MEMORANDUM OF AGREEMENT OF ARMOUR SEALANT AGENT SUPPORT NETWORK (ASN)

made and entered into by and between:

Armour Tyre Sealant (PTY) LTD

REGISTRATION NUMBER:  2020/047936/07

[Hereinafter referred to as “ATS”]

and

The signing agent

[Hereinafter referred to as the “Agent”]

(Collectively referred to as the Parties)

WHEREAS;
The ATS, who is the holder of a preferred distributor license to market and sell various Tyre Sealant Products and others (hereinafter referred to as “the products”);

AND WHEREAS
ATS wishes to expand its distribution network and increase its client base;

AND WHEREAS
The Agent is desirous to introduce ATS to Clients whom are potential purchasers of the Product;

AND WHEREAS;
The Parties have agreed to record the following Terms and Conditions:


1. DEFINITIONS & INTERPRETATION


1.1. Words importing the singular shall include the plural and vice versa and words importing the masculine gender shall include females and words importing natural persons shall include partnerships and other bodies corporate;

1.2. The head notes to the paragraphs of this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate;

1.3. the “Agreement” means this Agent Agreement, all its amendments thereof and all its schedules and Annexure[s] as amended from time to time;

1.4. the “Commencement Date” means the date of signature of this Agreement by both Parties;

1.5. “ATS” means Armour Tyre Sealant (PTY) LTD Registration Number 2020/047936/07;

1.6. the “Agent” means:
Identity or company number:

1.7. the “Intellectual Property Rights” means any intellectual property rights such as copyrights, patents, trademarks and designs relating to or used in connection with the products or the labelling thereof and the know-how and included applications for any of the aforegoing and intellectual property shall bear a corresponding meaning;

1.8. “know-how” means all the ideas, designs, techniques, methods, pricing structures and other information relating to or used in connection with the products;

1.9. The “Parties” shall mean ATS and the Agent collectively;

1.10. the “Product/s” means the sum of the products supplied by ATS and such other products as are agreed to between the Parties from time to time;

1.11. the “Territory” means all countries globally and its islands unless agreed otherwise by the Parties from time to time in writing;

1.12. the “trade names” mean the trade name “Air Seal” together with any other trade names, trademarks, logos and the like adopted and used by ATS from time to time and any name used in connection with the products;

1.13. when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;

1.14. where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;

1.15. schedules or annexures to this Agreement shall be deemed to be incorporated in and form part of this Agreement;

1.16. The “Cost Price” means the costs determined and associated with landing, manufacturing, delivery, packaging and any costs related to bringing the product into the Agent Sales Network.

1.17. The “Margin” shall be determined by deducting the Cost Price from the client’s invoiced and collected purchase or retail price.

2. INTRODUCTION

2.1. ATS hereby confirms that it has been granted a license to market, sell, and distribute the Products within the Territory;

2.2. Commencing as of the Effective Date of this Agreement and continuing in effect for a period of eight years until its renewable anniversary.

2.3. Subject to Agent’s compliance with the remaining provisions of this Agreement in each case, and subject to ATS’s acceptance of such Referred Clients, ATS agrees to compensate Agent in accordance with clause 3 below.

3. COMMISSION FEE

3.1. Agent understands and acknowledges that ATS clients pay ATS in accordance with contracts entered into by ATS and such clients.

3.2. Each client record loaded to the Customer Relationship Management software will have indicated who is fulfilling the roles of inter alia, Introducer, Agent or Distributor.

3.3. Agents will earn commissions based on Armour Sealant products only. As ATS has no pricing control over hardware, equipment and such third party supplies they are considered non-commissionable items.

3.4. As consideration for a purchasing Client, the Agent shall be entitled to the following monthly commissions based on the combined turnover and margin calculated on their client’s collected invoices. Each payment shall be paid to Agent on or before the last day of the month following the month in which full payment is received by ATS on each order placed by the Client.

AmbassadorAmbassador Min to MaxLocalGlobal
1 to 5020% 1 to 4930%30%
51 to 9925% 50 to 9935%35%
100+30% 100 to 99940%40%
   1000 to 4999 45%
   5000 to 24999 50%
   25000 to 74999 55%
   75000+ 60%

3.5. Commission Sharing Arrangement:

3.5.1. When an Agent requires assistance from another Agent for client demonstrations and sales assistance outside their geographical area, the applied commission will be calculated based on the total revenue on that deal within a specific calendar month based on the commission tier of the Agent with the highest agency tier involved in the deal.

3.5.1.1. Example: If a Global Agent in one area requires assistance from a Local Agent in another geographical area, the commission for the deal will be based on the Global Agent’s commission tier calculated against the revenue for this specific deal in a calendar month.

3.5.2. In a commitment to nurture growth and partnership within the Armour Sealant Agent Support Network, Armour Sealant HQ will contribute an additional 20% Beneficial commission on margin to the closed deal.

3.5.3. The final Agent commission on the deal, plus the additional Armour Sealant HQ commission, will be shared equally (50/50) between any agreed collaborating Agents.

3.5.3.1. Example: If the deal’s Agent commission happens to be 45% on margin based on the deal revenue within a specific month, plus the 20% Beneficial commission, each Agent involved will receive an equal share of the 65%.

3.5.4. The Agents involved must agree to the collaboration and abide by these terms.

3.5.5. Both Agents must be in good standing and must abide by the Network Rules.

3.5.6. All shared deals must be disclosed and accepted by Armour Sealant HQ prior to advancing with any sales assistance.

3.6. Referred Clients shall not be considered accepted by ATS, and ATS shall have no payment obligation hereunder, unless and until a contract is signed by ATS and the referred Clients and the “Network Sales Rules Annexure” are met entirely.

3.7. The Parties hereby agree that the Agent is only entitled to a commission fee if he is the sole effective cause of the sale(s) and moreover that no other Agent is entitled to claim any commission fee from ATS arising from the sale(s) claimed by the respective Agent.

3.8. Should any claim be made by anyone else (the “additional Agent”) in respect of commission fee claimed by the Agent, then both the aforementioned Agents indemnify ATS against such competing claims, and bind themselves to the provisions of clauses 6 and 11.

3.9. In the event of a dispute between Agents, then, ATS is entitled, in its sole, unfettered and absolute discretion, to retain the Commission Fee until the dispute is settled, or at any point during the dispute, pay the Commission Fee, after the deduction of any fees, costs or disbursements incurred by ATS, into the trust account of an attorney who shall hold the funds in escrow.


4. RELATIONSHIP BETWEEN THE PARTIES

4.1. The Agent will be known within the Sales Network as an:
Agent: Global

4.2. The Agent is authorized to introduce to ATS the Client(s) and conclude sales;

4.3. The Agent will instruct ATS to invoice the client for payment and ordering or direct consumers to order via an online order cart for tracking and processing or where the Agent holds stock, to invoice and supply the client directly on their own cognisance;

4.4. Agent is not authorized to act as employee for ATS, nor to bind ATS in any manner;

4.5. Agent is not an employee, representative, partner or joint venturer of ATS and Agent shall not hold itself out as such and shall not make any assertion that could lead the client to believe that Agent is an employee, representative, partner or joint venturer of ATS;

4.6. This Agreement is not exclusive as to either Party, subject to clause 6 and its sub-clauses below, and ATS shall be free to engage others to introduce ATS to clients;

4.7. Neither Party will incur any liability on behalf of the other, or in any way pledge or purport to pledge the other or the credit of the other or make any contract binding on the other.

5. NON- CIRCUMVENTION

5.1. The Agent hereby agrees that they shall not now, or for a period of two years reckoned from the date of the written termination of this Agreement, either directly or indirectly, engage in the following practices:

5.1.1. engage with the manufacturer of the product(s) and all international suppliers thereof, save with ATS’s prior written consent;

5.1.2. engage in dealings with any third Party disclosed in the Confidential Information or introduced to it by the Disclosing Party, which shall include–

5.1.2.1. discussing the Confidential Information;

5.1.2.2. contacting such third parties in respect of the Confidential Information; and/or

5.1.2.3. conducting business with any third party, directly or indirectly, in respect of the Confidential Information, unless the Agent can show that he has already been dealing with such third party with regard to such Confidential Information; and/or

5.1.2.4. make contact with or persuading, inducing, soliciting or encouraging any client or service provider of ATS to alter or terminate.

6. GENERAL DUTIES AND OBLIGATIONS OF THE AGENT

6.1. The Agent:

6.1.1. shall not sell or supply any goods similar to or likely to be in competition with the products;

6.1.2. shall not assist or allow anyone to sell or distribute any goods similar to or likely to be in competition with any of the products anywhere;

6.1.3. shall not in any way be employed directly or indirectly by a competitor;

6.1.4. shall not create, disseminate or publish any marketing materials with the Armour Sealant branding or any Products mentioned without written approval from ATS;

6.1.5. shall act in the utmost good faith towards ATS and any purchaser of the product and shall at all times uphold the integrity and ethics of the ATS;

6.1.6. shall refer to ATS inquiries for the products made by any parties whatsoever with such reasonable particularity as to enable ATS to respond thereto;

6.1.7. shall schedule and arrange an appointment with then client(s), himself and ATS at the Parties earliest possible convenience;

6.1.8. shall provide sales advice, support and offerings around ATS Products concluding sales up to invoicing and ordering;

6.1.9. shall introduce the client(s) exclusively to ATS;

6.1.10. shall provide ATS with relevant information pertaining to the client(s) including but not limited to the contact details of the client(s);

6.1.11. shall immediately, on canvassing a new client that may lead to an effective business relationship between the Parties, log the opportunity with ATS Customer Relationship Management software (CRM) in order to secure the Agent’s Commission, providing sufficient particularity so as to identify the client, its decision-maker, and business locations, branches or divisions identified in so far as the Agent wants to be recognised as the effective cause of the introduction;

6.1.12. shall comply with the “Network Sales Rules Annexure”

6.2. The Agent will allow ATS to conduct a background check including criminal record check.

6.3. The Agent, for the purposes of being prepared to pitch the product(s) to the client(s) shall procure any information, including the “Network Sales Rules Annexure” that may be of use to ATS including:

6.3.1. Fleet size;

6.3.2. Fleet requirements (Tyre sizes and specifications etc);

6.3.3. Cost and time analysis in regard to the fleet history;

6.3.4. Number of wheels per vehicle within the fleet;

6.3.5. Any other information particular to the client(s) requirements. 

7. GENERAL DUTIES AND OBLIGATIONS OF ATS

7.1. ATS, its Agents, assigns and/or subsidiaries shall do all things which are reasonably necessary or desirable for or incidental to or connected with the day-to-day rendering of the products, services, and supply sufficient and suitable labour to execute the orders;

7.2. ATS shall be obliged to duly and timeously invoice the client for all work done and materials and/or goods supplied to the client and is further obliged to on written demand furnish the Agent with copies of all such invoices;

7.3. ATS shall further be obliged to duly and timeously make payment of all and any commission and/or agreed fees, as envisaged in clause 3.4 above, to the Agent after any Agent Sales Network deductions due, owing and payable;

7.4. ATS shall be obliged to disclose all invoices presented in respect of services rendered and/or goods supplied to the client(s);

7.5. ATS shall provide the client(s) with all reasonably necessary after sales service, training and follow up assistance if required;

7.6. to answer any technical queries made by the Client(s) and/or the Agent in respect of the products within a reasonable time frame;

7.7. ATS shall, strictly for its own record purposes, maintain a database of clients and their Agents and shall ensure compliance with The Protection of Personal Information Act (POPI) by implementing suitable data protection measures so as to indemnify the Agent from any POPI related obligations and requirements.

7.8. not do anything or allow or permit anything to be done that will or may be likely to impair the ability of the Agent to duly perform his rights and obligations in accordance with this Agreement.

7.9. in the case where two competing Agents claim to be the sole Agent of a client, then the Agent that most complied with the “Network Sales Rules Annexure” and clause 6.1.11 will win. In the case of a deadlock ATS will provide an arbitration round table to examine the facts and declare a winner.

7.10. The decision of ATS is final and will declare a sole Agent of the client, and to whom commission fees are lawfully due, owing and payable;

8. EXCLUSION OF LIABILITY FOR FAILURE TO DELIVER PRODUCTS

In the event of any delay in performance by either Party due to any cause arising from or attributable to acts, events, non-happenings, omissions, accidents or acts of God beyond the reasonable control of such Party (including, but not limited to, strikes, lock-outs, shortage of labour, civil commotion, riots, war, threat of or preparation for war, breaking off of diplomatic relations, fire, explosion, sabotage, storm, flood, earthquake, fog, subsidence, pestilence or epidemic, machinery breakdown, failure of plant or collapse of structure, voluntary or mandatory compliance with any direction, request or order of any person having or appearing to have authority, inability to obtain suitable raw material, equipment, components or transportation as a result of force majeure, or any other cause or contingency beyond the control of the Parties), the Parties shall be under no liability for loss or injury suffered by the Parties as a result thereof and the performance of such obligation by either Party as the case may be, shall be suspended during such delay and upon cessation of the cause of such delay, this Agreement shall again become fully operative and the Parties shall immediately rectify such delay in performance, provided that, if such delay pertains to a material obligation of the Parties by such event of force majeure and such delay shall exceed 90 (ninety) days, the Parties shall be entitled to terminate this Agreement by written notice to either Party as the case may be.

9. INDEMNITY

9.1. ATS hereby indemnifies and holds the Agent harmless against any loss or damage, of whatsoever cause, that may be suffered by the client and /or any third Party as a result of or in relation to the product(s) or the acts or omissions of ATS or any of its employees or representatives whether in execution of the orders or otherwise.

9.2. The Agent hereby indemnifies and holds ATS harmless against any loss or damage, of whatsoever cause, that may be suffered by the client and /or any third Party and the Agent as a result of or in relation to the product(s) or the acts or omissions of ATS or any of its employees, representatives or Agents whether in execution of the orders or otherwise.

10. CONFIDENTIALITY

10.1. The Parties shall treat as strictly confidential all price information related to this contract, all products and all trade secrets.

10.2. A Party may disclose information which would otherwise be confidential if and to the extent that it is:

10.2.1. required by law;

10.2.2. required by any securities exchange or regulatory or a governmental body to which either of the Parties are subject, wherever situated, whether or not the requirement for information has the force of law;

10.2.3. required to vest the full benefit of this Agreement in both of the Parties;

10.2.4. disclosed to the professional advisors, auditors and bankers of both of the Parties;

10.2.5. information that has come into the public domain through no fault of that Party; or

10.3. approved by the other Party who has given prior written approval to the disclosure.

11. DISPUTES

11.1. Should any dispute, controversy or claim arising out of or relating to this Agreement (including an urgent dispute) (the “Dispute”), then the Parties shall use their reasonable efforts to resolve such Dispute through good faith and amicable negotiation.

11.2. Any dispute arising out of or pursuant to this agreement, shall, at the request of any Party to the dispute, be finally resolved by an arbitrator or arbitrators agreed to between the Parties to the dispute and failing such agreement within 3 (three) days of a request therefor by any Party, appointed by the Arbitration Foundation of Southern Africa (“AFSA”), by means of arbitration to be held in Cape Town, under the aegis of AFSA, but solely and exclusively applying the Uniform Rules of the Cape High Court in force at the time.

11.3. Each Party to this agreement irrevocably:

11.3.1. consents to any arbitration in terms of the aforesaid rules being conducted as a matter of urgency; and

11.3.2. authorises the other to apply, on behalf of both Parties to such dispute, in writing to the secretariat of AFSA, on good cause shown to the arbitrator, for any such arbitration to be conducted as a matter of urgency.

11.4. For the purposes of this clause 11 and for the purposes of having any award made by the arbitrator/s being made an order of court, each of the Parties hereby submits itself to the Western Cape High Court (Cape Town).

11.5. This clause 11 constitutes an irrevocable consent by each of the Parties to any proceedings in terms hereof, is severable from the rest of the agreement and shall, notwithstanding the termination of this agreement, remain in full force and effect

12. BREACH

12.1. Should any Party (“the defaulting party”) commit a breach of any of the provisions hereof, then any of the other Parties (“the aggrieved party”) shall be obliged to give the defaulting party 14 (fourteen) days written notice to remedy the breach. If the defaulting party fails to comply with such notice, the aggrieved party shall be entitled to cancel this Agreement against the defaulting party or to claim immediate payment and/or performance by the defaulting party of all of the defaulting party’s obligations, in either event without prejudice to the aggrieved party’s rights to claim damages. The aforegoing is without prejudice to such other rights as the aggrieved party may have at law; provided always that, notwithstanding anything to the contrary contained in this Agreement, the aggrieved party shall not be entitled to cancel this Agreement for any breach by the defaulting Party unless such breach is a material breach going to the root of this Agreement and is incapable of being remedied by a payment in money, or if it is capable of being remedied by a payment in money, the defaulting party fails to pay the amount concerned within 14 (fourteen) days after such amount has been determined.

13. DOMICILIUM

13.1. The Parties hereto respectively choose domicilium citandi et executandi (domicilium) for all purposes arising out of, in connection with or pursuant to this Agreement, as follows:

13.1.1. ATS ADDRESS
Strand Ridge,
Guldenland,
Strand,
7140,
South Africa
Email: legal@armoursealant.com

13.1.2. AGENT ADDRESS

Agent to supply address, mobile phone and email

13.1.3. Each of the Parties hereto shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office box or poste restante.

13.2. Any notice given by any Party to another (the addressee) which –

13.2.1. Is delivered by hand during the normal business hours at the addressee’s domicilium for the time being, shall be rebuttably presumed to have been received by the addressee at the time of delivery;

13.2.2. is transmitted by email shall be rebuttably presumed to have been received by the addressee on the day of transmission.

13.3 Agent to supply the Banking details you want your commissions paid out in.

 

2. SEVERABILITY

2.1. Each provision in this Agreement is severable from all others, notwithstanding the manner in which they may be linked together or grouped grammatically, and if in terms of any judgment or order, any provision, phrase, sentence, paragraph or clause is found to be defective or unenforceable for any reason, the remaining provisions, phrases, sentences, paragraphs and clauses shall nevertheless continue to be of full force. In particular, and without limiting the generality of the aforegoing, the Parties hereto acknowledge their intention to continue to be bound by this Agreement notwithstanding that any provision may be found to be unenforceable or void or voidable, in which event the provision concerned shall be severed from the other provisions, each of which shall continue to be of full force.

2.2. Should any provision of the Agreement be contrary to any statutory provision or common law, the Agreement will not be void but any such contrary provision will be regarded as pro non scripto to the extent that such act, statute or common law is thereby contravened.

GENERAL

2.3. This document constitutes the sole record of the Agreement between the Parties in regard to the subject matter hereof.

2.4. Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.

2.5. No addition to, variation or consensual cancellation of this Agreement shall be of any force or effect unless in writing and signed by or on behalf of the Parties.

2.6. No indulgence which either Party (the grantor) may grant to the other (the grantee) shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee which may have arisen in the past or which might arise in the future.

3. GOOD FAITH

The Parties shall co-operate and consult with each other regarding their respective rights and obligations in terms of the Agreement, it being the intention that the relationship between them shall be governed by the principles of utmost good faith.

4. GOVERNING LAW

This Agreement and its termination shall be governed by and constructed in accordance with the laws of the Republic of South Africa. Both the Parties agree that all legal action based on any claim arising under or out of this Agreement must be determined in accordance with South African law and filed and prosecuted in a court of competent jurisdiction located in the Republic of South Africa and each of them hereby consents and irrevocably submits to the jurisdiction of such court in respect of all legal action or proceedings arising out of or in connection with this Agreement, its implementation, interpretation and/or termination.

5. COUNTERPARTS

This Agreement may be executed in any number of counterparts and by different Parties in separate counterparts, either of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement.

6. COSTS

Each Party shall bear and pay its own costs of and connected with the negotiation, preparing and conclusion of this Agreement.

Network Sales Rules Annexure

1. All leads are loaded to central CRM database to secure ownership and ascertain the initiation date with the client.

2. All records must have FULL contact details and information of DECISION MAKERS including details of the order process and branch level details.

3. Client needs to be verbally contacted by telephone or in person then emailed within 10 (ten) working days (FIRST CONTACT)

4. Thereafter, meeting face to face (or video conference) within 21 (twenty-one) working days

5. Agent to supply the request for information data within (2) working days of face to face meeting

6. To quote the client within 10 (ten) working days thereafter

7. The Agent has 10 (ten) working days to win or lose the opportunity

8. The Agent has 10 (ten) working days for each quote revision
All of the above rules must be met to ensure:
• Eligibility for commission earnings.
• Continued ownership of an account
• Any of the above duration periods can be extended at the discretion of ATS where progress is being made but has been delayed

Need Further Assistance?

If you require any further assistance or have questions not covered in our agency agreement, please contact us directly.

Legal@ArmourSealant.com

WhatsApp: +27 76 8686 029

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