Sales Agency Agreement - Template, Sample Form Online Pro · UK-law

COMMERCIAL (SALES) AGENCY AGREEMENT

This Agreement is made on ________

PARTIES

(1) ________, a company incorporated in England and Wales (Company Number ________) whose registered office and address for the service of proceedings is ________ (the Principal); and

(2) ________, a company incorporated in England and Wales (Company Number ________) whose registered office and address for the service of proceedings is ________ (the Agent),

each a party and together the parties.

BACKGROUND

(A) The Principal manufactures and/or supplies the Products and wishes to appoint the Agent to negotiate (and, where authorised, conclude) the sale of the Products in the Territory.

(B) The parties acknowledge that the Agent is a commercial agent and that this Agreement is governed by the Commercial Agents (Council Directive) Regulations 1993 (the Regulations) to the extent that they apply.

§ 1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement, unless the context otherwise requires:

(a) Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

(b) Commencement Date has the meaning given in § 3.1;

(c) Confidential Information means all information of a confidential nature (in whatever form) disclosed by one party to the other concerning its business, affairs, customers, clients, suppliers, products, pricing or methods of operation;

(d) Customer means any person, firm or company to whom Products are or may be sold;

(e) Products means the products of the Principal described in Schedule 1, as amended from time to time;

(f) Territory means ________;

(g) Term has the meaning given in § 4; and

(h) Year means each period of 12 months commencing on the Commencement Date or any anniversary of it.

1.2 In this Agreement, unless the context clearly indicates another intention:

(a) reference to one gender includes all other genders;

(b) reference to the singular includes the plural and vice versa;

(c) reference to a clause, schedule or party is a reference to a clause of, or a schedule or party to, this Agreement;

(d) obligations undertaken by more than one person or company are joint and several;

(e) reference to a statutory provision is a reference to that provision as amended, modified or re-enacted from time to time and to any subordinate legislation made under it;

(f) reference to a document is a reference to that document as from time to time supplemented or varied;

(g) reference to writing includes email and similar means of communication;

(h) a number of days shall be reckoned exclusively of the first day and inclusively of the last day, unless the last day is not a Business Day in which case the last day shall be the next succeeding Business Day; and

(i) any reference to a person includes natural persons, partnerships, firms, corporate bodies and all other legal persons however constituted.

1.3 The schedules form part of this Agreement and any reference to this Agreement includes the schedules, appendices, annexes and recitals (if any).

§ 2. STATUS OF THE AGENT

2.1 The Agent is engaged as a commercial agent within the meaning of the Regulations and is an independent contractor. Nothing in this Agreement creates a relationship of employer and employee, partnership or joint venture between the parties.

2.2 The Agent shall not have any authority to incur any obligation on behalf of the Principal except as expressly provided for in this Agreement.

§ 3. APPOINTMENT

3.1 The Principal appoints the Agent, with effect from ________ (the Commencement Date), to be its non-exclusive agent for the negotiation and (where authorised) the sale of the Products in the Territory, on the terms of this Agreement.

3.2 The Agent accepts the appointment on those terms.

§ 4. TERM

This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with § 13, until terminated by either party giving written notice in accordance with § 13.1 (the Term).

§ 5. DUTIES OF THE PRINCIPAL

The Principal shall, in accordance with Regulation 4 of the Regulations and otherwise:

(a) act dutifully and in good faith towards the Agent;

(b) provide the Agent with all necessary information and documentation relating to the Products;

(c) provide the Agent with such samples, catalogues and other materials reasonably necessary for the performance of its duties;

(d) perform any contracts for the sale of the Products properly concluded by the Agent in accordance with this Agreement;

(e) pay to the Agent all commission properly due in accordance with § 8;

(f) provide on request all information available to the Principal and necessary for the Agent to verify the commission due;

(g) inform the Agent within a reasonable time of its acceptance or refusal of, and of any non-execution of, any commercial transaction procured by the Agent;

(h) notify the Agent within a reasonable time once it anticipates that the volume of commercial transactions will be significantly lower than the Agent could normally have expected;

(i) inform the Agent promptly of any supply difficulties, price alterations or changes to the terms of business;

(j) inform the Agent without delay where it is only able or willing to fulfil a substantially smaller volume of orders than those negotiated by the Agent;

(k) deal with any after-sales Customer enquiry or complaint; and

(l) respond promptly to any reasonable request by the Agent for marketing or advertising materials, the reasonable cost of which (not exceeding the cost reasonably likely to be incurred by the Principal) may be required from the Agent in advance.

§ 6. RIGHTS AND DUTIES OF THE AGENT

In accordance with Regulation 3 of the Regulations and otherwise, the Agent shall:

(a) during the Term diligently and faithfully serve the Principal and use its best endeavours to promote the sale of the Products, and not do anything that may prevent such sale or interfere with the development of the Principal's trade;

(b) warrant that it is, and will remain throughout the Term, a sales intermediary engaged wholly or mainly in the activities and duties of a commercial agent;

(c) not, during the Term, sell, offer to sell or negotiate the sale of goods of a similar description to the Products, or of such kind as would or might compete with the Products, whether on its own behalf or on behalf of any other person, without first obtaining the written consent of the Principal;

(d) in all negotiations and dealings with Customers, prospective Customers and any third party, disclose that it acts as agent of the Principal to the extent provided for in this Agreement;

(e) upon receipt of any order for the Products, immediately transmit the order to the Principal who, if it accepts the order, shall supply the goods direct to the Customer;

(f) have authority to negotiate and conclude contracts for the sale of the Products on behalf of the Principal only where the terms of sale are in accordance with the Principal's terms and conditions of sale;

(g) acknowledge that the Principal may refuse to accept or execute any order, or part of an order, obtained by the Agent without giving a reason, and that no commission shall be payable in respect of any order or part order so refused;

(h) not hold stocks of the Products, but the Principal shall provide such sample cases and catalogues as may be necessary, all of which shall remain the property of the Principal and be returned by the Agent on termination of this Agreement;

(i) not in any way pledge the credit of the Principal or hold itself out as having the right to do so;

(j) not modify the Products or their packaging;

(k) not use marketing, promotional or sales materials not approved by the Principal;

(l) promptly inform the Principal of any after-sales enquiry or complaint concerning the Products;

(m) not seek orders at prices other than those notified by the Principal from time to time;

(n) at the end of each ________ supply the Principal with a written account of its activities during that period and its plans for promoting sales of the Products;

(o) bear all costs and expenses incurred in performing its obligations under this Agreement, except expenses incurred at the specific request of the Principal and authorised in advance in writing; and

(p) take instructions from the Principal as to how best to serve the needs in the Territory of any Customers designated by the Principal as global accounts, major accounts or similar.

§ 7. RECORD KEEPING

Each party shall:

(a) keep records of the matters referred to in this Agreement during the Term and for ________ years from termination, however occurring;

(b) allow the other party to inspect and copy them during normal hours on Business Days, limited to four times per Year (unless an error of more than ten percent is discovered, when that limit shall not apply); and

(c) supply to the other on request all information needed to verify orders taken, contracts concluded or commission payments due, including extracts from the supplying party's books or other documents.

§ 8. COMMISSION

8.1 The remuneration of the Agent shall be ________% (________ percent) of the net sale price of all Products in respect of which the Agent has concluded transactions in accordance with this Agreement.

8.2 The net sale price means the price charged to Customers for the Products, excluding (where applicable) VAT and any other similar and obligatory sales taxes.

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8.4 In accordance with Regulation 10 of the Regulations, commission shall become due as soon as the earliest of the following occurs:

(a) the Principal has executed the transaction;

(b) the Principal should, according to its agreement with the Customer, have executed the transaction;

(c) the Customer has executed the transaction; or

(d) the Customer should have executed the transaction had the Principal executed its part.

8.5 Where a sales contract provides for payment by instalments, the Agent shall be paid pro rata as and when each instalment is paid to the Principal.

8.6 Commission shall be paid no later than the last day of the month following the quarter in which it became due, and a commission statement setting out the main components used in calculating it shall be supplied with each payment.

8.7 Commission shall not be payable, and any commission already paid shall be refunded, if and to the extent that the contract between the Customer and the Principal is not executed for a reason for which the Principal is not responsible.

§ 9. INTELLECTUAL PROPERTY RIGHTS

9.1 Intellectual Property means any asset, concept or idea created by either party, including all copyrights, patents, designs, database rights, trade marks and trade names (whether registered or unregistered).

9.2 The Principal grants to the Agent a non-exclusive, non-transferable, revocable licence to use the Principal's Intellectual Property only so far as necessary to perform its obligations under this Agreement, on the following terms:

(a) the Agent shall only use the Principal's Intellectual Property where authorised in writing by the Principal;

(b) the Agent shall not use it for any purpose other than that for which it has written permission;

(c) the Agent shall not register any of the Principal's Intellectual Property without written consent;

(d) the Agent shall not use any of the Principal's trade names, trade marks or logos in its own name or hold itself out as owning the same;

(e) the Agent shall always make clear that such Intellectual Property is owned by the Principal;

(f) the Agent acknowledges that all such Intellectual Property remains vested in the sole ownership of the Principal;

(g) the Agent shall notify the Principal of any infringement or attempted infringement of which it becomes aware; and

(h) the Agent shall provide reasonable assistance to the Principal in respect of any Intellectual Property disputes or claims.

§ 10. CONFIDENTIALITY

10.1 Each party shall not, at any time during the Term or after termination, disclose the Confidential Information of the other party, save as reasonably and necessarily required for the performance of its obligations under this Agreement, as authorised in writing by the other party, or as required by law or any regulatory authority.

10.2 This § 10 shall survive termination of this Agreement.

§ 11. DATA PROTECTION

11.1 Both parties shall comply with their obligations under the applicable data protection laws (the Data Protection Laws), being the Data Protection Act 2018, the UK General Data Protection Regulation (UK GDPR) and the Privacy and Electronic Communications Regulations 2003, in each case as amended or replaced from time to time.

11.2 The terms Personal Data, Data Subject, Controller, Processor and Personal Data Breach shall have the meanings given in the Data Protection Laws.

11.3 The parties acknowledge that, for the purposes of this Agreement, each party acts as an independent Controller in respect of the Personal Data it processes.

11.4 Personal Data shall be held and processed only for the following purposes: ________

11.5 Personal Data shall be shared only with the following permitted recipients (the Permitted Recipients): ________

11.6 Processing shall take place only in respect of the following categories of Personal Data and Data Subjects: ________

11.7 Both parties shall:

(a) ensure that they each hold all notices and consents required under the Data Protection Laws, the contents of which shall be mutually agreed;

(b) consult and inform each other as soon as reasonably practicable of any request made by a Data Subject in respect of its rights;

(c) assist each other to comply with lawful requests made by Data Subjects;

(d) notify each other as soon as reasonably practicable of any Personal Data Breach;

(e) dispose of Personal Data where lawfully required to do so by a Data Subject (save where it must be retained by law);

(f) ensure a written and legally binding arrangement containing the required provisions is in place with any processors and Permitted Recipients;

(g) ensure that appropriate technical and organisational security measures are in place to protect Personal Data, specifically including: ________

(h) ensure all persons involved in the processing maintain the confidentiality of the Personal Data; and

(i) ensure that no Personal Data is transferred outside the United Kingdom unless the transfer satisfies the requirements of the Data Protection Laws.

§ 12. ANTI-BRIBERY AND COMPLIANCE

12.1 Each party shall comply with all applicable laws relating to anti-bribery and anti-corruption, including the Bribery Act 2010, and shall not (and shall procure that no person acting on its behalf shall) directly or indirectly:

(a) make or facilitate any expenditure for any unlawful purpose in connection with this Agreement;

(b) offer, pay or promise to pay any money or give anything of value to any government official, political party or other person with a view to influencing any action or decision; or

(c) commit, consent to or participate in any act of bribery under the laws of any jurisdiction.

12.2 Each party shall maintain adequate policies and procedures to guard against bribery, corruption and money laundering, and to comply with the Proceeds of Crime Act 2002 and the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.

12.3 Each party shall immediately notify the other in the event that it becomes aware of any concerns relating to bribery in connection with this Agreement.

§ 13. TERMINATION

13.1 Either party may terminate this Agreement by written notice in accordance with Regulation 15 of the Regulations, being not less than:

(a) one month during the first Year;

(b) two months during the second Year; and

(c) three months during the third and any subsequent Year,

such notice to expire (unless otherwise agreed) at the end of a calendar month.

13.2 Either party may terminate this Agreement with immediate effect by written notice where the other party commits a material breach which is incapable of remedy, or which is capable of remedy and is not remedied within ________ days of written notice requiring it to do so.

13.3 The Principal may terminate this Agreement with immediate effect by written notice where the Agent:

(a) is unable to, or ceases to, pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(b) obtains a moratorium under Part A1 of the Insolvency Act 1986;

(c) becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

(d) becomes the subject of a scheme of arrangement under Part 26 of the Companies Act 2006;

(e) becomes the subject of a restructuring plan under Part 26A of the Companies Act 2006;

(f) passes a resolution, or has an order made, for the appointment of a receiver; or

(g) passes a resolution, or has an order made, for its winding up.

13.4 Either party may terminate this Agreement with immediate effect by written notice where the other party has failed to meet its obligations under the Data Protection Laws and, having been notified, has failed to remedy that breach within thirty days of receiving notice.

13.5 On termination of this Agreement, the Agent's entitlement to indemnity or compensation under Regulation 17 of the Regulations shall be determined in accordance with the Regulations. The parties agree that the Agent shall be entitled to ________ (indemnity or compensation) on termination, in accordance with Regulation 17.

13.6 Termination shall not affect any accrued rights or liabilities of either party, nor any provision expressed or intended to survive termination.

§ 14. FORCE MAJEURE

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14.2 The affected party shall notify the other in writing as soon as reasonably practicable of the nature and extent of the Force Majeure Event.

14.3 The affected party shall use all reasonable endeavours to mitigate the effect of the Force Majeure Event and to resume performance as soon as reasonably possible.

14.4 Performance of the affected party's obligations shall be suspended for the period the Force Majeure Event continues, with a corresponding extension of time.

14.5 If the Force Majeure Event continues for more than three months, either party may terminate this Agreement by giving not less than thirty days' written notice to the other.

§ 15. LIABILITY

15.1 The Principal shall maintain a valid product liability insurance policy in respect of the Products throughout the Term.

15.2 The Agent shall notify the Principal as soon as reasonably practicable of any claim or potential claim in respect of the Products, and shall provide all relevant information to enable the Principal to deal with it.

15.3 The liability of the Principal in respect of the supply of the Products shall be as set out in the Principal's terms and conditions of sale current at the date of the relevant sale.

15.4 Nothing in this Agreement shall exclude or limit the liability of either party for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot lawfully be excluded or limited.

15.5 Subject to § 15.4, neither party shall be liable to the other for loss of profit, loss of opportunity or loss of anticipated savings.

15.6 Subject to § 15.4, the total liability of each party to the other in connection with this Agreement shall not exceed £________ (________) per annum.

§ 16. NOTICES

16.1 Any notice under this Agreement shall be in writing and sent by recorded first class post (or air mail if overseas), or by email (confirmed by post), to the address of the relevant party set out at the head of this Agreement or to the email address set out below, or such other address or email address as that party may notify from time to time:

(a) the Principal: ________

(b) the Agent: ________

16.2 A notice shall be deemed received: three Business Days after posting (inland first class); seven Business Days after posting (air mail); or on the next Business Day after sending (email).

16.3 In proving service it shall be sufficient to prove that the notice was properly addressed and posted, or that the email was addressed and dispatched and its dispatch confirmed.

16.4 This § 16 does not apply to the service of any proceedings or other documents in any legal action.

§ 17. ASSIGNMENT AND VARIATION

17.1 No variation of this Agreement shall be effective unless made in writing and signed by or on behalf of each party.

17.2 This Agreement is personal to the parties and may not be sub-contracted, assigned or otherwise transferred by either party without the prior written consent of the other.

§ 18. WAIVER

18.1 No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of it, nor shall any single or partial exercise preclude any further exercise of that or any other right, power or remedy.

18.2 A waiver shall only be effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

§ 19. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings, negotiations and discussions, whether written or oral, relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty not set out in this Agreement.

§ 20. THIRD PARTY RIGHTS

For the purposes of the Contracts (Rights of Third Parties) Act 1999, and notwithstanding any other provision of this Agreement, this Agreement does not confer any right on any person who is not a party to it to enforce any of its terms.

§ 21. SEVERABILITY

If any provision of this Agreement is or becomes invalid, unlawful or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, lawful and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted, and the validity and enforceability of the remaining provisions shall not be affected.

§ 22. GOVERNING LAW AND JURISDICTION

22.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

22.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.

This Agreement, consisting of this and the preceding pages together with the Schedule annexed hereto, is AGREED AND SUBSCRIBED AS FOLLOWS:

__________________________________
Signed by ________
for and on behalf of ________ (the Principal)

Position: ________

Date: ________

__________________________________
Signed by ________
for and on behalf of ________ (the Agent)

Position: ________

Date: ________

SCHEDULE 1 — THE PRODUCTS

Please detail the products of the Principal that the Agent will be offering.

________