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NetGravity / Asia Pacific Ventures - Consultant & Representative
ASIA PACIFIC VENTURES CO.
CONSULTANT & REPRESENTATIVE AGREEMENT WITH
NETGRAVITY, INC.
This Consultant and Representative Agreement, herein referred to as ("Agreement"), is made by and between NetGravity, Inc., a California corporatio
n located at 1700 South Amphlett Drive, San Mateo, California 94403, USA, ("NETGRAVITY"), and Asia Pacific Ventures Co., a California limited liability company, located at 535 Middlefield Road, Suite 150, Menlo Park, California, 94025, USA ("APV"). This A
greement is effective as of June 1, 1998 (the "Effective Date").
1. BACKGROUND
NETGRAVITY develops, manufactures and/or sells Ad Management Software
(together with all upgrades, enhancements, derivatives, modifications,
amendments and new product releases developed during the term of this
Agreement, the "Technology"). NETGRAVITY hereby appoints APV as
NETGRAVITY'S independent advisor and exclusive representative to promote
and assist in the structuring and establishment of business
relationships, including introducing NETGRAVITY'S Technology to
potential partners, distributors, and/or purchasers in the Territory.
The "Territory" is the geographical region of Asia, including but not
limited to the countries of Japan, Korea, Taiwan, and Hong Kong as well
as any area mutually agreed upon for which APV will have agent
2. MAJOR RESPONSIBILITIES OF APV
APV will use reasonable commercial efforts, conditional on NETGRAVITY'S
fulfillment of its responsibilities under Section 3 below, to:
(A) Lay out the strategic plan for establishing business relationships with
key partners in the Territory.
(B) Position NETGRAVITY with leading software vendors in the Territory for
marketing, distribution, and possibly localization of NETGRAVITY'S
(C) Maintain effective relationships with NETGRAVITY business partners in
the Territory.
(D) Assist NETGRAVITY with the collection of market and technology
information and other matters in developing NETGRAVITY'S strategy in the
(E) Generate and stimulate interest in the Technology and furnish information
to NETGRAVITY in regard to market developments, trends, and prospective
partners and/or purchasers of the Technology within the markets of the
(F) Participate in sales promotion activities to benefit sales of the
Technology and assist and advise NETGRAVITY in this regard within the
markets of the Territory.
(G) Maintain the confidentiality of any materials or information provided to
APV that is clearly identified as confidential, nonpublic information,
and promptly return such materials at the request of NETGRAVITY.
The detailed responsibilities of APV and their implementation are set forth in Exhibit A attached hereto:
3. MAJOR RESPONSIBILITIES OF NETGRAVITY
NETGRAVITY will use reasonable commercial efforts to:
(A) Endeavor to fulfill orders according to any agreement negotiated by
NETGRAVITY and individual vendors in the Territory.
(B) Provide APV with appropriate corporate marketing, sales and technical
information and assistance regarding the Technology, and keep APV
informed of changes in the corporate strategy and/or Technology.
(C) Be directly responsible for all expenses of catalogues, samples,
advertisements, exhibitions and seminars created by APV for sales
promotion of NETGRAVITY or the Technology.
(D) Once APV has successfully established a business relationship with a key
partner in the Territory for NETGRAVITY, NETGRAVITY will provide
APV with a copy of the final signed NETGRAVITY/Partner agreement.
4. TERM OF AGREEMENT
This Agreement will become effective on the Effective Date and will
expire seven (7) months thereafter, unless (i) extended by mutual
agreement, (ii) terminated as provided elsewhere in this Agreement, or
(iii) terminated upon thirty (30) days written notice by either party to
the other, provided, however, that any right of APV to compensation
earned or accrued hereunder will survive any such expiration or
5. PAYMENT TERMS (A) MONTHLY RETAINER FEE: NETGRAVITY agrees to pay APV a Monthly Retainer
Fee (with the first such fee due on the Effective Date) in advance for
the services outlined in this Agreement. The Monthly Retainer Fee is for
the following time period and amount:
June 1, 1998 - December 31, 1998 $10,000 per month
NETGRAVITY agrees to pay APV the above described monthly Retainer Fees
immediately upon receipt of invoice. NETGRAVITY agrees to pay APV an
additional fee of 5% of the total Monthly Retainer Fee if payment is
received by APV later than thirty (30) days from the invoice date. All
amounts payable to APV under this Agreement must be made in U.S.
currency in the form of a written check, or by wire transfer to:
Cupertino National Bank (ABA #121141152) in the bank account of APV
numbered 003082458, or to such other account as APV shall designate.
(B) COMMISSION FOR FUNDING ARRANGEMENTS: NETGRAVITY agrees that should any
investment (equity, debt or any combination thereof), acquisition, or
joint venture be consummated, or any manufacturing, production,
distribution or joint development agreements(s) or any other business
arrangements be entered into by NETGRAVITY as a result of introductions
arranged by, negotiations performed by, or other efforts of APV,
NETGRAVITY will pay to APV a commission on the total consideration
actually received or benefits actually derived from such transaction(s)
by NETGRAVITY at any time. The commission rate will be calculated, and
the other terms of payment will be determined in accordance with Exhibit
B hereto.
(C) REVENUE COMMISSION: PURCHASE ORDER AND DELIVERY: NETGRAVITY agrees to
pay APV a commission on actual sales, defined as contracted bookings,
in the Territory during the period covered under this agreement. The
commission rate will be calculated in accordance with Exhibit B.
APV is not authorized to accept any purchase orders on behalf of
NETGRAVITY or to otherwise finalize any business agreements and/or sales
of the Technology. NETGRAVITY will be solely responsible for order
acceptance, product assembly, packaging, shipping, delivery, export
compliance, warranty arrangements and all related responsibilities in
connection with the sale of Technology in the Territory.
(D) COMMISSION PAYMENTS, REPORTS: NETGRAVITY will directly invoice all
contracts, in U.S. dollars, to its customers in the Territory. All
commission payments payable with regard to any funds received by
NETGRAVITY will be due and payable to APV within thirty (30) days of
quarter end.
(E) REIMBURSEMENT OF EXPENSES: NETGRAVITY will reimburse APV for any
reasonable traveling and entertainment (T&E) expenses incurred by APV in
fulfilling its duties hereunder, subject to any exceptions expressly
stated in this Agreement or communicated in writing to APV prior to
incurring such expenses. APV will not make trips or incur other
significant expenses without receiving prior approval from NETGRAVITY.
T&E includes, but is not limited to, airfare, hotel, taxi, bus,
limousine, rental car, meals, telephone, and facsimile charges. Either
party may propose the translation of documents into one or more
languages of the Territory, to assist APV in fulfilling its duties, and
NETGRAVITY will pay APV for translation of any documents NETGRAVITY
authorizes to be so translated. APV will provide NETGRAVITY with
accurate and reasonably detailed invoices, including receipts for
expenses incurred, and NETGRAVITY will pay APV for any of the above
expenses in accordance with such invoices immediately upon their receipt.
6. RELATIONSHIP OF PARTIES
NETGRAVITY and APV agree that APV is an independent contractor.
Personnel employed by APV who perform duties related to the Agreement
will remain under the supervision, management, and control of APV. APV
will have no authority, without NETGRAVITY'S consent, to sign or
otherwise enter into any kind of contract, undertaking or agreement on
behalf of NETGRAVITY, or to make any promise, warranty or representation
with respect to NETGRAVITY Technology except strictly in accordance with
NETGRAVITY materials provided to APV, and NETGRAVITY will not be bound
thereby unless it expressly agrees otherwise. NETGRAVITY may deal
directly with customers in the Territory. If a customer, distributor or
other business partner introduced by APV chooses to deal directly with
NETGRAVITY, NETGRAVITY will notify and consult with APV.
To Permit APV to freely devote its skilled personnel to services
hereunder, NETGRAVITY agrees that for the term of this Agreement and one
(1) year thereafter, it will not solicit or induce (i) any employee or
independent contractor of APV or (ii) any former employee of APV who was
employed by APV not less than one (1) year prior to the date of
solicitation, to terminate or breach an employment, contractual or other
relationship with APV or to become an employee of NETGRAVITY. In
addition, NETGRAVITY will not retain or accept services from anyone that
it has reason to know is using technology, know-how or information that
is proprietary to APV.
7. ASSIGNMENT OF AGREEMENT
Neither this Agreement nor any rights or obligations of either party
hereunder may be assigned without prior written consent of the other
party. Subject to the provision regarding assignments, the Agreement
will be binding upon the successors and assigns of the respective
8. TERMINATION
This Agreement may be terminated by either party upon written notice to
the other if any of the following occur: material default of this
Agreement (unless cured within thirty (30) days), receivership,
insolvency or assignment for the benefit of creditors of the other party.
9. REPRESENTATIONS OF NETGRAVITY
NETGRAVITY represents that it has the power and authority to enter into
this Agreement, and that this Agreement does not violate the terms of
any other agreement or understanding of which it is a party. NETGRAVITY
further represents that (i) it has all legal right and au...
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