[Non-Exclusive ]Sales Representative Agreement
This[ Non-Exclusive] Sales Representative Agreement is made on [AGREEMENT DATE][ (the “Effective Date”)] between [REPRESENTATIVE NAME], [whose principal place of residence is at/a [CORPORATE JURISDICTION] corporation with its principal place of business at] [REPRESENTATIVE ADDRESS] (the "Representative") and [COMPANY NAME], a [CORPORATE JURISDICTION] corporation with its principal place of business at] [COMPANY ADDRESS] (the "Company").
The parties agree as follows (the capitalized terms used in this agreement, in addition to those above, being defined in section 14 (Definitions)):
1.1. Appointment of Representative. The Company hereby appoints the Representative as a non-exclusive sales representative to sell and promote the Company's products[ and services] listed in Schedule A, List of Products[ and Services] (the "Products"). The Representative hereby accepts the appointment and agrees to represent and promote the sale of the Products on a non-exclusive basis.
1.2. Territory. During the Term, the Representative shall sell the Products only in the following geographical area: [DESCRIBE TERRITORY] (the "Territory").
(a) Target Customers. The Representative shall direct it's sales and promotional efforts toward the following: [DESCRIBE CUSTOMERS]. This description is not intended to be exhaustive but only to give examples of the nature and type of market in which the Company wishes the Products to be sold.
(b) Existing Customers. The Representative acknowledges that the Company has existing relationships with those customers listed in Schedule B (the "Existing Customers"), and that no compensation is payable for sales made by the Representative to Existing Customers.
2. Commission and Expenses
2.1. Commissions. The Company shall pay the Representative a commission on sales of the Products in the Territory to customers, where the sales were made substantially through its efforts, except as provided in section 2.4 (No Commissions in Certain Circumstances).
2.2. Calculation of Commissions. Commissions are calculated as follows:
(a) [COMMISSION PERCENTAGE FOR INCLUDED PRODUCTS]% of the Net Amount that the Company charges for orders of the Products placed through the Representative (other than to Existing Customers and their affiliates), and
(b) [COMMISSION PERCENTAGE FOR OTHER PRODUCTS]% of total Net Amount that the Company charges for orders of products other than Products listed in Schedule A that are placed through the Representative.
2.3. Offsets and Charge-Backs. In calculating the Representative's commission, the Company may offset any credits, cancellations, refunds, allowances, and returns to or by customers of revenues on which Representative has already been paid commissions under this agreement, but in no event will the offset for any customer exceed the sales price of that customer's returned, cancelled, or otherwise credited Products.
2.4. No Commissions in Certain Circumstances. The Company will not be required to pay the Representative a commission in any of the following circumstances:
(a) if prohibited under applicable Law,
(b) if the Representative did not directly facilitate the sale of the Products to a customer,
(c) on any sale to any customer that is directly or indirectly owned by or under common ownership with the Representative,
(d) on any sales outside of the Territory,
(e) on any sales to Existing Customers, or
(f) on any sale of Products to a customer occurring more than [POST-TERMINATION GRACE PERIOD] days after the expiration or termination of this agreement, unless the sale is the direct result of the Representative's sales efforts before the termination or expiration.
2.5. Expenses. The Representative is solely responsible for any expenses it incurs in performing its services under this agreement.
2.6. Definition of "Net Amount." In this agreement, "Net Amount" means the sales price of the sold product as listed on the applicable invoice, less charges for handling, freight, sales, use, value added, or similar taxes, import or export taxes or levies taxes, C.O.D. charges, insurance, customs duties, trade discounts, and any other fees or charges of any Governmental Authority.
3. Payment Obligations
3.1. Timing of Payment. The Company shall pay the Representative its commissions within [COMMISSION PAYMENT DAYS] days of the Company's receipt of payment from the customer, based on the amounts actually received. (For example, installment payments from a customer will result in installment commission payments to the Representative.)
3.2. Taxes. The Representative is solely responsible for paying all taxes incurred as a result of the performance of its services under this agreement and complying with all tax-related obligation. The Company has no obligation to pay or withhold any sums for taxes.
4. Representative's Responsibilities
4.1. Duties. The Representative shall devote such time, energy, and skill on a regular and consistent basis as is necessary to sell and promote the sale of the Company's Products in the Territory.
4.2. Finalizing Orders. The Representative shall assist in finalizing agreements and purchase orders with each customer, in form and substance satisfactory to the Company, for such customer's purchase of the Products.
4.3. Stating Company Policies. The Representative shall accurately represent and state Company policies to all present and potential customers.
4.4. Sales-Related Services. The Representative shall perform all other sales-related services as the Company may reasonably require.
4.5. Maintaining Contact. The Representative shall 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.
4.6. Notice to Company. The Representative shall give prompt Notice to the Company
(a) of all sales and orders,
(b) of any new companies or products that it represents at the time that it starts promoting those new companies and products,
(c) of any problems concerning customers (including Existing Customers), and
(d) if the Representative intends to advertise the Products outside of the Territory or solicit sales from customers located outside of the Territory.
4.7. Compliance with Laws. The Representative shall comply with all Laws and industry regulations relating to its representation of the Products.
4.8. No Conflicting Representation. The Representative shall not represent, promote, or otherwise try to sell in the Territory any lines or products that, in the Company's judgment, compete with the Products.
5. Company's Responsibilities
5.1. Sales and Marketing Materials. The Company shall provide the Representative, at no cost, with sales and marketing materials relating to the Products.
5.2. Sample Products. The Company shall prepare samples for potential customers, as reasonably requested by the Representative, but only if the Representative has given the Company sufficient notice of its request,
5.3. Product Information. The Company shall provide the Representative with current information as to improvements, upgrades, or other changes in the Products.
5.4. Sales Terms. The Company shall
(a) determine all Product prices and terms of sale, and
(b) give timely Notice to the Representative of any Product price changes.
6.1. Initial Term. The initial term of this agreement will begin on [TERM START DATE] and end on [TERM END DATE], unless terminated earlier.
6.2. Renewal Terms. Following the initial term, this agreement will automatically renew for successive [RENEWAL TERM PERIODS] terms, unless terminated earlier. If a party elects not to renew this agreement, that party shall provide Notice of that intention to the other party at least [NON-RENEWAL NOTICE PERIOD] days before the renewal date.
7. Representative's Representations
7.1. No Conflicts. The Representative is under no restriction or obligation that may affect the performance of its obligations under this agreement.
7.2. No Competing Representation. The Representative does not currently represent or promote any products or services that compete with the Products.
8.1. Non-Exclusivity. The Company's appointment of the Representative is non-exclusive. The Company may appoint additional representatives in the Territory without liability or obligation to the Representative.
8.2. No Other Compensation. The compensation detailed in section 2 (Commissions and Expenses) is the Representative's sole compensation under this agreement.
8.3. No Authority. The Representative has no authority to bind the Company in any manner.
8.4. Right to Use Company Marks. The Representative's right to use the Company Marks derives solely from this agreement and is limited to performing its obligations under this agreement.
8.5. Benefit of Goodwill. The Representative's usage of the Company Marks and any resulting goodwill will accrue solely to the Company's benefit.
8.6. No Obligation. Nothing in this agreement creates any obligation between either party and any third party.
9. Use of Company Marks
9.1. Ownership of Company Marks. The Representative recognizes the Company's exclusive right, title, and interest in and to all service marks, trademarks, and trade names used by the Company (collectively, the "Company Marks").
9.2. Actions in Company's Best Interests. The Representative shall act in the best interests of the Company as owner of the Company Marks and in such a way as to preserve and protect the Company's interest in them.
9.3. [Short form] No Rights in Company Marks. The Representative shall not apply for, acquire, or claim any right, title, or interest in or to any Company Marks or in any marks that may be confusingly similar to any of them.
[Long form] Protection of Company Marks. The Representative shall not directly or indirectly
(a) register or use any other trade name, trademark, or service mark incorporating or based in whole or in part on any of the Company Marks,
(b) use any Company Mark as part of any corporate or trade name, as part of prominent signage displaying its business name, or in connection with unauthorized goods or services,
(c) use the Company Marks in combination with any other trademarks,
(d) debrand, rebrand, or private label any of the Company Marks,
(e) hold itself out as having any ownership interest in the Company Marks,
(f) engage in any conduct that would constitute Infringement of or otherwise affect either the Company's interest in the Company Marks or the goodwill associated with them,
(g) dispute the validity, ownership, or enforceability of any of the Company Marks,
(h) invalidate, dilute, or otherwise adversely affect the value of the goodwill associated with the Company Marks, or
(i) engage in any conduct that would constitute infringement of, or otherwise harm, the intellectual property rights of third parties.
10.1. Confidentiality Obligations. During the period starting on the Effective Date and ending [RESTRICTED PERIOD TERM] after the date of termination or expiration of this agreement (the "Restricted Period"), the Representative shall hold all Confidential Information in confidence in accordance with the terms of this agreement.
10.2. Use only for the Purpose. The Representative shall use the Confidential Information solely for the purpose of selling and promoting the Products.
10.3. Definition of Confidential Information. In this agreement, "Confidential Information" means all non-public business-related information, written or oral, disclosed or made available by the Company to the Representative, directly or indirectly, through any means of communication or observation, but does not include information that
(a) is or becomes publicly known through no wrongful act of the Representative,
(b) the Representative received in good faith on a non-confidential basis from a source other than the Company,
(c) was in the Representative's possession before its disclosure by the disclosing party or its Representatives,
(d) the Representative developed independently without breach of this agreement, or
(e) the Company has explicitly approved, by Notice to the Representative, for release to a third party.
11.1. Termination on Notice. Either party may terminate this agreement for any reason upon [TERMINATION FOR CONVENIENCE NOTICE] Business Days' Notice to the other party.
11.2. Termination on Breach. If either party commits any material breach or material default in the performance of any obligation under this agreement, and the breach or default continues for a period of [CURE PERIOD] Business Days after the other party delivers Notice to it reasonably detailing the breach or default, then the other party may terminate this agreement, with immediate effect, by giving Notice to the first party.
11.3. Termination on Insolvency. This agreement will terminate immediately upon either party's insolvency, bankruptcy, receivership, dissolution, or liquidation.
12. Effect of Termination
12.1. Return of Property. Within [RETURN OF PROPERTY PERIOD] days of the termination or expiration of this agreement, the Representative shall return to the Company all the Company's property, and all documents relating to its representation of the Company, both originals and copies, under its direct or indirect control.
12.2. Discontinue Use of Company Marks. Effective as of the date of termination or expiration of this agreement, the Representative shall cease to use any of the Company Marks.
13.1. Representative's Indemnity. The Representative shall indemnify the Company and its Indemnitees against all claims, liability, and expenses (including legal fees) arising from any third party claim or proceeding brought against the Company that alleges any [grossly] negligent act or omission or willful conduct of the Representative or its Indemnitees.
13.2. Company's Indemnity. The Company shall indemnify the Representative[ and its Indemnitees] against all claims, liability, and expenses (including legal fees) arising from any third party claim or proceeding brought against the Representative that alleges
(a) any[ grossly] negligent act or omission or willful conduct of the Company or its Indemnitees,
(b) any defects in the Products caused by the Company, or
(c) the Company's failure to provide any Products to a customer that were properly ordered through the Representative.
13.3. Conditions for Indemnification. A party’s obligation to indemnify the other party under this section 13 (Indemnification) is conditional upon the indemnified party
(a) giving the indemnifying party prompt Notice of a claim or potential claim made against it,
(b) giving the indemnifying party sole control of the defense and settlement of the claim, except that the indemnifying party may not settle the claim unless the settlement unconditionally releases the indemnified party of all liability, and
(c) providing the indemnifying party with all reasonable assistance, at the indemnifying party’s expense, in connection with the claim.
13.4. Exception. No party will be entitled to indemnification from the other party if the claim is based on or results in any material part from the negligence or unlawful or wrongful acts of the party seeking indemnification.
13.5. Exclusive Remedies. The indemnification rights granted under this section 13 (Indemnification) are the exclusive remedies available under this agreement in connection with the claims and losses that this section addresses.
13.6. [Definition of “Indemnitee.” In this agreement, “Indemnitee” means, for either party, any of that party’s directors, officers, employees, shareholders, partners, agents, or affiliates.]
14. Definitions. In addition to the terms at the top of the first page of this agreement, the following definitions apply:
14.1. "Company Marks" is defined in section 9.1 (Ownership of Company Marks).
14.2. "Confidential Information" is defined in section 10.3 (Definition of "Confidential Information").
14.3. "Existing Customers" is defined in paragraph (b) (Existing Customers) of section 1.3 (Customers).
14.4. “Governmental Authority” means
(a) the government of the United States or any other nation, or any of its or their geographical or political units or subdivisions, and
(b) any body, agency, tribunal, arbitrator, court, authority, or other entity that exercises executive, legislative, judicial, taxing, regulatory, or administrative powers or functions of, or relating to, government.
14.5. "Indemnitee" is defined in section 13.6 (Definition of "Indemnitee").
14.6. “Law” means
(a) any law (including the common law), statute, by-law, rule, regulation, order, ordinance, treaty, decree, judgment, and
(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.
14.7. "Net Amount" is defined in section 2.6 (Definition of "Net Amount").
14.8. “Notice” means any notice, request, direction, or other document that a party can or must make or give under this agreement.
14.9. "Products" is defined in section 1.1 (Appointment of Representative).
14.10. "Restricted Period" is defined in section 10.1 (Confidentiality Obligations).
14.11. "Territory" is defined in section 1.2 (Territory).
15. General Provisions
15.1. Entire agreement. This agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.
15.2. Amendment. This agreement may only be amended by a written document signed by both parties.
15.3. Assignment. The Representative may not assign this agreement or any of its rights or obligations under this agreement without the Company's prior written consent. The Company may assign this agreement or any of its rights or obligations under this agreement, effective upon Notice to the Representative.
15.4. No Partnership. The Representative is an independent contractor. Nothing contained in this agreement creates a partnership, joint venture, employer/employee, principal-and-agent, or any similar relationship between the parties.
(a) Form of Notice. All notices and other communications between the parties must be in writing and addressed to the respective party as follows:
If to the Company:
If to the Representative:
(b) Method of Notice. Notices must be given by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.
(c) Receipt of Notice. A Notice given in accordance with this agreement will be effective upon receipt by the party to which it is given or, if mailed, upon the earlier of receipt and the fifth Business Day following mailing.
15.6. Remedies Cumulative. Except as provided in section 13.5 (Exclusive Remedies), the rights and remedies available to a party under this agreement are cumulative and in addition to, not exclusive of or in substitution for, any rights or remedies otherwise available to that party.
15.7. Survival. Sections 2 (Commissions and Expenses), 10 (Confidentiality), 12 (Effect of Termination), and 13 (Indemnification) survive the termination or expiration of this agreement.
15.8. Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
15.9. Waiver. A party’s failure or neglect to enforce any of rights under this agreement will not be deemed to be a waiver of that party's rights.
15.10. Equitable Relief. The Representative acknowledges that its breach or threatened breach of any its obligations under section 10 (Confidentiality) would not be susceptible to adequate relief by way of monetary damages only. Accordingly, the Company may, in that case, apply to court for any applicable equitable remedies (including injunctive relief), without the need to post any security.
15.11. Governing Law. This agreement will be governed by and construed in accordance with the laws of the State of [GOVERNING LAW STATE], without regard to its conflict of laws rules.
15.12. Waiver of Jury Trial. Each party irrevocably waives its rights to trial by jury in any action or proceeding arising out of or relating to this agreement or the transactions relating to its subject matter.
15.13. Headings. The headings used in this agreement and its division into sections, schedules, and other subdivisions do not affect its interpretation.
15.14. Internal References. References in this agreement to sections, schedules, and other subdivisions are to those parts of this agreement.
15.15. Schedules and Exhibits. The following are attached to and form part of this agreement:
(a) Schedule A: List of Products[ and Services]
(b) Schedule B: List of Existing Customers
15.16. Counterparts. This agreement may be signed in any number of counterparts, each of which is an original and all of which taken together form one single document.
15.17. Effectiveness of Agreement. This agreement is effective as of the Effective Date, even if any signatures are made after that date.
This agreement has been signed by the parties.
Schedule A - List of Products[ and Services]
Schedule B - List of Existing Customers