USA Manufacturers’ Representative Sales Representation Agreement – Terms & Conditions of Manufacturer / Unique Sales Agency Agreement
THIS AGREEMENT made this__day _____, 201_, by and between ______________, a corporation incorporated under the laws of the State of _________, having its principal office at _______________________, (“Manufacturer”), and USA – Unique Sales Agency., a sole proprietorship operating under the laws of the State of Florida, having its principal office at 14170 Barnwood Lane, Port Charlotte, Florida 33981 (“Representative”), as follows:
1. Appointment and Acceptance – Manufacturer appoints Representative as its special representative to promote the sale of and sell its products (indicated in Provision #3 hereof); in the territory (indicated in Provision #2 hereof); and Representative accepts the appointment and agrees to sell and promote the sale of the Manufacturer’s products. Acceptance of this agreement is implied if Manufacturer works with Representative in any way, shape, or form. This contract is in effect when it is implied that Representative and Manufacturer are working together, which would be defined as the moment manufacturer quotes a price for representative to provide to a customer. An implied contract is an agreement created by actions of the parties involved, but it is not written or spoken. This is a contract assumed to have been drawn. In this case, there is no written record nor any actual verbal agreement. A form of an implied contract is an implied warranty provided automatically by law, or in this case our terms and conditions of manufacturer/representative relationship.
2. Territory – Representative’s Territory shall consist oft North America, including the United States of America, Mexico, and Canada. Each manufacturer may designate us to a particular territory such as Example: “West of the Mississippi”, a particular state, such as “Florida”, a particular customer base, such as “OEM”, or one of our favorite designations, for “New Business Development”. We are flexible, and we operate in any way that will best help the manufacturer succeed that works within their business model, and that will best serve our broad and diverse customer base. (LIST ANY EXCEPTIONS HERE AND/OR IN AN APPENDIX)
3. Products – The “products” of the Manufacturer to be promoted for sale and sold by the Representative are: all products and services of manufacturer. . (LIST ANY EXCEPTIONS HERE AND/OR IN AN APPENDIX)
4. Amount of Compensation – Representative’s compensation for services performed hereunder shall be (see Appendix A) of the “net invoice price” of the Manufacturer’s products shipped into Representative’s territory. However, when engineering, execution of the order or shipment involve different territories, the Manufacturer will split the full commission among the Representatives whose territories are involved. The Manufacturer will make this determination in consultation with the Representatives involved based upon split commission applications submitted by those Representatives and advise the interested Representatives. The sum of the split commission shares shall add up to a full commission. Commissions on orders resulting from design in (a design or specification indicating Manufacturer’s product) procured or influenced by Representative will continue for the life of the customer’s program into which the product is designed even though the commission is being split between several representatives.
A Split Commission Request/Approval type of form should be submitted to the Manufacturer as soon as the Representative is aware of the circumstances requiring a split commission, and the Manufacturer should be asked to approve the request within thirty (30) days after submission by the Representative. See Appendix B.
5. Computations and Payment of Commission
a) Commissions are due and payable 30 days following receipt of payment. Commission checks will be written and mailed by the last day of the month following the above. If the commissions are not paid when due, the amount not paid will accrue interest at 15 % per annum from the date due until paid.
b) Manufacturer will send Representative copies of all invoices at the time Manufacturer invoices customer, and each invoice shall indicate the amount of commissions due Representative or the Manufacturer will send a monthly tabulation of all invoices with purchase order numbers, quantity, price and commission due.
c) At the time of payment of commissions to Representative, Manufacturer will send Representative a commission statement showing:
i) commissions due and owing Representative for that period and any prior periods, and
ii) commissions being paid (listing the invoices on which commissions are being paid).
d) “Net invoice price” shall mean the total price at which an order is invoiced to the customer including any increase or decrease in the total amount of the order (even though such increase or decrease takes place after the effective date of termination), but excluding shipping and insurance costs, sales, use and excise taxes, any allowances or discounts granted to the customer by the Manufacturer, and any tariffs, duties and export fees involved in international shipments.
e) There shall be deducted from any sums due Representative:
i) An amount equal to commissions previously paid or credited on sales of Manufacturer’s products that have since been returned by the customer or on allowances credited to the customer for any reason by the Manufacturer; and
ii) An amount equivalent to commissions previously paid or credited on sales which Manufacturer shall not have been fully paid by the customer whether by reason of the customer’s bankruptcy, insolvency, or any other reason which, in Manufacturer’s judgment, renders the account uncollectible. If any sums are ever realized upon such uncollectible accounts, Manufacturer will pay Representative its percentage of commission applicable at the time of the original sale upon the net proceeds of such collection.
f) “Order” shall mean any commitment to purchase Manufacturer’s products that calls for shipment into Representative’s territory or which is subject to a split commission in accordance with Provision #4 and Appendix A hereof.
6. Acceptance of Orders – All orders are subject to acceptance or rejection by an authorized officer of Manufacturer at its home office and to the approval of Manufacturer’s credit department. Manufacturer shall be responsible for all credit risks and collections.
If Manufacturer notifies customer of its acceptance or rejection of an order, a copy of any written notification shall be transmitted to the Representative. At least once every month Manufacturer shall supply Representative
with copies of all orders received directly by Manufacturer, copies of all shipping notices, and copies of all correspondence and quotations made to customers in the territory.
7. Terms of Sale – All sales shall be at prices and upon terms established by Manufacturer, and it shall have the right, in its discretion, from time to time, to establish, change, alter or amend prices and other terms and conditions of sale. Representative shall not accept orders in the Manufacturer’s name or make price quotations or delivery promises without the Manufacturer’s prior approval.
8. Representatives Relationship and Conduct of Business –
a) Representative shall maintain a sales office in the territory and devote such time as may be reasonably necessary to sell and promote Manufacturer’s products within the territory.
b) Representative will:
i) conduct all of its business in its own name and in such manner it may see fit,
ii) pay all expenses whatever of its office and activities, and
iii) be responsible for the acts and expenses of its employees.
c) Nothing in this Agreement shall be construed to constitute Representative as the partner, employee or agent of the Manufacturer nor shall either party have any authority to bind the other in any respect, it being intended that each shall remain an independent contractor responsible only for its own actions.
d) Representative shall not, without Manufacturer’s prior written approval, alter, enlarge, or limit orders; make representations or guarantees concerning Manufacturer’s products; or accept the return of, or make any allowance for such products.
e) Representative shall furnish to Manufacturer’s Credit Department any information that it may have from time to time relative to the credit standing of any of its customers. Representative may be required to assist in the collection of past due accounts receivable balances from their customers when deemed necessary by the Manufacturer.
f) Representative shall abide by Manufacturer’s policies and communicate same to Manufacturer’s customers.
g) Manufacturer shall be solely responsible for the design, development, supply, production and performance of its products and the protection of its patents, trademarks and trade names. Manufacturer agrees to indemnify and hold Representative harmless from and against and to pay all losses, costs, damages or expenses whatsoever, including reasonable attorney’s fees, which Representative may sustain or incur on account of infringement or alleged infringement of patents, trademarks, or trade names, or breach of warranty in any way resulting from the sale of Manufacturer’s products. Manufacturer will also include Representative as an additional insured on its product liability insurance policy.
h) Manufacturer shall furnish Representative, at no expense to Representative, samples, catalogs, literature and any other material necessary for the proper promotion and sale of its products in the territory. Any literature which is not used or samples or other equipment belonging to Manufacturer shall be returned to the Manufacturer at its request.
i) If for any reason Representative, at Manufacturer’s request, takes possession of Manufacturer’s products, the risk of loss or damage to or destruction of such products shall be borne by Manufacturer, and Manufacturer shall indemnify and hold Representative harmless against any claims, debts, liabilities or causes of action resulting from any such loss, damage, or destruction.
j) Manufacturer will keep Representative fully informed about sales and promotional policies and programs affecting the Representative’s territory.
9. Term of Agreement and Termination – This Agreement shall be effective on the __ day of ______, 200_, and shall continue in force for a one year period, and shall be automatically renewed for additional one (1) year periods thereafter unless terminated by written notice from either party to the other not less than thirty (30) days prior to the end of the initial or any subsequent one-year term. This Agreement may also be terminated:
a) By Manufacturer immediately upon written notice to Representative by registered or certified mail if there is a change of fifty (50%) percent or more of the present ownership or control of the Representative’s business without Manufacturer’s written consent.
b) By Manufacturer if Representative, without Manufacturer’s written consent, offers, promotes or sells any product which is competitive with any product Representative is to offer, promote or sell for Manufacturer in accordance with the terms of this Agreement, and written notice of this breach of the Agreement is mailed to or served upon Representative, the breach is not cured within ten (10) days after receipt of such notice by Representative, and written notice of termination is mailed to or served upon Representative.
c) By Representative:
i) if Manufacturer, without Representative’s written consent offers, promotes or sells any product which is competitive with any product Representative is offering or selling for any other manufacturer, and written notice of this breach of the Agreement is mailed to or served upon Manufacturer, the breach is not cured within ten (10) days after receipt of such notice by the Manufacturer, and written notice of termination is mailed to or served upon Manufacturer, or
ii) immediately upon written notice to Manufacturer by Registered or Certified mail in the event Manufacturer sells substantially all of the assets of its business or there is a change of 50% or more of its present ownership, or it is merged with another firm, corporation or business and Manufacturer is not the surviving company.
d) By either party:
i) in the event of the other party’s unreasonable and repeated failure to perform the terms and conditions of this Agreement, written notice of the failure is mailed to or served upon that party, the failure is not cured within thirty (30) days after receipt of such notice, and written notice of termination is mailed to or served on that party, or
ii) upon immediate written notice to the other party in the event that party has filed or has filed against it a petition in bankruptcy (which is not dismissed within thirty (30) days after it is filed) or that party makes an assignment for the benefit of creditors; or
e) By mutual written agreement.
10. Rights Upon Termination –
a) Upon termination of this Agreement for any reason, Representative shall be entitled to:
i) Commissions on all orders calling for shipment into Representative’s territory which are dated or communicated to Manufacturer prior to the effective date of termination, regardless of when such orders are shipped; or releases and shipments on such orders take place; and
ii) Its share of split commissions on orders including those referred to in Paragraph (a) (i) of this Provision 10.
b) Commissions referred to in this Provision #10 shall be paid on or before the last day of the month following the month in which the Manufacturer receives payment for the orders.
c) In addition to the commissions to be paid to Representative pursuant to the other paragraphs of this provision, Manufacturer agrees to be fair and reasonable in compensating Representative at the time of or after termination, for Representative’s efforts in developing customers in its territory which, because of Representative’s efforts, would be likely to continue to purchase products from the Manufacturer after termination.
11. General – This Agreement contains the entire understanding of the parties, shall supersede any other oral or written agreements, and shall be binding upon and inure to the benefit of the parties’ successors and assigns. It may not be modified in any way without the written consent of both parties. Representative shall not have the right to assign this Agreement in whole or in part without Manufacturer’s written consent.
12. Construction of Agreement- This Agreement shall be construed according to the laws of the State of Florida
13. Complete Agreement – This Agreement is the complete agreement between the parties with regard to
the subject made hereof. There are no representations or agreements between the parties except those set
14. Severability – In the event any one or more of the provisions herein shall be determined to be invalid
or unenforceable, the remaining provisions shall not be affected or impaired by such invalidity or unenforceability.
15. Disputes and Arbitration – The parties agree that any disputes or questions arising hereunder, including the construction or application of this Agreement, shall be settled by arbitration in accordance with the rules of the American Arbitration Association then in force, and that the arbitration hearings shall be held in the city in which the principal office of the party requesting arbitration (with the American Arbitration Association) is located. If the parties cannot agree upon an arbitrator within ten (10) days after demand by either of them, either or both parties may request the American Arbitration Association to name a panel of five (5) arbitrators. The Manufacturer shall strike the names of two (2) on this list, the Representative shall then strike two (2) names, and the remaining name shall be the arbitrator. The decision of the arbitrator shall be final and binding upon the parties both as to law and to fact, and shall not be appealable to any court in any jurisdiction. The expenses of the arbitrator shall be shared equally by the parties, unless the arbitrator determines that the expenses shall be otherwise assessed.
16. Notices – All notices, demands or other communications by either party to the other shall be in writing and shall be effective upon personal delivery or if sent by mail seventy-two (72) hours after deposited in the United States mail, first class postage, prepaid, Registered or Certified, and all such notices given by mail shall be sent and addressed as follows until such time as another address is given by notice pursuant to this provision 16
USA – Unique Sales Agency.
14170 Barnwood Lane
Port Charlotte, FL 33981
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written in multiple counterparts, each of which shall be considered an original.
(ADD DETAILS OF COMMISSION PLAN, EXCEPTIONS, ETC. HERE)
Split commission will typically be paid when product is designed, purchased or shipped into different locations with two or more companies having sales responsibility. A determination will be made on an account specific occurrence and Manufacturer will assign the split percentage based on the effort expended by the responsible sales organizations. This split will typically be 100% of the contractual commission rate indicated in this agreement, split by the number of responsible sales organizations.
(ADD SPECIFICS OF SPLIT COMMISSION DETAILS HERE)
General Provisions, Exceptions and Changes to Agreement
The parties agree that the following items are made a part of this Agreement:
Construction – This Agreement is formed in Charlotte County Florida and shall be construed and governed according to the laws of the State of Florida. The District Court of Charlotte County Florida shall have sole and exclusive jurisdiction over any disputes or causes of action arising hereunder.
Assignment – Neither party shall assign its interest in this Agreement without prior written consent of the other party.
Notice – Any notice, request, or other communication required or permitted by this Agreement shall be made to the other party at the address set forth herein and as may be changed in writing from time to time. Any notice of breach with opportunity to cure and notice of termination shall be by certified mail.
Confidential Information – All information provided by Manufacturer to Representative which is intended to be confidential or proprietary shall be clearly designated as such by the Manufacturer by marking same as “CONFIDENTIAL /PROPRIETARY” at the time it is provided to the Representative. Representative shall diligently protect confidential / proprietary information from disclosure unless authorized in writing by the Manufacturer. This covenant shall survive the termination of this Agreement. Upon termination of this agreement Representative shall return to Manufacturer all such confidential information.
Termination or modification – As already stipulated, this agreement may be terminated or modified by the Manufacturer or Representative in the event that either shall give to the other at least 30 days prior written notice of intention to terminate or modify this agreement. Upon the termination of this agreement all Sales and Marketing information, to include brochures, technical data, pricing, samples etc. shall be returned to the manufacturer before the effective termination date. Notice of termination or modification shall be sent by certified letter to the last address of the other party provided in the regular course of business.
Nothing in this Agreement shall be construed to constitute Representative as the partner, employee or Direct Agent of the Manufacturer, nor shall either party have any authority to bind the other in any respect, it being intended that each shall remain an independent contractor responsible only for its own actions.
Limited Agency – Representative is not a general sales agent of Manufacturer but rather is an agent within the scope of this Agreement. Representative’s authority is limited to those powers expressly granted herein and those reasonably necessary to carry out the duties undertaken by Representative under this Agreement. The Representative expressly has no authority to accept orders, quote pricing, or otherwise act as a direct employee of Manufacturer without prior written permission.
Indemnity – Representative will indemnify and hold Manufacturer harmless, and will defend Manufacturer against any and all loss, liability, damage, claims, demands, or suits and related costs and expenses to third party(s) that arise, directly or indirectly, from acts or omissions of Representative, or breach of any term or condition of this Agreement. Manufacturer will indemnify and hold Representative harmless, and will defend Representative against any and all loss, liability, damage, claims, demands, or suits and related costs and expenses to third party(s) that arise, directly or indirectly, from acts* or omissions of Manufacturer, or breach of any term or condition of this Agreement. *This includes, but is not limited to, personal injury or property damage caused by the design or defect of any of Manufacturer’s products as well as Manufacturer’s use of trade names, trademarks and breaches of warranty and/or any other legal agreement with third party(s). These indemnity protections will survive this agreement and remain in effect unless cancellation is agreed to in writing by both representative and manufacturer.
(ADD ANY OTHER PROVISIONS, EXCEPTIONS, AND CHANGES HERE)
(DELETE, MODIFY OR ADD ANYTHING ELSE IN THE AGREEMENT WHEREVER NEEDED AS AGREED TO BY BOTH PARTIES)
(ATTACH ANY ADDITIONAL PRINCIPAL OR REPRESENTATIVE DOCUMENTS AND DETAIL AND INITIAL THEIR EXISTENCE HERE)
(i.e. non-disclosure agreement)