Manufacturer’s Representative Agreement for Sale of Products
of Manufacturer to Distributors
This Agreement made on the __________________ (date), between
______________________ (Name of Representative), a corporation organized and
existing under the laws of the state of _________________, with its principal office
located at _____________________________________________________________
_______________ (street address, city, state, zip code), referred to herein as
Representative, and _____________________ (Name of Manufacturer), a corporation
organized and existing under the laws of the state of __________________, with its
principal office located at _________________________________________________
_______________________ (street address, city, state, zip code), referred to herein
as Company.
Whereas, Company desires to retain Representative, and Representative desires
to be retained to sell and market the Products described in Exhibit A, attached hereto,
to Company’s distributors in the Territory identified below all on the terms and
conditions set forth in this Agreement;
Now, therefore, for and in consideration of the mutual covenants contained in this
Agreement, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1.
Definitions
A.
Products shall mean the products manufactured and/or distributed by
Company as indicated on Exhibit A of this Agreement.
B.
Territory shall mean those geographical areas (describe) ____________
___________________________________________________________
__________________________________________________________.
C.
Customer shall mean any authorized distributor of the Products.
D.
Net Invoice Price shall mean the total price at which an order is invoiced to
the Customer by the Company prior to any discount offered by Company in
compensation for early payment. Excluded from the Net Invoice Price are
shipping and mailing costs, duties, taxes, and insurance and related adjustments
granted to the Customer by Company as shown on the face of the Company’s
invoice.
2.
Appointment and Authority of Representative
A.
Subject to the terms and conditions of this Agreement, Company appoints
Representative as the exclusive sales representative firm for the Products in the
Territory, and Representative accepts the appointment and agrees to represent
and promote the sale of the Products. Notwithstanding anything to the contrary in
this Agreement, in no event shall this Agreement or any term herein be
interpreted or construed that Representative is a distributor of the Products.
Products can be sold in connection with this Agreement only by the distributors
or by the Company. Except as expressly set forth herein, no other rights or
licenses are granted to Representative hereunder.
B.
Representative shall neither advertise the Products outside the Territory
nor solicit orders from outside the Territory without the prior written consent of
Company.
C.
The relationship of Company and Representative established by this
Agreement is that of independent contractors, and nothing contained in this
Agreement shall be construed to (i) give either party the power to direct and
control the day-to-day activities of the other, (ii) constitute the parties as partners,
joint ventures, co-owners or otherwise as participant in a joint undertaking, or (iii)
allow Representative to create or assume any obligation on behalf of Company
for any purpose whatsoever. All financial and other obligations associated with
Representative's business are the sole responsibility of Representative.
3.
Compensation
A.
Subject to the terms and conditions of this Agreement and as full payment
for any and all services rendered by Representative and in consideration of the
effort of Representative and all of the expenses incurred by Representative
hereunder, Company agrees to pay to Representative, and Representative
agrees to accept, a _____% commissions on sales of the Products to Customers
in the Territory as set forth in Section 1-A.
B.
The commission shall apply to all Product orders from all Customers in the
Territory that have been accepted by Company and which shipments have
occurred during the term of this Agreement, whether or not such orders were
solicited by Representative.
C.
In no case will any compensation paid to Company employees be
deducted from commissions due Representative.
D.
Commissions will be paid on or before the 30th day of the month following
the month in which the Product was invoiced by the Company. Commissions not
paid within the agreed payment terms will be subject to finance charges at
Annual Interest Rate of _____% on the balance due.
E.
Company shall have the absolute, unconditional right to chargeback
Representative for the commissions paid or credited to Representative on all
shipments (a) not paid by a Customer over ninety (90) days past the invoice
date, provided Company re-credits Representative for the appropriate
commission applied to actual partial or full payments, less fees incurred in the
process of collecting the payments, subsequently received by Company from the
Customer, and/or (b) returned by Customer to Company for credit.
F.
Payment of commissions shall be in dollars, and Representative. shall be
responsible for paying all applicable taxes on such commissions.
G.
Company shall submit to Representative monthly statements of the
commissions due and payable to Representative under the terms of this
Agreement, with reference to the specific customers on which the commissions
are being paid.
4.
Sale of the Products
A.
All sales by the distributors shall be on terms established by Company and
the respective distributors, and Company shall have the right to establish,
change, alter, or amend terms and conditions of sale in its sole discretion and as
otherwise set forth in the Distributor Agreement between the Company and the
Distributor.
B.
Representative shall not accept orders in Company’s name, make price
quotations or delivery promises without Company’s prior written approval. All
orders obtained by Representative directly shall be submitted to the Company
and shall be subject to acceptance by Company at its principal office currently
located at the address listed for Company at the beginning of this Agreement,
and all quotations by Representative shall contain a statement to that effect.
Representative shall have no authority to make any acceptance/delivery
commitments to any Customers.
C.
Company shall have the sole right of credit approval or credit refusal for
Customers in all cases.
D.
Company shall render all invoices directly to the Customers. Invoice
payments shall be made directly to Company by Customers.
E.
It is expressly understood by Representative that full responsibility for all
collection rests with Company.
F.
Whenever Representative, at Company’s request, takes possession of
Company’s Products for the purpose of assisting the Company in delivering such
Products to Customers, the risk of loss or damage to or destruction of such
Products shall be borne by Company with the exception of events of damage by
Representative or destruction or loss of the Products by Representative, in which
case it shall be borne by Representative.
5.
Product Warranty and Product Availability
A.
Any warranty for the Products shall run directly from Company to the
Customer, and pursuant to the warranty, the Customer is to return any allegedly
defective Products to Company or designated depot. Representative shall have
no authority or responsibility to accept any returned Products.
B.
Representative shall not provide nor imply any additional Product
warranties without the express written consent of Company’s corporate officer.
6.
Representative’s Relationship and Conduct of Business
A.
Representative shall maintain sales offices in the Territory and shall
represent and promote the sale of Company’s Products within the Territory.
B.
Representative will conduct all of its business in its own name.
Representative will pay all expenses of its office and activities and be responsible
for the acts and expenses of its employees, subcontractors and representatives.
C.
Representative shall not, without Company’s prior written approval, alter,
enlarge, or limit orders, make representations, warranties or guarantees
concerning Company’s Products or accept the return of, or make any allowance
for such Products.
7.
Use of Trademarks and Trademarks
Representative recognizes and concedes for all purposes that all trademarks,
trade names, logos or identifying slogans affixed to Company’s Products or any
accompanying labels, containers, and cartons, whether or not registered (Trademarks),
constitute the exclusive property of Company and cannot be used by Representative
except only in connection with promoting the sale of Company Products hereunder and
only with the Company’s prior written approval. During the term of this Agreement,
Representative is authorized by Company to use Company’s Trademarks in connection
with Representative’s promotion of Company Products, provided that Representative’s
use of such Trademarks shall be in accordance with Company’s policies from time to
time communicated to Representative and with Company’s prior written approval.
Representative shall have no interest in such Trademarks by virtue of this Agreement
except as herein expressly provided, and Representative’s use of such Trademarks
shall cease immediately upon termination or expiration of this Agreement. Company
reserves the right to change Company Trademarks without notice. Representative shall
not change or remove any Company Trademarks or third-party trademarks or other
proprietary notices on or contained within the Products.
8.
Indemnifications
A.
Company shall be solely responsible for and agrees to defend or settle (at
its option) and hold Representative harmless against and to pay all losses, costs,
damages and expenses whatsoever, including reasonable attorney fees, which
Representative may sustain or incur on account of a third-party’s action instituted
against Representative, based on:
1.
Infringement or alleged infringement of Company patents, or the
Trademarks, resulting from Representative’s distribution of the Products or
use of the Trademarks as authorized hereunder, or
2.
Warranty claims or product liability claims arising out of the
Products. Representative shall, however, have the right to participate in
the defense at its own expense.
B.
Representative shall be solely responsible for, and shall indemnify and
hold Company free and harmless from, any and all claims, damages or lawsuits
(including Company’s attorney’s fees) arising out of (a) the acts or omissions to
act of Representative, its employees or its agents; (b) any misrepresentation,
breach or non-fulfillment of any of the covenants or Agreements of
Representative in this Agreement; (c) any liability, obligation, or commitment
relating to the operation of Representative’s business arising out of transactions
contemplated hereunder; or (d) any violation of U.S. law by Company.
Representative will such claims same at its own expense. Company shall,
however, have the right to participate in the defense at its own expense.
9.
Term of Agreement and Termination
A.
This Agreement shall be effective on the ___________________ (date)
and shall continue until _____________________ (date). This Agreement shall
automatically be renewed unless terminated by either party upon ninety (90)
days written notice of its intent not to renew to the other by registered or certified
mail prior to the end of the initial term of this Agreement, or any renewal term.
B.
This Agreement may not be terminated for convenience in the first six
months by either party. After the initial six months, this Agreement may be
terminated by either party for any reason at any time by giving the other party
written notice ninety (90) days in advance. Either party may immediately
terminate this Agreement for cause by providing written notice to the other party
if the other party (a) has breached any of the material covenants and
Agreements contained herein, and (b) has not cured that breach (if the breach is
curable) within 5 days after the written notice to the defaulting party.
C.
This Agreement shall terminate, without notice, (a) upon the institution by
or against either party for insolvency, receivership or bankruptcy proceedings, (b)
upon either party making an assignment for the benefit of creditors, or (c) upon
the dissolution of either party.
10.
Rights upon Termination
Upon termination of this Agreement for any reason:
A.
Company shall pay to Representative the commissions on all Products
sold by Representative, which orders have been accepted by the Company prior
to the effective date of termination of this Agreement, all in accordance with the
terms and conditions of this Agreement.
B.
No additional compensation of any kind shall be paid to Representative as
of the effective date of termination of this Agreement.
C.
Upon termination, Representative shall immediately cease all promotion of
the Products and representing itself as the sales representative firm for the
Company’s Products.
D.
Each party shall immediately destroy or return to the other party any and
all of the other party’s Confidential Information and marketing material in its
possession or control. Upon either party’s request, a duly authorized corporate
officer of the other party shall certify in writing that such return or destruction has
occurred.
E.
Except for damages for a material breach of this Agreement, neither party
shall be liable to the other for damages of any kind, including without limitation
any consequential or incidental damages, on account of the termination or
expiration of this Agreement, and each party waives any right it may have to
receive any compensation or reparations on termination or expiration of this
Agreement other than as expressly provided herein.
11.
Compliance with Laws
Each party will comply with all applicable laws and regulations and ordinances in
their performance under this Agreement.
12.
Publicity
A.
Both parties hereto will jointly issue a press release on or about the
effective date of this Agreement.
B.
Representative shall submit to Company for approval any and all public
announcements, advertising and sales literature of Representative which refers
to the Company and/or includes any Company trademarks.
13.
Confidentiality
Information furnished by Company to Representative with respect to the
products, services, and their application, installation, and repair that is designated by
Company as confidential or proprietary shall be held by Representative in confidence
and used only for the purposes set forth in this Agreement during the term of this
Agreement. All such confidential and proprietary information, including all copies of such
information, and any other information not specifically designated by Company for
release to the public that may come into the possession of Representative during the
term of this Agreement, including all copies of such information, shall be delivered to
Company when requested to do so by Company without making or retaining copies or
excerpts of such information.
14.
Severability
The invalidity of any portion of this Agreement will not and shall not be deemed to
affect the validity of any other provision. If any provision of this Agreement is held to be
invalid, the parties agree that the remaining provisions shall be deemed to be in full
force and effect as if they had been executed by both parties subsequent to the
expungement of the invalid provision.
15.
No Waiver
The failure of either party to this Agreement to insist upon the performance of any
of the terms and conditions of this Agreement, or the waiver of any breach of any of the
terms and conditions of this Agreement, shall not be construed as subsequently waiving
any such terms and conditions, but the same shall continue and remain in full force and
effect as if no such forbearance or waiver had occurred.
16.
Governing Law
This Agreement shall be governed by, construed, and enforced in accordance
with the laws of the State of _______________.
17.
Notices
Any notice provided for or concerning this Agreement shall be in writing and shall
be deemed sufficiently given when sent by certified or registered mail if sent to the
respective address of each party as set forth at the beginning of this Agreement.
18.
Attorney’s Fees
In the event that any lawsuit is filed in relation to this Agreement, the
unsuccessful party in the action shall pay to the successful party, in addition to all the
sums that either party may be called on to pay, a reasonable sum for the successful
party's attorney fees.
19.
Mandatory Arbitration
Any dispute under this Agreement shall be required to be resolved by binding
arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party
shall select one arbitrator and both arbitrators shall then select a third. The third
arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by
the rules of the American Arbitration Association then in force and effect.
20.
Entire Agreement
This Agreement shall constitute the entire agreement between the parties and
any prior understanding or representation of any kind preceding the date of this
Agreement shall not be binding upon either party except to the extent incorporated in
this Agreement.
22.
Modification of Agreement
Any modification of this Agreement or additional obligation assumed by either
party in connection with this Agreement shall be binding only if placed in writing and
signed by each party or an authorized representative of each party.
23.
Assignment of Rights
The rights of each party under this Agreement are personal to that party and may
not be assigned or transferred to any other person, firm, corporation, or other entity
without the prior, express, and written consent of the other party.
24.
In this Agreement, any reference to a party includes that party's heirs, executors,
administrators, successors and assigns, singular includes plural and masculine includes
feminine.
WITNESS our signatures as of the day and date first above stated.
__________________________
(Name of Company)
__________________________
(Name of Representative)
By:____________________________
___________________________
(Printed name & Office in Corporation)
___________________________
(Signature of Officer)
By:_______________________________
_________________________
(Printed name & Office in Corporation
__________________________
(Signature of Officer)