This Commission Agreement ("Agreement") is between ________________________________________ ("Company") and ________________________________________("Agent").
In consideration of the mutual agreements and covenants herein contained, the parties hereto agree as follows:
1. AGENCY: The Company appoints the Agent as its
_____ exclusive agent or _____ non-exclusive agent for the following
2. INDEPENDENT CONTRACTOR: This Agreement shall not render the Agent an employee, partner, or joint venturer with the Company for any purpose. The Agent is and will remain an independent contractor in his or her relationship to the Company. The Company shall not be responsible for withholding taxes with respect to the Agent's compensation hereunder. The Agent shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
3. DUTIES: The following duties shall be required
Agent shall lack authority to bind Company to any agreement or contract until Agent obtains written consent from ________________________________________ [Name of Individual] of the Company.
4. INSURANCE: The Agent will carry liability insurance (including malpractice insurance, if warranted) relative to any service that he or she performs for the Company.
5. COMMISSION: For the Agent's services, the
Company shall pay the Agent the following commission percentage:
________ % of the Agent's total sales.
[Provide additional details if necessary.]
6. EXPENSES: _____ Not applicable or _____ As
part of the compensation to the Agent, the Agent shall also be
reimbursed for the following expenses:
[Describe all expenses for which the Agent may be reimbursed.]
The Company shall not be obligated to reimburse the Agent for any
additional expenses incurred in the performance of services pursuant to
this Agreement unless agreed in writing by the Company in advance.
7. TERM: Unless renewed, this Agreement expires at midnight on ________________________ [date].
8. RENEWAL: _____ Not applicable or _____ This Agreement shall automatically renew for increments of _____ days or _____ one month or _____ one year, unless either party gives ________ days written notice to the other party of his or her intent not to renew. Notice shall be deemed sufficiently given or served if sent by United States certified mail, return receipt requested, addressed as follows:
If to the Company to:
[Typed or Printed Name of Company Representative]
[Company Representative's Address]
If to the Agent to:
[Typed or Printed Name of Agent]
The parties shall each have the right from time to time to change the place notice is to be given under this paragraph by written notice thereof to the other party.
9. EXCLUSIONS: _____ Not applicable or _____ Excluded from this Agreement are all existing written agreements in place at the time of the execution of this Agreement with other agents.
10. MODIFICATION: This Agreement may not be
modified except by amendment reduced to writing and signed by both
Company and Agent. No waiver of this Agreement shall be construed as a
continuing waiver or consent to any subsequent breach thereof.
11. ENTIRE AGREEMENT: This Agreement sets forth the entire agreement and understanding between the parties relating to the subject matter herein and supersedes all prior discussions between the parties. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or changes in the Agent's duties or commission will not affect the validity or scope of this Agreement.
12. GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION: THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF ALABAMA WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. AGENT HEREBY EXPRESSLY CONSENTS TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF ALABAMA FOR ANY LAWSUIT FILED THERE AGAINST THE AGENT BY THE COMPANY ARISING FROM OR RELATING TO THIS AGREEMENT.
13. SEVERABILITY: If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full force and effect.
14. HEADINGS: Section headings are not to be
considered a part of this Agreement and are not intended to be a full
and accurate description of the contents hereof.
15. ATTORNEY FEES: In the event that this
Agreement becomes subject to litigation between the parties hereto, the
parties agree that the prevailing party shall be entitled to an award
of attorney's fees, costs, and the prevailing statutory interest from
the other party.
16. ADDITIONAL ACKNOWLEDGMENTS: Both parties
acknowledge and agree that: (a) the parties are executing this
Agreement voluntarily and without any duress or undue influence; (b)
the parties have carefully read this Agreement and have asked any
questions needed to understand the terms, consequences, and binding
effect of this Agreement and fully understand them; and (c) the parties
have sought the advice of an attorney of their respective choice if so
desired prior to signing this Agreement.
17. FURTHER DOCUMENT: If any other provisions or agreements are necessary to enforce the intent of this document, both parties agree to execute such provisions or agreements upon request.
This Agreement, consisting of ___________ pages, including this page, is entered into this the ____ day of ______________, 20____.
[Signature of Company Representative]
[Typed or Printed Name of Company Representative]
[Signature of Agent]
[Typed or Printed Name of Agent]
STATE OF ALABAMA
COUNTY OF ________________
PERSONALLY came and appeared before me, the undersigned authority, on this day appeared ________________________________________ [Name of Company Representative] and ________________________________________ [Name of Agent], known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the instrument for the purposes and consideration expressed in the instrument.
GIVEN under my hand and seal of office on this the _____ day of
My Commission Expires:
This Agreement is made in [specify State] as of [specify], between [Name of Company], a [specify State] corporation, having its principal place of business at [specify address] (hereinafter called "the Company") and [Sales Representative's Full Legal Name and D/B/A (if different from Legal Name)] having its principal place of business at [specify address] (hereinafter called "Representative").
A. The Company markets various [specify] products in the United States.
B. The Company desires to obtain the services of Representative, and Representative desires to provide services to the Company in accordance with the terms, conditions and covenants set forth in this Agreement. Accordingly, in consideration of the mutual covenants and undertakings set forth herein, the parties hereby agree as follows:
1. Appointment and Acceptance.
A. The Company hereby appoints Representative as one of the Company's independent sales representatives to solicit orders for those [specify] products marketed from time to time by the Company. Representative's appointment shall not be applicable to any other products marketed by the Company.
B. Representative shall solicit orders for Company Products in the geographic territory designated on Exhibit "A" (hereinafter called "the Territory"). Representative shall not solicit orders for Company Products in any other geographic territory. The Company shall have the right, from time to time, at its sole discretion, to change the scope of the Territory. In any such instance, the Company shall issue a new Exhibit "A" to Representative reflecting such change, which shall, as of the effective date stated thereon, supersede the prior Exhibit "A". 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.
C. Notwithstanding anything contained herein, unless specifically authorized by the Company in writing, Representative shall not solicit orders for the Products from any O.E.M. or private label accounts, it being understood and acknowledged by Representative that the Company may solicit orders from such accounts directly (in which case they shall be considered "Reserved Factory Accounts") or may authorize other specially appointed Company sales representatives to solicit orders from such accounts. Further, the Company shall have the right, from time to time, at its sole discretion, to designate other account categories and/or specific accounts within the Territory as accounts which shall be serviced by the Company directly as Reserved Factory Accounts, or by other Company sales representatives, regardless of whether Representative previously has serviced such account categories or accounts on the Company's behalf.
D. Representative hereby accepts its appointment hereunder.
2. Responsibilities of Representative. Representative shall satisfy the following responsibilities at all times during the term of this Agreement:
A. Representative and its staff shall conduct themselves in a manner consistent with the high image, reputation and credibility of the Company and Company Products, and shall engage in no activities which reflect adversely on the Company or the Products.
B. Representative shall use its best efforts to solicit orders for the Products, shall promote the sale of the Products in a diligent and aggressive manner, and shall forward all orders to the Company promptly.
C. Representative shall maintain an office in the Territory which shall be open and staffed adequately during normal business hours. Representative shall employ and maintain adequately trained and competent personnel in numbers sufficient to carry out and perform properly and fully all of Representative's responsibilities under this Agreement.
D. In the event that Representative becomes aware of any actual or potential claim against the Company by any person or entity, Representative shall notify the Company immediately.
E. Representative shall use its best efforts to achieve sales quotas assigned periodically by the Company to Representative. The Company shall have the right to adjust or revise any assigned sales quotas, from time to time, at its sole discretion, by written notice to Representative. Representative understands that sales volume is only one factor which will be considered by the Company in evaluating Representative's performance, and that the achievement of any sales quota(s) shall not preclude the Company from exercising its non-extension or termination rights pursuant to paragraph 14 of this Agreement.
F. Representative shall furnish the Company, on a timely basis, with sales call reports, sales forecasts, and such other information pertinent to Representative's performance hereunder, as the Company may request.
G. Representative shall attend any and all meetings and trade shows required by the Company.
H. Representative shall comply with all applicable federal, state and local laws and regulations in performing its responsibilities hereunder.
I. Representative shall assist the Company in obtaining relevant financial information concerning Company accounts and potential accounts within the Territory.
J. Representative shall keep the Company informed as to competitive and economic conditions within the Territory which may affect the marketing or sales of the Company Products therein.
K. To the extent not otherwise required herein, Representative
shall provide complete cooperation to the Company in order to assist
the Company in maximizing the Company's success within the Territory.
SALES REPRESENTATIVE AGREEMENT
Agreement between ______________________________________________________ (Company) and ______________________________________________________ (Sales Representative).
Sales Representative agrees to:
Represent and sell the Company's [check all that apply:]
______ products ______ services, specifically
in the geographic area of ____________________________________________.
2. Accurately represent and state Company policies to all potential and present customers.
3. Promptly mail in all leads and orders to the Company.
4. Inform the sales manager of all problems concerning Company customers within the sales territory.
5. Inform the sales manager if the Sales Representative is representing, or plans to represent any other business firm. In no event shall sales representative represent a competitive company or product line either within or outside the designated sales area.
6. Maintain contact with the Company via telephone, e-mail, or other agreed upon means of communication with reasonable frequency to discuss sales activity within the territory.
7. Provide company 30-days' notice should the Representative intend to terminate this agreement.
Return promptly all materials and samples provided by the Company to
the Representative, if either party terminates this agreement.
The Company agrees to:
1. Pay the following commissions to the Sales Representative:
__________ percent of all prepaid sales, except as stated below.
(b) __________ percent of all credit sales, except as stated below.
by special arrangement, the following shall not be commissioned:
2. Negotiate in advance of sale the commission’s percentage to be paid on all orders that the Company allows a quantity discount or other trade concession.
3. Provide the Sales Representative with reasonable quantities of business cards, brochures, catalogs, and any product samples required for sales purposes.
4. Set minimum monthly quotas after consultation with the Sales Representative.
5. Grant Representative 30-days' notice should the Company wish to terminate this agreement.
Pay commissions to the Representative on sales from existing customers
for a period of _____________ (____) months after this agreement is
terminated by either party.
In addition, both Parties agree:
Commissions on refunds to customers or merchandise returned by the customer in which a commission has already been paid to the Representative shall be deducted from future commissions to be paid to the Representative by the Company.
This constitutes the entire agreement.
agreement shall be binding upon the parties and their successors and
this _____day of _______________, 20____.
COMPANY: SALES REPRESENTATIVE:
Print Name Print Name
The parties hereto agree as follows:
Distributor shall act as an exclusive distributor of Manufacturer's ______________________________________ as described in attached Exhibit A ("Products") throughout the countries of ________________________________________________ (the "Territory").
1. Distributor agrees to actively and diligently promote the sale of the Products in the Territory during the Term hereof. Manufacturer shall refer to Distributor inquiries for Products in the Territory.
2. Distributor agrees to promote in the Territory the Manufacturer's names and the Products during the Term hereof. Distributor agrees to notify Manufacturer of any leads of interest granted for any products.
III. ASSISTANCE BY MANUFACTURER
Manufacturer agrees to furnish Distributor with reasonable quantities of Manufacturer's catalogs, manuals, advertising literature and other sales aids that may be available by Manufacturer. Any such sales aids provided shall be in English. Manufacturer further agrees to provide Distributor with reasonable home office support and technical assistance upon terms and conditions to be agreed upon from time to time.
IV. INTELLECTUAL PROPERTY RIGHTS
Distributor shall not use Manufacturer's trade names and/or trademarks without the prior, express written consent of Manufacturer. Under no circumstances shall Distributor, at any time, use Manufacturer's trade names, trademarks or other proprietary information as part of Distributor's corporate or trade name. Upon termination of this Agreement, Distributor shall remove all references to Manufacturer from its letterheads, advertising literature and places of business, and shall not thereafter use any similar or deceptive name or trademark intending to give the impression that there is any relationship between the parties.
V. SALES FORCE
Distributor shall maintain a competent and experienced sales force sufficient to adequately serve the Territory.
VI. CUSTOMER SERVICING
Distributor shall maintain in the Territory sufficient inventory of the Products so as to permit filling and shipping against current customer orders normally shipped from Distributor's warehouse stock. Distributor agrees to notify Manufacturer if it opens any new offices or branches or closes or ceases to operate through one of its offices or branches.
VII. ORDERS/ACCEPTANCE/PRICE AND TERMS
1. All orders from Distributor are subject to approval and final acceptance by Manufacturer. Price lists to Distributor shall be as set forth in Exhibit B (as revised from time to time by Manufacturer in its sole discretion) in effect on date of shipment. For nonstandard Products which are sold to Distributor for resale, the price shall be as quoted to Distributor at time of inquiry, provided that the inquiry is within thirty (30) calendar days of order entry.
2. Payment to Manufacturer by Distributor shall be in United States currency. Upon the placing of order(s), Distributor shall cause an irrevocable confirmed letter of credit to be issued by a United States financial institution satisfactory to Manufacturer, in favor of said Manufacturer, unless another arrangement is previously approved in writing by Manufacturer.
VIII. WARRANTY AND FORCE MAJEURE
1. Manufacturer warrants that all Products delivered hereunder shall be of Manufacturer's standard quality. MANUFACTURER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED: THERE ARE NO IMPLIED WARRANTIES INCLUDING WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
2. Manufacturer shall not be liable for damages resulting from delays in shipment or inability to ship due to normal production and shipment delays or those resulting from acts of God, fires, floods, wars, sabotage, accidents, labor disputes or shortages, plant shutdown or equipment failure, voluntary or involuntary compliances with any law, order, rule or regulation of governmental agency or authority; or inability to obtain material (including power and fuel), equipment or transportation, or arising from any other contingency, circumstances or event beyond the control of the Manufacturer.
IX. LIMITATION OF LIABILITY
No claims of any kind, whether as to materials delivered or for nondelivery of materials from Manufacturer, and whether arising in tort or contract, shall be greater in amount than the purchase price of the products in respect of which such damages are claimed; and the failure to give notice of the claim to Manufacturer where the order was placed within sixty (60) calendar days from the date fixed for delivery shall constitute a waiver by Distributor of all claims in respect of such Products. In no event shall Manufacturer be liable for special, indirect or consequential damages. Any claim with respect to defective Products or breach of warranty must be promptly made and shall apply to Products properly used, stored, applied and maintained.
X. RELATIONSHIP BETWEEN MANUFACTURER AND DISTRIBUTOR
Distributor is not an agent, employee or legal representative of Manufacturer, but an independent contractor. Distributor does not have any authority to assume or create any obligation or responsibility on behalf of Manufacturer or bind Manufacturer in any manner whatsoever. The relationship between manufacturer and Distributor is that of vendor and vendee. Distributor further agrees to defend, indemnify and hold Manufacturer harmless from and against any and all claims of third parties that would not have arisen but for an act or omission by Distribution that is contrary to the above-acknowledged relationship or any other term hereof.
1. This Agreement shall become effective as of the date hereof upon execution by an officer or other authorized representative of the Manufacturer in the United States and by an authorized representative of Distributor and shall remain in effect for _________ years thereafter unless previously terminated by either party for any other reason upon not less than thirty (30) calendar days prior written notice to the other party.
2. Without limitation, the following events shall constitute grounds for termination by Manufacturer:
(a) if Distributor shall file or have filed against it a petition in bankruptcy or insolvency or if Distributor shall make an assignment for benefit of its creditors of if Distributor's viability as a going concern should, in Manufacturer's judgment, become impaired;
(b) if Distributor fails to provide and maintain a proper and sufficient sales force;
(c) if Distributor degrades and places in bad repute the name and reputation of Manufacturer expressly or by virtue of its methods of handling and/or promoting the Products;
(d) if Distributor fails to meet any other of its obligations hereunder; or
(e) if Distributor fails to meet minimum purchase goals, as defined in Exhibit C.
3. Except as may be otherwise determined pursuant to the laws of the jurisdiction where Distributor has its principle office, Manufacturer shall have no liability to Distributor by any reason of any termination or cancellation of this Agreement by Manufacturer, including without limitation, liability for direct or indirect damages on account of loss of income arising from anticipated sales, compensation, or for expenditures, investments, leases or other commitments or for loss of goodwill or business opportunity or otherwise.
4. Upon termination by either Manufacturer of Distributor, Manufacturer shall have the option of buying back from Distributor any new unsold Products purchased from Manufacturer, at the prices charged to Distributor, less Manufacturer's then applicable restocking charge, if any, and less any additional expenses incurred by Manufacturer arising out of termination by Distributor
All information transferred or otherwise revealed to Distributor by Manufacturer under this Agreement, including but not limited to, engineering information, manufacturing information, technology, know-how and price books or lists, will at all times remain Manufacturer's property. Distributor shall at all times hold such information confidential and shall not disclose any such information if not otherwise within the public domain. Upon any termination of this Agreement, or as Manufacturer directs from time to time, Distributor shall promptly return all such information to Manufacturer, together with any copies or reproductions thereof. Distributor's obligations under this section shall survive any termination of the Agreement.
XIII. CERTAIN PRACTICES
Distributor acknowledges that certain laws of the United States applicable to the Manufacturer, but which may not be applicable to Distributor, impose fines or penalties on Manufacturer in the event Manufacturer makes payments to foreign government officials for the purpose of influencing those officials in making a business decision favorable to Manufacturer. In addition, Manufacturer and Distributor may be subject to similar laws or requirements of the country of destination of the Products.
Distributor agrees upon reasonable request by Manufacturer to give Manufacturer reasonable written assurance that the Distributor has done nothing to cause liability to Manufacturer under the above-mentioned laws.
All notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been served or delivered
1. when personally served or delivered to one party by the serving or delivering party; or
2. when deposited in the mail, postage prepaid by the serving or delivering party addressed to the other party as follows:
If to Manufacturer:
If to Distributor:
This Agreement constitutes the entire and only agreement between the Manufacturer and Distributor with respect to its subject matter and there are no understandings or representations of any kind, express, implied, oral, written statutory or otherwise, not expressly set forth herein. No alteration or modification of this Agreement shall be binding unless in writing and signed by the party to be bound thereby.
1. This Agreement is not assignable in whole or in part by either party without express written consent of the other.
2. If Distributor consists of either two or more individuals or partners, each shall execute this Agreement on behalf of Distributor and each individual signing shall be jointly and severally liable to Manufacturer with respect to the obligations of Distributor under this Agreement.
3. This Agreement shall be interpreted and enforced in accordance with the laws of the United States of America and the official language of this Agreement for all purposes shall be English.
Distributor Price List
A. In the performance of their obligations under this Agreement, Agent shall comply strictly with all laws, regulations, orders and policies having the force of law, of _____________________________, and where applicable, all laws, regulations, orders and policies having the force of law of any other jurisdiction, including without limitation, the United States of America.
B. In furtherance of the Agent's obligations hereunder, the Agent represents, warrants and agrees that, in connection with the performance of its duties hereunder, it shall not make any payments, in money or any other item of value or make any offers or promises to pay any money or any other item of value to (a) any government official, (b) any foreign political party, (c) any candidate for foreign political officer or (d) any other person or entity, with the knowledge that such payment, offer or promise to pay will be made to any government official for the purpose of influencing such government official to make one or more business decisions favorable to Principal, Agent, or both.
C. Agent further represents that no government official is a principal, owner, officer, employee or agent of any entity in which Agent has an interest, and no government official has any material financial interest in the business of the Agent.
D. In the event of any breach by Agent of any of its representations, warranties or covenants contained in this Article, Principal may, in its sole discretion in addition to any other remedy provided herein or otherwise provided by law, immediately terminate this Agreement without notice or indemnity and in such event, Agent shall forever forfeit all rights to all fees and commissions which shall accrue and/or have been earned but which have not been paid as of the date of such termination.
Notwithstanding the provisions set forth above in Article ____, Agent shall indemnify and hold harmless Principal against and from any claim,, loss, damage or expense (including attorneys' fees and disbursements) (a) arising from any breach by Agent of any representation, warranty, covenant or other obligation of Agent under Article ____ of this Agreement, (b) resulting from any unlawful act committed by Agent or any agent of Agent thereof, or (c) which Principal may sustain by reason of any act, omission or misrepresentation of Agent or Supervisor or any agent thereof.