opticon10q33109x10g3_51409.htm


    
 

    Exhibit
10.G.03

     

    EXCLUSIVE
SALES REPRESENTATIVE AGREEMENT

     

     

    This
Exclusive Sale Sales Representative Agreement is made this 10th day of February,
2009, by and between OptiCon Systems, Inc., a Nevada, U.S.A. corporation
with its principal place of business at 449 Central Ave, Suite 101, St.
Petersburg, FL 33701 U.S.A. (the “Company"), and Mfumo Networking Solutions, a
South Africa corporation with its principal place of business at 68 Cranbourne
Avenue, Benoni, South Africa 1550 ("Sales Representative").

     

     

    WHEREAS, the Company offers a network
management solution for physical and logical layer management and fault
detection, including on fiber-optic systems, via software, professional
services, and integrated systems; and

     

     

    WHEREAS, Sales Representative desires
to sell the Company's Products and services in accordance with the terms and
conditions of this Agreement.

     

     

    NOW THEREFORE, in consideration of
the covenants set forth below, and other good and valuable consideration, the
adequacy, sufficiency and receipt of which is hereby acknowledged, the parties
hereby agree as follows:

     

    1.           Definitions.

     

      As
used herein:

     

    1.1           "Products" shall mean
Company products, software, accessories and services offered by the Company for
sale in the Territory which are listed in Exhibit A attached hereto, as the
same may be amended or modified from time to time by the Company in its sole
discretion.

     

    1.2           "Territory" shall mean
the geographical area, specified prospects/customers or areas described in
Exhibit B attached hereto, as the same may be amended or modified from time
to time by duly authorized representatives of the parties hereto in
writing.

     

    1.3           "Net Billings" shall
mean all amounts invoiced in respect to the sale of Products actually provided
to a customer, less actual discounts, credits, refunds and allowances made,
freight, transportation, C.O.D., insurance and similar charges, manufacturer's
warranty charges, and any applicable sales, use or other similar
taxes.  The payment for the Company’s Products shall be nominated in
U.S. Dollars.

     

    1.4           "Bookings" shall mean
orders from customers that have been received, acknowledged and accepted by the
Company and scheduled to be provided to the customer.

     

    1.5           "Commissions" shall
mean Sales Representative's compen­sation for performance of its duties
hereunder at the rates set forth in Article 2.5 of this Agreement, as the same
may be amended or modified from time to time by the Company in its sole
discretion by giving at least thirty (30) days’ prior written notice to Sales
Representative before such change becomes effective.  The new
commission rates shall apply to all orders received or dated after the effective
date of such notification.  Payment of commissions shall be nominated
in the local currency of the Sales Representative, net of banking
charges.

     

    1.6           "House Accounts" shall
mean those customers for or purchasers of the Company Products which are located
within the Territory and which are designated from time to time in writing by
the Company as House Accounts.  House Accounts designated by the
Company at the time of execution of this Agreement are set forth in
Exhibit B attached hereto. The Company may in its sole discretion designate
other customers as House Accounts by giving Sales Representative at least ten
(10) days prior written notice of such designation before such designation
becomes effective.

     

    1.7           "Regular Accounts"
shall mean those customers for purchasers of the Company Products which are not
defined in Article 1.6 above and shall be serviced by the Sales
Representative.

     

    1.8           "Industrial
Distributor" shall mean those persons, firms or organizations purchasing
the Company Products for resale to customers in the Territory (excluding House
Accounts) in accordance with distributorship agreements entered into from time
to time with the Company.

     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    


     

    1.9           "Confidential
Information" shall mean all informa­tion made available by the
Company to Sales Representative, its agents or employees, in connection with
this Agreement which the Company protects against unrestricted disclosure to
others and which:  (i) if in written or other tangible form, is
clearly designated as "Confidential"; or (ii) if disclosed orally, is
designated as "Confidential" in a written memorandum delivered by the Company
promptly following such oral disclosure.  By way of illustration, but
no limitation, Confidential Information may include proprietary technical data
and concepts, vendor and customer information, financial information and
marketing data.

     

    2.           Appointment.


     

    2.1           The
Company hereby appoints Sales Representative as the Company’s Exclusive Sales
Representative to solicit orders for Products in the Territory from governmental
and municipal entities, and on a non-exclusive basis to private and corporate
accounts, and Sales Representative hereby accepts such appointment, subject to
the terms and conditions of this Agreement.  Notwithstanding the
foregoing, the Company reserves the right, during the term of this Agreement, to
sell Products directly to House Accounts without paying Commissions to Sales
Representative.

     

    2.2           Solicitation of
Orders.

     

    (a)           Sales
Representative agrees to use its diligent and best efforts to solicit orders and
promote sales of Products in the Territory and to devote such time and effort to
such activities as is reasonably necessary to provide coverage for existing and
potential accounts within the Territory on a regular basis, consistent with good
business practices.

    (b)           Sales
Representative shall solicit orders for Products at such prices, and on such
other terms and conditions, as may be established by the Company from time to
time.  All quotations for Products must be based upon the Company's
published prices and standard terms and conditions as then in effect, unless
deviations there from have been approved in advance by the
Company.  Current Product prices can be found in Exhibit C. No
quotation will be valid for a period of more than thirty (30) days unless
otherwise approved in advance by the Company.  Sales Representative
will provide to the Company copies of all quotations and correspondence with
customers and potential customers.

    (c)           All
Purchase Orders solicited by Sales Representative are subject to written
acceptance by an officer or other authorized employee of the Company, and no
Purchase Order shall be binding upon the Company until so
accepted.  All orders will be accepted only in accordance with the
Company's Standard Terms and Conditions of Sale.  The Company reserves
the right to alter or amend its Standard Terms and Conditions of Sale at any
time and such revised Standard Terms and Conditions of Sale shall be used for
all sales after the effective date of such revisions.  Sales
Representative agrees that it shall have no authority to accept any order,
assume, create or modify any agreement or obligation or authorize any allowance,
adjustment or return of Products on behalf of the Company and shall so advise
all customers and potential customers with whom it deals.

    (d)           The
Company shall have the right to change its standard price list at any time and
from time to time during the term of this Agreement, provided that the Company
shall give Sales Representative thirty (30) days' advance notice of any such
price change.  No price change shall be effective for Products covered
by a Purchase Order accepted by the Company prior to the effective date of such
price change.  The price of all Products shall include the cost of
standard packaging in accordance with the Company's standard commercial
practices.  All freight, insurance, shipping and non-standard
packaging expense shall be borne by and invoiced to the customer unless
otherwise specified in the Company’s quotation.


     

    2.3           Other Duties of Sales
Representative.

     

      During
the term of this Agreement, Sales Representative agrees as follows:

     

    (a)           Sales
Representative shall maintain at least one office in the Territory which shall
be continually open and adequately staffed during normal business
hours.  Sales Representative shall employ an adequate number of
qualified sales personnel, at such compensation and on such other conditions as
Sales Representative may deem appropriate, in order to enable Sales
Representative to discharge its duties hereunder;

    (b)           Upon
request of the Company, Sales Representative agrees to undertake, at Sales
Representative's expense, those administrative functions the Company deems
reasonably required for proper management of the sales activity, including, but
not limited to:

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    


    (i)           Attendance
of sales personnel at Regional Sales Conferences for the region in which the
Territory is located and at National Sales Conferences.

    (ii)           Submission
of rolling three-month forecasts of bookings and billings forecasts to the
Company as requested by the Company.

    (iii)           Submission
of annual sales forecasts.

    (iv)           Submission
of customer contact reports on a regular basis.

    (c)           Sales
Representative shall obtain, and regularly report to the
Company,  information concerning existing and potential markets for
existing Products, as well as customer interest in potential new or modified
Products within the Company's field of operations;

    (d)           Sales
Representative shall cooperate with and assist the Company in implementing such
promotional and merchandising campaigns as the Company may from time to time
undertake;

    (e)           Sales
Representative shall regularly report to the Company regarding activities of the
Company's competitors of which Sales Representative becomes aware during the
course of Sales Representative's services hereunder;

    (f)           Sales
Representative shall properly store and maintain all Products and other property
of the Company which may be supplied to Sales Representative on consignment, for
demonstration purposes or otherwise, and shall return the same to the Company in
good condition (reasonable wear and tear excepted) upon the termination of this
Agreement or the Company's request therefore.  Sales Representative
shall be responsible for normal maintenance of all demonstration units and
responsible for any loss or shortage when they are located in the
Territory.  Sales Representative shall keep appropriate and adequate
records of any Products or other property of the Company shipped to and from its
premises under its control or direction, and shall maintain suitable warehousing
facilities where required.  The Company shall have the right, on
request, to examine and/or audit all records pertaining thereto and to conduct a
physical inventory on reasonable notice;

    (g)           Sales
Representative shall promptly notify the Company of any complaint or claim made
or brought against Sales Representative or the Company with respect to any
Product;

    (h)           Sales
Representative shall promptly notify the Company of all inquiries regarding
Products received by Sales Representative from sources outside the
Territory;

    (i)           Sales
Representative shall avoid any actual or potential conflict of interest with its
duties to the Company hereunder.  Sales Representative shall not
represent any other manufacturer or supplier of equipment competitive with the
Products without the prior written consent of the Company; and

    


    2.4           Duties of the
Company.

      During
the term of this Agreement, the Company agrees as follows:

    (a)           The
Company shall provide Sales Representative with current technical information
regarding the Products; and

     

    (b)           the
Company shall furnish to Sales Representative, without charge, reasonable
quantities of promotional sales literature and brochures, catalogue sheets,
price lists and engineering data and such other information and sales aids as,
in the Company's opinion, are appropriate for use by Sales Representative in
soliciting the sale of Products hereunder, which materials may be used by Sales
Representative solely to support its sales activities on the Company's
behalf.

     

    2.5           Commissions.

     

    Hereunder,
the Company shall pay Commissions to Sales Representative of 15% on (i) the Net
Billings directly invoiced by the Company with respect to sales of Products to
Regular Account customers located in the Territory, and (ii) the Net Billings
invoiced by the Company's Industrial Distributors with respect to sales of
Products for shipment to Regular Account customers of Sales Representative
located in the Territory, but excluding in each case Net Billings with respect
to sales of Products to House Accounts.

     

    (a)           Commission
payments with respect to sales of Products shall be paid within 30 days of
receipt.

    (b)           There
shall be deducted from any Commission payment due Sales Representative an amount
equal to the total of: (i) any Commissions previously paid in respect to
sales of Products which have subsequently been returned; and (ii) a pro
rata portion of any Commissions previously paid in respect to Products upon
which refunds or credits have subsequently been allowed by the
Company.

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    


    (c)           Each
Commission payment shall be accompanied by a statement setting forth in
reasonable detail the computation of the Commissions being paid, and any
deductions thereto for identifying invoices by number.

    (d)           Commissions
shall not accrue or be payable on orders or shipments for any non-production
items, such as experimental samples, tools or equipment, development or
experimental products, special testing equipment or any similar equipment,
paperwork, or for non-recurring engineering or technology transfer charges,
royalties or license fees.

    (e)           If
this Agreement is terminated by either party, Commissions shall thereafter be
determined and payable in accordance with Article 5.

    (f)           Any
claim or dispute Sales Representative may have, which is related to or arises
out of the payment of Commissions hereunder shall be submitted to the Company in
writing within thirty (30) days after Sales Representative knows of, or has
reason to know of, the basis for the claim or dispute.  Failure to
give notice shall relieve the Company from any and all liability for such claim
or dispute.  The provisions of this subsection shall survive the
termination of this Agreement.

    


    3.           Warranties and Limitations
of Liability.

               The
Company shall provide to customers solicited by Sales Representative only such
limited product warranties as are contained in its Standard Terms and Conditions
of Sale, as modified from time to time.  Sales Representative shall
make no representations or warranties to customers or potential customers
inconsistent with or in addition to those contained in such terms and
conditions.

     

    4.           Confidential Information and
Trademarks.

     

    4.1           Proprietary
Rights.

     

      Sales
Representative agrees that the Company retains proprietary rights in and to all
product specifications, designs, engineering details, discoveries, inventions,
patents, trade secrets and other proprietary rights relating to the Products
(the "Proprietary Information").  The Products are offered for sale
and are sold by the Company subject in every case to the condition that such
sale does not convey any license, expressly or by implication or otherwise, to
manufacture, duplicate or otherwise copy or reproduce any of the
Products.

     

    4.2           Protection of Confidential
Information.

     

      Sales
Representative agrees to protect the confidentiality of all Confidential
Information (including without limitation the Proprietary Information) with the
same degree of care as Sales Representative accords to Sales Representative's
own confidential and proprietary information and to use such Confidential
Information only for purposes related to this Agreement; provided, however, that
Sales Representative shall not be obligated to treat information as Confidential
Information, if such information:

     

    (a)           Was
rightfully in Sales Representative's posses­sion, or rightfully known to
Sales Representative, prior to its receipt from the Company; or

    (b)           Is
or becomes public knowledge without the fault of Sales Representative;
or

    (c)           Is
or becomes rightfully available to Sales Representative without confidential
restriction from a source having no duty of confidentiality to the
Company.

    


    4.3           Continuation of
Obligations.

      The
obligations imposed by Article 4.2 shall continue during the term of this
Agreement and for a period of two (2) years thereafter.  Upon
termination of this Agreement, Sales Representative will return to the Company,
within thirty (30) days, all Confidential Information in written or other
tangible form, and all reproductions, copies, extracts or summaries thereof, in
its possession.

    


    4.4           Trademarks.

      The
Company hereby grants Sales Representative the right to use the Company's
trademarks solely in connection with the solicitation of orders for Products
hereunder and for such other purposes as may be approved in advance by the
Company.  Sales Representative acknowledges that such trademarks are
and shall remain the sole property of the Company.  Sales
Representative shall not do or suffer to be done any act or thing that will in
any way impair the rights of the Company in and to any the Company
trademark.  Sales Representative agrees not to use or register for use
any name or mark confusingly similar to any trademark of the
Company.  Upon termination of this Agreement for any reason, Sales
Representative agrees to discontinue use of all the Company
trademarks.

    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    5.           Term and
Termination.

     

    5.1           Term.

     

      Unless
terminated sooner as herein provided, the term of this Agreement shall be for a
period of twelve (12) months from the date of this Agreement (Initial
Term).  If no notice of termination as otherwise provided in this
Article, this Agreement will be automatically renewed for additional twelve (12)
month terms, subject to conditions in Exhibit B.

     

    5.2           Termination by the Company
for Cause.

     

      This
Agreement may be immediately terminated by the Company upon the breach or
default by Sales Representative of any of the material terms, obligations,
covenants, representations or warranties contained herein, including, without
limitation, Sales Representative's misuse of Confidential Information or the
engagement in activities competitive with the sale of Products by the Company,
by giving written notice of termination and specifying such breach or
default.  Sales Representative shall not be entitled to receive any
Commission payments after termination of this Agreement by the Company for
cause.

     

    5.3           Termination Without
Cause.

     

      This
Agreement may be terminated by either of the parties without cause upon written
notice to the other party given at least thirty (30) days prior to the effective
date of termination stated in the notice.  In such event, Sales
Representative shall receive Commissions only on Bookings made directly through
Sales Representative prior to the date of termination, which result in payments
made within six (6) months after the date of termination.

     

               5.4     Resignation.  In
the event Sales agent resigns and no longer perform duties as a sales agent,
commissions would be paid on the projects closed at the time of termination.
Commissions on projects in progress will not be paid if they close after
termination date. However, commissions on projects closed, but payments not yet
received will be paid within 30 days of receipt of payment even if it is after
termination date.

     

    6.           Miscellaneous.


     

    6.1           Nature of
Relationship.

     

      Sales
Representative shall at all times during the performance of its services
hereunder be an independent contractor, maintaining sole and exclusive control
over its business, operations and employees.  Except as specifically
provided herein, all expenses and disbursements, including, but not limited to,
those for travel, entertainment, office, clerical, insurance, employee
compensation and general selling expenses, that may be incurred by Sales
Representative in connection with this Agreement shall be borne wholly and
completely by Sales Representative, and the Company shall be in no way
responsible or liable therefore. Except as specifically provided herein, neither
party shall have, or shall hold itself or himself out as having, any right,
power or authority to create any contract or obligation, either express or
implied, on behalf of, in the name of, or binding upon the other or to pledge
the other's credit or to extend credit in the other's name.

     

    6.2           Public
Announcements.  The Company and the Sales Representative will
have the right to publicly announce in press releases, radio, online or TV
interviews significant developments related to the Agreement.  Each
Party hereto shall use its best efforts to provide the other Party the text of
all public announcements.

     

    6.3           Notices.

     

      All
notices and other communications required or permitted hereunder shall be in
writing and shall be deemed effectively given upon personal delivery or on the
day sent by facsimile transmission if a true and correct copy is sent the same
day by first class mail, postage prepaid, or by dispatch by an internationally
recognized express courier service, to the proper parties at the appropriate
business addresses.

     

    6.4.1  
Damages.

     

    The
Company shall not be liable for any losses, injuries, damages or claims of any
nature whatsoever arising from the negligence or fault, whether intentional or
negligent, of Sales Representative, its employees or agents, which Sales
Representative may be subject to or incur as a result of any of its activities
in connection with this Agreement.  Sales Representative will carry
adequate business insurance, at its own expense, to cover such contingencies and
will, upon request, submit proof thereof to the Company's satisfaction. 
Sales Representative shall indemnify and hold the Company harmless from any
claims, injuries, damages or losses for property damage, personal injury, or any
other liability arising from the negligence or fault, whether intentional or
negligent, of Sales Representative, its employees or agents.

     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    


     

    6.4.2  
The Company liability under this Agreement shall be limited to losses, injuries,
damages or claims which Sales Representative may be subject to or incur as a
result of the negligence or fault of the Company and / or any of its employees
and/or agents and/or suppliers, including manufacturing defects or faults in any
of the products.

     

    6.4.3  
The Company shall indemnify and hold the Sales Representative harmless from any
claims or losses for property damage, personal injury, or any other liability
arising from the above stated in art 6.3.2.

     

     6.5           Headings.

     

      The
headings of the several sections of this Agreement are inserted for the
convenience of reference only and are not intended to affect the meaning or
interpretation of this Agreement.

     

    6.6           Counterparts.

     

      This
Agreement may be executed in counterparts, and delivery of a signed counterpart
by facsimile shall constitute valid execution and delivery of this
Agreement.

     

    6.7           Assignment.

     

      Neither
this Agreement, nor any rights or obligations hereunder may be assigned,
delegated or transferred in any manner by Sales Representative without the prior
written consent of the Company.  This Agreement shall bind and inure
to the benefit of any successors or assigns of the Company and to any permitted
successors or assigns of Sales Representative.

     

    6.8           Entire
Agreement.

     

      This
Agreement, including Exhibits A and B hereto, constitutes the entire agreement
between the parties pertaining to the subject matter contained herein and
supersedes all prior and contemporaneous negotiations, representations,
agreements and understandings of the parties.  Except for amendments
or modifications permitted to be made by the Company in its sole discretion, no
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by the party sought to be bound.

     

    6.9           Applicable
Law.

     

      This
Agreement shall be governed by and construed and interpreted in accordance with
the laws of the State of Nevada without regard to any principles governing
conflicts of laws.  Any action or proceeding brought under or arising
out of this Agreement shall be litigated or brought in an appropriate state or
federal court in the State of Nevada.  The trade terms under this
Agreement shall be governed by and interpreted in accordance with the provisions
of the Uniform Commercial Code, as adopted in the State of Nevada, and shall not
be subject to or governed by the United Nations Convention on Contracts for the
International Sale of Goods.

     

    6.10           Severability.

     

      Should
any provision of this Agreement be determined to be invalid, it should be
severed from this Agreement and the remaining provisions of this Agreement shall
remain in full force and effect.

     

    6.11           Non-Waiver.

     

      The
failure of either party to enforce at any time any provision or provisions of
this Agreement shall in no way be considered to be a waiver of such provision or
provisions, nor shall such failure affect the validity of this Agreement in any
way.  The failure of either party to exercise any such provision or
provisions shall not be construed as a waiver of any continuing or succeeding
breach of such provision, a waiver of the provision itself, or a waiver of any
other right under this Agreement.

     

    6.12           Attorneys'
Fees.

     

      In
the event of any action or proceeding brought by one party against the other
concerning this Agreement, whether for declaratory or other relief, the
prevailing party shall be entitled, in addition to any other rights and remedies
it may have, to reimbursement for its expenses incurred thereby, including court
costs and reasonable attorneys' fees.

     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


     

    IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.

     

    OptiCon
Systems,
Inc.                                                                           Mfumo
Networking Solutions

    


    


    
      
        	
                /s/ Sam Talari

              	
                /s/ Phil Mabunda

              
	
                Sam
      Talari

              	
                Name:
      Phil Mabunda

              
	
                Chairman
      of the Board

              	
                Position:
      Chief Executive Officer

              
	
                C:  (727)
      417-9338

              	
                C :
      27 83 299-0573

              
	
                P:  (817)
      305-0628

              	
                P:  27
      11 845-3322

              
	
                F:
      (813) 354-2739

              	
                F:  27
      11 845-1882

              
	
                E:
      talari@futuretechcapital.com

              	
                E:  phil@mfumonetworking.co.za

              


      

    

    


     

    (Signature
Page Mfumo Networking Solutions/Opticon Systems, Inc. dated
10th February, 2009)

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

    EXHIBIT
A

     

    


     

    
      	
               
      

            	
              I.

            	
              PRODUCTS:

            


    

     

      The
Company products covered by this Agreement are listed below, but not limited
to:

     

    
      	
               
      

            	
              i.

            	
              OptiCon
      Network ManagerTM Version R-3.0.0.1

            


    

     

    
      	
               
      

            	
              ii.

            	
              OptiCon
      Maintenance Contracts

            


    

     

    


     

    EXHIBIT
B

     

    
      	
               
      

            	
              I.

            	
              TERRITORY/ACCOUNTS:

            


    

     

     The
following Territory/Account(s) is/are hereby assigned to Sales Representative
for the sale of the Company Products as described in this
Agreement:

     

    
      	
               
      

            	
              i.

            	
              Territory:  Republic
      of South Africa

            


    

     

    
      	
               
      

            	
              ii.

            	
              Other
      Territories/Accounts:  Subject to pre-approval by the
      Company.

            


    

     

    
      	
               
      

            	
              II.

            	
              HOUSE
      ACCOUNTS:

            


    

     

     Excluded
from commission payable for sales in the Territory/Accounts are sales to the
following House Accounts:

     

    No exclusions

     

    
      	
               
      

            	
              III.

            	
              EXCLUSIVE
      TERRITORY/ACCOUNTS:

            


    

     

     The
Company assigns Exclusive Accounts by customer. When a sales representative
introduces a potential customer to the Company by providing his name, position
and title, the organization that he is affiliated with and his email address or
telephone number and address, the Company provides approval to the
Representative in writing and the potential customer is then entered into our
data base. Once this information is presented to the Company this customer is
designated as the Sales Representative’s Exclusive Account with the Company as
long as this agreement is in effect, provided that this account places an order
with the Company within the 12 month period after the
registration.  If the account has not placed an order within the
twelve month period, the customer must be reregistered with the Company for
another 12 month period.  Exhibit B shall be updated from time to time
to list the Sales Representative’s Exclusive Accounts.

     

    
      	
               
      

            	
              IV.

            	
              REFERRING
      AGENT:  Develco cc