EMPLOYMENT
CONTRACT (SALES)
EMPLOYMENT
AGREEMENT, effective this ________ day of _________ (month), ____ (year), by
and between ________________________________ (hereinafter referred to as the
"Company"), a corporation organized and existing under the laws of
the State of ____, with its principal place of business located at
__________________, and ___________________ (hereinafter referred to as the
"Employee"), an individual, with his or her principal residence
located at _________________________________.
WITNESSETH:
WHEREAS,
the Company is in the business of ___________________ and
WHEREAS,
the operation by the Company of its business requires disclosure of
confidential information to its employees; and
WHEREAS,
such confidential information provided to the Employee by the Company, if
improperly used by the Employee for his or her own purpose rather than on
behalf of the Company, can result in irreparable harm to the Company, which
harm, because of the nature of the industry, is not susceptible to precise
proof; and
WHEREAS,
the training of the Employee by the Company, the skills obtained by the
Employee and the disclosure to the Employee of such aforesaid confidential
information makes such Employee valuable to competitors of the Company; and
WHEREAS,
the Employee is desirous of entering into the employment of the Company and is
aware of the foregoing consideration and understands the reasons for the terms
and conditions of his or her employment as set forth below.
NOW,
THEREFORE, in consideration of the premises and mutual covenants and promises
set forth herein, and intending to be legally bound hereby, the parties agree
as follows:
ARTICLE
I: PURPOSES. The Company hereby employs the Employee and the Employee accepts
employment from the Company as a salesperson and/or such other duties as the
Company may, from time to time, determine.
The
Company hereby engages the Employee for the primary purpose of soliciting
____________________ sales in the territory or territories to be determined by
the Company at the Company's sole discretion.
ARTICLE
II: DUTIES. The Employee accepts such employment as a salesperson and agrees
to devote his or her full-time and best efforts to soliciting sales in the
territory or territories to be determined by the Company.
The
Employee shall solicit ________________ sales for the exclusive benefit of the
Company and perform such other duties as may be assigned to him or her by the
Company. The Employee agrees that
during the term of this agreement, he or she will have no other employment
except as may be specifically authorized in writing by the Company. The Employee shall not serve as an adviser,
agent, consultant, independent contractor or in any other capacity with respect
to any trade or business, proprietorship, partnership, corporation or other
entity, person or firm that directly sells or services _______________ or any
type of product or service that competes, conflicts or interferes with the
performance of his or her duties, unless he or she has first received written
consent of the Company, which consent shall be revocable at the will of the
Company.
The
Employee shall present the Company's line of __________________ to prospective
clients and will offer such ____________________ at prices furnished by the
Company, on the terms and conditions established by the Company and in the
territories established by the Company.
The
Employee shall not at any time enter into any contract with any person, firm or
corporation that shall purport to bind the Company in any manner whatsoever
without written authority from the Company and any such contract entered into
by such Employee shall not be binding upon the Company. The Company specifically reserves the right
to reject any contract or to cancel any contract or part thereof even after
acceptance, for credit reasons or for any other reason whatsoever that the
Company may deem appropriate.
ARTICLE
III: TERMS. The Company hereby employs the Employee, and the Employee hereby
accepts employment for a term of _________ (__) year(s) from the date hereof
unless terminated by either party by written notice sent by certified mail at
least _______ (___) days in advance of such termination. Such notice of termination shall not
prejudice either party as to any remedies under the provisions of this
agreement. If the agreement is not
terminated by either party during the initial term hereof, the Employee's
employment shall continue thereafter under the terms and conditions hereof for
a period of one year, and so on from year to year, until either party
terminates this agreement.
ARTICLE
IV: COMPENSATION. As compensation for all of the services to
be rendered by the Employee pursuant to the terms and conditions set forth
herein, and such other duties as the Company may from time to time determine
necessary, the Employee shall receive a commission in an amount to be
determined pursuant to the Schedule(s) of Commissions to be published
periodically by the Company.
In
the event that a commission is paid to the Employee pursuant to the terms of
this ARTICLE IV, and the Company, for whatever reason whatsoever, is thereafter
obligated to return the payments upon which the commission is determined, the
Employee shall, upon thirty (30) days written notice, repay to the Company such
compensation as he or she has received based on the amounts so returned or
returnable. Compensation payable
pursuant to this ARTICLE IV shall be paid not less frequently than monthly and
may be offset by any amounts owed to the Company.
In
the event the Company shall determine, in its sole discretion, that
compensation based on the Schedule of Commissions shall change, the Company
shall provide written notice to the Employee at least thirty (30) days prior to
the said change. The Company agrees
that it shall not change the commission schedule unless the said changes are
made for all sales employees of the Company.
Any
amounts paid and any benefits provided to the Employee pursuant to this
agreement that are deemed to be compensation under the Internal Revenue Code
shall be subject to the applicable income tax withholding for federal, state
and local income taxes. In addition,
the Company shall deduct from the compensation paid to the Employee such other
deductions as authorized by the Employee or by a court of competent
jurisdiction.
ARTICLE
V: OTHER BENEFITS AND EXPENSES. The Employee shall be entitled during the
term of this agreement to participate in all health-insurance and benefit
plans, group insurance or other plan or plans providing benefits generally
applicable to the employees of the Company who are currently in existence or
those who hereafter may be adopted by the Company.
Once
the Employee shall be deemed a "successful salesperson," said
determination to be at the sole discretion of the Company as applied to all
salespeople, the Employee may draw for expenses up to
___________________________ (Amount) ($_______) per month, the said draw amount
being subject to change as long as the said change applies to all
"successful salespeople" at the sole discretion of the Company. The Employee shall submit evidence of the
said expenses on no less than a monthly basis with the difference between the
monthly draw and the actual verified expenses being returned to the Company
within thirty (30) days of notice.
ARTICLE
VI: PRICES AND SERVICE. The Employee shall sell the Company's
___________________ at the price and under the terms and conditions established
by the Company. Said prices, terms and
conditions may, from time to time, be changed and/or modified by the Company at
its sole discretion. The Employee shall
not at any time enter into any contract with any person, firm or corporation
that shall purport to bind the Company in any manner whatsoever without written
authority from the Company and any such contract entered into by such Employee
shall not be binding upon the Company.
The Company specifically reserves the right to reject any application or
contract or to cancel any application or contract or part thereof even after
acceptance, for credit reasons or for any other reason whatsoever that the
Company deems appropriate.
ARTICLE
VII: TERMINATION. In the event of the death of the Employee,
the Company shall pay to the representative of the Employee's estate all funds
due to the Employee as of the date of death.
In the event that the Employee becomes disabled because of physical or
mental disability as to be unable to perform the services required by this
agreement and such disability continues for ___________ (____) days, the
Company may, at or after the expiration of such ____________ (____)-day period
and provided that the Employee's incapacity is then continuing, terminate the
Employee's employment under this agreement.
It is expressly understood that the inability of the Employee to render
services to the Company by reason of illness, disability or incapacity or any
cause beyond his or her control shall not constitute a failure by the Employee
to perform his or her obligations hereunder and shall not be considered a
breach or default under this agreement.
In
the event that the Employee violates any of the provisions of this agreement,
performs any act, or does anything by which the Company shall incur liability,
then, at the option of the Company, this contract shall at once cease and the
Company shall be under no obligation to the Employee, except to pay the
Employee for services performed up to the date of termination of this agreement
as herein provided.
In
the event that the Employee violates any of the provisions of this agreement or
fails to perform the services required of the Employee by this agreement, then
at the option of the Company, this agreement shall at once cease and become
null and void and the Company shall be under no obligation to said Employee,
except to pay the Employee such compensation as he or she may be entitled to
receive up to the time of such termination.
In
the event that the Employee becomes insolvent and is unable to pay his or her
debts in full, files a petition in bankruptcy, or is adjudicated a bankrupt,
this agreement shall at once cease and become null and void, and the Company
shall be under no obligation to the Employee, except to pay the Employee such
compensation as he or she may be entitled to receive up to the time of such
termination.
In
the event that the Employee should be arrested, be the subject of an
indictment, or charged with any crime or unlawful act involving an allegation
or charge of a breach of moral turpitude or the sale or use of a prohibited
drug or controlled substance, this contract shall at once cease and become null
and void, and the Company shall be under no obligation to the Employee, except to
pay the Employee such compensation as he or she may be entitled to receive up
to the time of such termination.
In
the event that the Employee should be found to have taken, used, or converted
any property belonging to the Company, the Employee shall be immediately
discharged and this contract shall, at once, cease and become null and void,
and the Company shall be under no obligation to the Employee, except to pay the
Employee such compensation as he or she may be entitled to receive up to the
time of such termination.
Any
payments due the Employee pursuant to termination shall be paid to the Employee
as soon as the Company can determine the true and correct amount for all
payments due the Employee. In the event
that said termination is due to the misconduct of the Employee, pertaining to
any of the terms hereunder, the Company shall have the right to withhold all
money due the Employee, and shall apply said funds as an offset against any
money due the Company by the Employee as a result of the Employee's
misconduct. In any event, the Employee
shall be entitled to an accounting, in writing, of the funds so withheld.
ARTICLE
VIII: CONFIDENTIAL INFORMATION. "Confidential Information" shall be defined for the purpose of this
agreement as information (1) disclosed to the Employee or known or gathered by
the Employee as a consequence of or through his or her employment by the
Company and (2) not generally known to the industry in which the Company is or
may become engaged about the Company's products, administrative services or
methods of doing business, including, but not limited to, information relating
to trade secrets, marketing techniques and programs, dates, figures,
projections, costs, methods of operation, identity of plans or administrative
services, estimates, customer lists, customer history, personnel history,
financial statements, accounting procedures and selling techniques.
That
the Employee will not during his or her employment or after termination
thereof, irrespective of the time, manner or cause of the termination of said
employment, directly or indirectly disclose to any person, firm or corporation
any of the above Confidential Information that he or she shall have acquired
during his or her term of employment.
The
Employee agrees that he or she will not, during his or her employment by the
Company, or at any time thereafter, interfere with or disrupt, or attempt to
interfere with or disrupt, any business relationship, contractual or otherwise,
between the Company and any other party, including clients or prospective
clients, suppliers, agents, or the employees of the Company.
The
Employee acknowledges that all documents, words, files, customer lists,
information and data in his or her possession or custody, whether gathered by
the Employee or any other person, and whether or not reduced to writing, an
electronic or magnetic medium, relating to the business activities of the
Company are and shall remain the sole and exclusive property of the Company
and/or the Company's customers.
That
upon the termination of said employment, irrespective of the time, manner or
cause of said termination, the Employee will surrender to the Company all
information written or otherwise in connection with the Company's customers or
business as well as other property of the Company.
ARTICLE
IX: NONCOMPETITION PROVISION. In further consideration of employment, the
Employee shall not engage in a business in any manner similar to, or in
competition with, the Company's or the Company's affiliated businesses during
the term of his or her employment.
Furthermore, the Employee shall not engage in a business in any manner
similar to or in competition with the Company's business for a period of
_________ (___) years from the date of termination of his or her employment
with the Company in the geographical area within a ____________ (____) mile
radius of any present or future office opened by the Company during the term of
employment and the geographical area within a _________ (____) mile radius of
the Employee's home address.
The
Employee shall not request any customers of any business then being conducted
or contemplated by the Company, or its affiliates, to curtail or cancel their
business with the Company or its affiliates.
The
Employee shall not disclose to any person, firm, or corporation, any trade,
technical or technological secrets, any details of organizations or business
affairs, any names of past or present customers of the Company or its
affiliates or any other information relating to the business or businesses or
their affiliates.
The
Employee shall not solicit, canvass, or accept any business or transaction for
any other person, firm, or corporation or business similar to any business of
the Company or its affiliates.
The
Employee shall not induce, or attempt to influence, any employee of the
business or its affiliates to terminate employment with the business or its
affiliates, or to enter into any employment or other business relationship with
any other person (including the Employee), firm or corporation.
The
Employee shall not act or conduct himself or herself in any manner that he or
she shall have reason to believe is inimical or contrary to the best interests
of the Company or its affiliates.
The
Employee shall not perform any act in violation hereof through any other person
or entity or through any plan, scheme, or design calculated to circumvent the
requirements hereof.
The
Employee acknowledges and agrees that the above restriction is reasonable as to
duration and geography, that it is fully enforceable. Furthermore said Employee waives any objection thereto, and
covenants not to institute any suit or proceeding, or otherwise advance any
position or contention to the contrary.
The
Employee recognizes that immediate and irreparable damage will result to the
Company if the Employee breaches any of the terms and conditions of this
article. Accordingly, the Employee
hereby consents to the entry of temporary, preliminary, and permanent
injunctive relief by any court of competent jurisdiction against him or her to
restrain any such breach, in addition to any other remedies or claims for money
damages that the Company may seek. The
Employee further agrees to render an equitable accounting of all earnings,
profits and other benefits arising from such violations, and to pay all costs
and counsel fees incurred by the Company in enforcing this agreement, whose
rights shall be cumulative. The
Employee represents and warrants to the Company that his or her experience and
capabilities are such that he or she can obtain employment in a business
without breaching the terms and conditions of this article, and that his or her
obligations under the provisions of this article (and the enforcement thereof
by injunction or otherwise) will not prevent him or her from earning a
livelihood.
This
covenant on the part of the Employee shall be construed as independent of any
other provisions of this agreement, and the existence of any claim or cause of
action by the Employee against the Company, whether predicated on this
agreement or otherwise, shall not constitute a defense to the enforcement by
the Company of this covenant.
In
the event that the Employee is in breach of any of the provisions of this
Article IX, the period of proscription from doing the act or acts that
constitute a breach of this Article IX shall be extended for a period of two
(2) years from the date that the Employee ceased, whether voluntarily or by
court order, to engage in or do said actions.
The
Employee recognizes and agrees that the Company does not have a remedy at law
adequate to protect the Company's rights and interests as set forth in this
article, and the Employee therefore agrees that the Company shall have the
right to an injunction enjoining the Employee from violating the provisions of
this article. Nothing herein contained
shall be construed as prohibiting the Company from pursuing any other remedies
available to the Company for such breach or threatened breach, including the
recovery of damages from the Employee.
If
any action at law or equity is necessary to enforce or interpret the terms of
this agreement, the Employee agrees to pay the Company reasonable attorney
fees, costs, and necessary disbursements, in addition to any other relief
and/or damages to which the Company may be entitled.
In
the event that a court of competent jurisdiction determines that this
restrictive covenant and covenant not to compete is unenforceable in whole or
in part for any reason, including, without limitation, the duration, scope and
remedies set forth above, then same shall not be void, but rather shall be
enforced to the extent that same is deemed to be enforceable by said court, as
if originally executed in that form by the parties hereto.
ARTICLE
X: MISCELLANEOUS. Service of all notice under this agreement
shall be sufficient if made by registered mail to the specific party involved
herein at his or her respective address hereinafter set forth or as such party
may provide from time to time in writing:
For
the Company: _______________________
For
the Employee: _______________________
This
agreement constitutes the entire agreement between the parties hereto and
supersedes all prior negotiations, understandings, and agreements, whether oral
or written, of any nature whatsoever, with respect to the term of employment
that is the subject matter hereof, and there are no representations,
warranties, understandings or agreements other than those expressly set forth
herein between the Company and the Employee.
This agreement cannot be changed, modified, or terminated unless, if in
writing, and signed by the parties hereto.
The validity, interpretation, construction and enforcement of this
agreement shall be governed by the laws of the State of
________________________.
The
Company shall have the right, but not the obligation, to assign this agreement
and the Company's rights hereunder in whole, but not in part, to any corporation
or other entity with which the Company may merge or consolidate, or to which
the Company may transfer all, or substantially all, of its assets provided such
corporation or other entity assumes all of the Company's obligations hereunder.
The
Employee understands and acknowledges that his or her employment contract is a
contract for the personal services of the Employee and cannot be assigned.
This
contract is for the personal services of the Employee and shall cease and
desist and be considered null and void upon the termination of the contract
under any of the provisions hereto.
The
invalidity or unenforceability of any particular provision of this agreement
shall not affect the other provisions hereto and the agreement shall be
construed in all respects as though such invalid or unenforceable provision
were omitted.
Any
legal action undertaken by the Employee pursuant to any of the terms or
conditions or the interpretation hereof shall be commenced within six (6)
months of said termination. The
Employee agrees hereby that after a term of six (6) months has expired, no legal
action against the Company may be brought in any court regarding any term or
condition of this agreement.
IN
WITNESS WHEREOF, the parties hereto acknowledge, understand and agree to this
Employment Agreement. The parties
understand and intend to be bound by all of the clauses contained in this
document and further certify that they have received signed copies of this
agreement.
_______________________________ _____________________________
Company
President Employee
