (III) ANY GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR INTENTIONAL MISCONDUCT. XIX. GENERAL 19.1 Successors and Assigns The Parties agree that this Agreement shall be binding upon each of its successors and assigns and that this Agreement may not be assigned to any other third party, without the written consent of Company, which shall not be unreasonably withheld. 19.2 Amendments No modification, supplement, termination, extension, waiver or amendment to or of this Agreement (or any attachments or exhibits) or any of its provisions may be made, and any attempts, shall not be binding unless agreed to by the Parties in writing, by pen on paper, by duly authorized representatives of the Parties. There shall be no oral agreements. Electronic writings, including E-mail messages, text messages, tweets, instant messages, etc., their contents, and any attachments, and any prior or subsequent communications including oral discussions or negotiations concerning some or all of the Agreement, or anything at all, are not intended to represent and do not reflect an offer or acceptance to enter into (or amend, modify, revise, terminate, abrogate, extend, waive a breach or damages of, etc.) a binding contract, transaction or agreement, and are not intended to and do not bind any party to this Agreement. The Parties may determine that they wish to attempt to negotiate a written agreement that is binding that amends, modifies, revises, terminates, abrogates, extends, waives a breach or damages of, this Agreement , however, the Parties intend and will continue to intend that there shall be no contract formations, waivers, modifications, abrogations, extensions, amendments, etc., without one or more formal written documents executed non electronically but with holographic signatures by hand with ink pen on paper signed by a duly authorized representative of each of the Parties (aka “wet signatures” or “pen on paper signatures”). Any communication to the contrary in the past, now or future, is not binding on any party to this Agreement. Absent the written express statement to the contrary as set out below, it is the intention of the Parties, and the Parties agree not to conduct any contract formation, modifying transaction, amend any agreement, abrogate any agreement, grant any extension, or waive any right by electronic writing. Any alleged communication to the contrary is not binding on any party. The written express statement mentioned above ("electronic express statement") shall be the following, or that which expresses the same intent as the following: “I expressly intend that this shall constitute an electronic signature to a writing thereby [forming, modifying, amending, abrogating, granting an extension in relations to, or waiving a breach to] a binding [contract or © Docstoc®, Inc. 2011 – All Rights Reserved agreement].” For purposes of any agreement, a formal written document on paper with wet signatures (pen on paper signatures) and otherwise consistent with the requirements herein, which is transmitted by facsimile, the internet, or any cell/wireless/mobile telephone system, or the like, as an image or .pdf document is valid when signed by pen on paper by all Parties to be charged. The Parties expressly state and intend that Emails / texts / tweets / instant messages, etc., sent or received - even when there are multiples or combinations of these - do not include all of the essential or material terms required in order for there to be a legally binding agreement or contract between the Parties, and are ineffective for purposes of contract formation, modification, amendment, waiver, etc., without the electronic express statement mentioned above. No addition to or modification or consensual cancellation of this agreement, notice or statement shall be binding unless made in one or more formal written documents consistent with the pen on paper or "electronic express statement" requirements herein. Any purported communication to the contrary is not binding. 19.3 Waiver No waiver of any breach of any provision of this agreement, notice or statement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and wet signed by pen on paper or electronic express statement as set out herein. [Tip: If you wish to allow emails that reflect some formality, and that you have given adequate and due consideration to the matter, to be used for amendments, for example, to add to a schedule of deliverables, this version of the document does allow formal emails with special language in them to be used. Therefore if you do not wish to allow that, and only wish for there to be signatures by pen on paper you may wish to edit this document by removing the portions in this section that are highlighted in gray. If you allow this you will want to remove the gray highlight from the final version of the Agreement before you print it. And then you will want to delete this note.] 19.4 Notices Any notice required, permitted to be given, or otherwise given hereunder may be effectively given by letter delivered either by personal delivery, registered mail certified return receipt requested, postage prepaid, or delivered by overnight delivery service, or by facsimile machine upon receipt from the sender of a confirmation of receipt, or by other electronic means so long as the recipient has acknowledged receipt (for purposes of this section an automatically generated receipt confirmation does *not* qualify as acknowledgement of receipt), addressed to the recipient as follows: In the case of Company: Company Attn: _____________ Tel: __________________ Fax: __________________ Email: _______________________ © Docstoc®, Inc. 2011 – All Rights Reserved In the case of Representative: Representative Attn: _____________ Tel: __________________ Fax: __________________ Email: _______________________ 19.5 Governing Law This Agreement shall be governed by and construed in all respects in accordance with the laws of the State of ___________________ as they apply to agreements entered into and to be performed by the Parties herein. 19.6 Venue The Parties further agree that venue of any legal action or claim hereunder shall be exclusively in and with a court having jurisdiction over __________ County, __________ , if disputes are to be resolved in Court, if at all, as set out below, or where arbitration or mediation is to occur, if at all, as set out below. The Parties further agree and hereby consent to, and waive all defences of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the State of ________ and _________County. Notwithstanding the foregoing either party may seek equitable, preliminary, or permanent injunctive relief from any court of competent jurisdiction, which rights and remedies shall be cumulative and in addition to any other rights or remedies at law or in equity to which either party may be entitled. 19.7 Dispute Resolution [TIP: This section deals with how disputes are to be resolved. How would the Parties like to resolve disputes, should any arise? While everyone usually hopes to avoid disputes and breaches of contract those can arise for various and many reasons, including because the agreement is ambiguous or uncertain in some respect, or a party is negligent or willfully acts contrary to one or more terms or provisions of an agreement. There are various important choices available to the Parties in resolving disputes, conflicts and breaches or violations of this Agreement that the Parties are not able to resolve consensually by themselves or through their respective representatives or attorneys. These include mediation, non-binding arbitration, binding arbitration, and judicial litigation. While this Agreement anticipates that the Parties will engage in judicial litigation, and contains a very simple provision about that, you may wish to consider the other options as well. Docstoc has several resources available regarding dispute resolution including plug-in provisions for mediation, non-binding arbitration, binding arbitration, and judicial litigation available here] The Parties shall endeavour to resolve any differences of opinion which may arise between them with respect to the provisions of this Agreement by negotiation between themselves personally or with the assistance of their attorneys and unless in the opinion of any party, acting reasonably, the matter in dispute is of such a significant nature to warrant it being addressed otherwise, no party shall commence any public proceedings until the negotiations have failed to produce a resolution. In furtherance of the provisions of this paragraph, all Parties hereby agree to make themselves available on short notice and to negotiate promptly and in good faith, any matter any party may wish to © Docstoc®, Inc. 2011 – All Rights Reserved negotiate. If there is no resolution then the Parties agree that any dispute, claim, or action hereunder shall be resolved exclusively in and with a court of law or equity having jurisdiction over the Parties and subject matter. 19.8 Entire Agreement This Agreement shall constitute the entire agreement between the Parties and will supersede all prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof. The Parties shall not be bound or charged with any oral or written agreements, representations, warranties, statements, promises, information, arrangements or understandings not specifically set forth in this Agreement. This Agreement has been carefully drafted and the Parties are convinced that this document completely and clearly expresses their intentions. Further, the Parties place great value on the quick and inexpensive resolution of any dispute that may arise between them concerning this contract or the subject hereof. Therefore, the Parties agree that: (i) all disputes concerning this Agreement or the subject matter hereof shall be resolved as provided herein; (ii) this Agreement constitutes the sole agreement among the Parties, and supersedes any and all prior or contemporaneous oral or written agreements, promises, or understandings among them, pertaining to the matters contemplated in this Agreement; (iii) no express or implied representations, warranties, or inducements have been made by any party to any other party except as set forth in this Agreement; (iv) this Agreementmay not be amended, added to, or altered except by a writing duly executed by each of the Parties hereto, as set forth herein; and (v) no parole or extrinsic evidence whatsoever may be introduce or considered in any judicial or arbitration proceeding involving this agreement, for any purpose, including to interpret, explain, clarify, or add to this Agreement, except in any instance in which a provision is found in whole or in part to be invalid, illegal or unenforceable and subject to severability and the arbitrator or court undertakes to re-write or construe the severed provision as closely as possible to conform to the intent of the Parties. 19.9 Severability Each of the provisions of this Agreement (and each part of each such provision) is severable from every other provision hereof (and every other part thereof). In the event that any provision (or part thereof) contained in this Agreement or the application thereof to any circumstance shall be invalid, illegal or unenforceable, in whole or in part, and to any extent: (i) the validity, legality or enforceability of such provision (or such part thereof) in any other jurisdiction and of the remaining provisions contained in this Agreement (or the remaining parts of such provision, as the case may be) shall not in any way be affected or impaired thereby; (ii) the application of such provision (or such part thereof) to circumstances other than those as to which it is held invalid, illegal or unenforceable shall not in any way be affected or impaired thereby; (iii) if possible, such provision (or such part thereof) shall be construed or re-written as closely as possible to conform to the intent of the Parties, in which instance parole or extrinsic evidence may be considered to do so; (iv) if not susceptible to such construction, such provision (or such part thereof) shall be severed from this Agreement and ineffective to the extent of such invalidity, illegality or unenforceability in such jurisdiction and in such circumstances; and (v) the remaining provisions of this Agreement (or the remaining parts of such provision, as the case may be) shall nevertheless remain in full force and effect. © Docstoc®, Inc. 2011 – All Rights Reserved 19.10 Headings The headings for sections herein are for convenience only and shall not affect the meaning of the provisions of this Agreement. Such headings shall not be deemed to govern, limit, modify or in any other manner affect the scope, meaning or intent of the provisions of this Agreementor any part thereof, nor shall they otherwise be given any legal effect. 19.11 No Unannounced Modifications to Signature Documents The Parties have reviewed (and, if applicable, negotiated) this Agreement, in its electronic form. They desire to sign the hard-copy version without having to re-read it to confirm that no unauthorized changes were made before the final printout. Accordingly, by signing and delivering this Agreement, and/or any exhibit, amendment, or addendum to it, now or in the future, each Party represents that it has not made any changes to any other draft provided to (or by) the other party, unless the signing Party has redlined the changes or otherwise expressly called them to the other party’s attention in writing. (Non-substantive format clean-up and correction of immaterial spelling errors need not be redlined.) 19.12 Waiver A waiver by either party of any provision of this agreement in any instance shall not be deemed to waive it for the future. A Party’s failure to insist on strict compliance with any of the terms of this agreement on one or more occasions is not a waiver of any rights or obligations under this Agreement. 19.13 Survival Those sections of this Agreement, that should logically survive termination or expiration of this Agreement, shall survive termination or expiration of this Agreement. 19.14 Construction If there is any controversy regarding this agreement or the terms of this Agreement, this Agreement, will be deemed to have been drafted by all Parties herein and will not be strictly construed as against any party. The Parties have been made aware of their right and opportunity to consult with independent legal counsel and have either done so, or knowingly waive the right to do so. Further, the Parties acknowledge that they have engaged in negotiations to reach this Agreement. 19.15 Counterparts This Agreement, may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one and the same agreement, including the judicial proof of any of the terms hereof. A photocopy, fax copy, or electronic image copy, which depicts the inclusion of one or more signatures by pen on paper, shall be deemed an original. © Docstoc®, Inc. 2011 – All Rights Reserved 19.16 Attorneys’ Fees In the event of litigation or arbitration relating to the subject matter of this Agreement, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys' fees incurred in enforcing this Agreement. IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement, as of the day and year first written above. Company Representative Per: Per: Name: __________________ Name: _____________________ Title: Title: ____________________ I have authority to bind Company. I have authority to bind Representative. © Docstoc®, Inc. 2011 – All Rights Reserved EXHIBIT A DESCRIPTION OF SERVICES TERRITORY © Docstoc®, Inc. 2011 – All Rights Reserved
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