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This is an agreement between a principal and an agent whereby the agent is appointed as an independent contractor on a non-exclusive basis to purchase products for the principal in a defined territory. The agreement contains standard clauses as well as customizable exhibits to ensure that the parties’ understandings are properly set forth. Customizable exhibits include products and territories, reserved accounts, commission schedules, and company marks. This document should be used by small businesses or other entities that want to hire independent contractors on a non-exclusive basis to purchase products or services on a commission basis.
This is an agreement between a principal and an agent whereby the agent is appointed as an independent contractor on a non-exclusive basis to purchase products for the principal in a defined territory. The agreement contains standard clauses as well as customizable exhibits to ensure that the parties’ understandings are properly set forth. Customizable exhibits include products and territories, reserved accounts, commission schedules, and company marks. This document should be used by small businesses or other entities that want to hire independent contractors on a non-exclusive basis to purchase products or services on a commission basis. NON EXCLUSIVE PURCHASING AGENCY AGREEMENT THIS NON EXCLUSIVE PURCHASING AGENCY AGREEMENT (the “Agreement”), is made and entered into this _____ day of _________, 200_ (“Effective Date”) by and between _________, a _______ corporation, having its principal place of business at ____________________________ (the “Company”), and _________________ a ___________ corporation, having its principal place of business at ________________________________________ (the “Agency”). RECITALS WHEREAS, Company desires to appoint Agency as an independent Purchasing Agency for procurement of products (“Products”) in accordance with the terms set forth herein; and WHEREAS, Agency desires to accept such an appointment on a non-exclusive basis to procure Products for Company in the territory specified below and in accordance with the terms set forth herein. NOW, THEREFORE, in consideration of the mutual promises and obligations set forth in this Agreement, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. DEFINITIONS: The below-listed terms shall be defined for purposes of this Agreement as follows: 1.1. The term "Product(s)" shall mean only the products of Company, which are identified in Schedule A attached hereto. 1.2. The term "Territory" shall mean the geographical area set forth in Schedule B attached hereto. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 2 2. APPOINTMENT AND AUTHORITY OF AGENCY 2.1. Purchasing Agency Appointment. Subject to the terms and conditions of this Agreement, Company hereby appoints Agency as Company’s nonexclusive Purchasing Agency solely for the Products listed in Schedule A attached hereto and only in the Territory set forth in Schedule B attached hereto, and Agency hereby accepts such appointment. Company reserves the right, on prior written notice to the Agency to add to or to delete Products set forth in Schedule A which will become effective immediately upon notice to Agency. 2.2. Exclusivity. The Company hereby appoints Agency to procure Products in the Territory on behalf of the Company subject to the terms and conditions in this Agreement. Such appointment shall not be exclusive. Company reserves the right, from time to time during the Term (as herein below defined) to appoint similar agencies, without any liability or obligation to the Agency, from the geographical area included in the Territory. 2.3 Independent Contractors. The relationship of Company and Agency established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to give either party the power to direct or control the day-to-day activities of the other. All financial and other obligations associated with Agency’s business are the sole responsibility of Agency. Neither Agency nor any individual whose compensation for services is paid for by Agency, is in any way employed by Company, nor shall any of them be deemed to be employed by Company for any purpose. Agency accepts exclusive liability for any and all payroll taxes or contributions according to the laws of the Territory with respect to sales agents and/or other individuals whose compensation is paid by Agency. 2.3 Ownership. Company and its licensors shall have and retain all right, title and interest in and to all patents, copyrights, trade names, trademarks, trade secrets, moral rights and all other intellectual property in the Products and all other intellectual property of Company. Except as expressly stated, nothing in this Agreement shall be construed as a license, whether express or implied of any Company intellectual property to Agency. 3. COMMISSION 3.1. Sole Compensation. Agency’s sole compensation under the terms of this Agreement will be a commission (“Commission”) computed in accordance with this Section 3 and Schedule C attached hereto. Company does not guarantee Agency any income, profits or success and Agency certifies that no such representation has been made by Company. [Mention how commissions would be computed such as a % of the FOB value of the Products purchased. ]. 3.2. Basis of Commission. The Commission will apply to only those Products which are finally accepted by Company. Company shall not be responsible for paying Commissions for defective or returned Products in the event it is evident that shipment of defective Products have been made due to the negligence of Agency. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 3 3.3. Disputes. Company has final authority to resolve disputes regarding Commissions. If Agency has questions about Agency’s Commission payment, Agency shall send, within thirty (30) days from the date Company sends the Commission payment to Agency, to Company a notice containing all of the following information: (i) Agency’s name and address; (ii) the check number on the Commission payment; (iii) the period of time covered by the Commission payment; (iv) the names of source of procurement for which Commissions were earned; and (v) a description and explanation of the alleged discrepancy. Company shall have no obligation to address any alleged discrepancy with respect to any Commission payment not reported to Company within such thirty (30) day period. 3.4. Payment. Payment of Commissions shall be in U.S. Dollars and shall be subject to all applicable governmental statutes, regulations and rulings, including the withholding of any taxes required by law. 3.5. Payment Terms. The Commission on a given purchase order will be due and payable net thirty (30) days after the end of the calendar quarter in which Company receives payment from the Customer. 3.6. Expenses. [Mention if expenses will be paid by Company] 4. RESPONSIBILITIES OF AGENCY Agent shall on behalf of the Company and upon its direction: 4.1. Negotiate with independent manufactures, sources, vendors in relation to prices, quantities, quality, delivery of Products and other items and materials related to Products; 4.2. Shall use commercially reasonable efforts to obtain the lowest available pricing for such Goods that is reasonably available in the Territory. Sources may be international, national, regional or local and, with respect to sourcing Goods for Sites outside of the United States, Goods may be exported to the Site country or they may be sourced locally. Prior to finalizing any purchasing commitment on behalf of Company, Agency shall first obtain written consent from Company as to the source and all material terms of the purchasing commitment, which consent shall not be unreasonably withheld. 4.3 Enter and negotiate purchasing contracts with manufacturers and sources in relation to purchase and procurement of Products. 4.4. Inspect Products of its quality and conformity to agreed specifications before shipping and delivering to Company for quality control purpose and issue inspection certifications where applicable; 4.5. Arrange for international transportation and/or insurance coverage related to shipping and delivery of Products to Company; © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 4 4.7. Conduct market research on new products, new and alternative sources of supply and procurements and market trends etc. [Add other responsibilities] 5. INSPECTION; RETURN 5.1 All Products must be inspected by Agency before delivering them to company. Payment for any Products shall not constitute an acceptance thereof or a waiver of inspection rights, and said Products shall remain subject to the inspection rights of Agency. 5.2 In the event that Agency determine that the quality of the Products do not conform with the specification agreed to or with the samples of Products shown, Agency shall promptly notify Company and request instruction to dispose the Products. Furthermore, if the Products are found to defective after the importation, Agency shall assist Company in arranging for return of the Products, and adjustments of monies due from the manufacturers, suppliers or sources. . 6. INDEMNIFICATION 6.1. Agency shall indemnify, defend and hold harmless Company, its subsidiaries, affiliates and each of their shareholders, officers, agents, employees, contractors and directors from and against any claim, demand, liability, loss, cost or expense, including but not limited to court costs or attorneys fees, asserted against or suffered or incurred by any of them directly or indirectly, arising out of or in any way related to or connected with Agency’s (i) activities as a Agency, including without limitation, any unauthorized representations made by Agency; (ii) breach of the terms of this Agreement; or (iii) violation of or failure to comply with any applicable federal, state or local law or regulation. 6.2. Company shall indemnify, defend and hold harmless Agency from and against any claim, demand, liability, loss, cost or expense, including but not limited to court costs or attorneys fees, asserted against or suffered or incurred by any of them directly or indirectly, arising out of or in any way related to or connected with (i) any unauthorized representations made by Company; (ii) breach of the terms of this Agreement; or (iii) violation of or failure to comply with any applicable federal, state or local law or regulation. 7. LIMITATION ON LIABILITY IN NO EVENT SHALL COMPANY BE LIABLE TO AGENCY OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS OR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED, AND WHETHER © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 5 BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF COMMISSIONS ACTUALLY PAID TO AGENCY PURSUANT TO THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. 8. CONFIDENTIALITY 8.1. For purposes of this Agreement, the term “Confidential Information” means any proprietary material or information of economic value disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) either directly or indirectly, in writing, orally or by inspection of tangible objects, including without limitation, material or information relating to a party’s research, development, products, product plans, services, Customer, customer lists, markets, software developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets, the receipt or disclosure of which may make the Receiving Party profitable, and competitive or the disclosure of which could be detrimental to the interests of Disclosing Party. 8.2. The Receiving Party shall not use the Disclosing Party’s Confidential Information for any purpose other than to exercise its rights and performs its obligations under this Agreement and shall not disclose Confidential Information to any third party. The Receiving Party shall use the same efforts to protect the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information, but no less than reasonable efforts. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. The Receiving Party should disclose Confidential Information to its employees only on a ‘need to know’ basis if the employees need the Confidential Information in order to fulfill their obligations in connection with the performance of this Agreement. 8.3. Confidential Information excludes information that: (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by documentation in existence at the time of disclosure; (iii) becomes known to the Receiving Party, without restriction from a third party not bound by an obligation of confidentiality, or (iv) was independently developed by the Receiving Party without any use of the Confidential Information of the Disclosing Party as demonstrated by documentation. The Receiving Party also may disclose Confidential Information to the extent disclosure is required by a law or by order or requirement of a court or other governmental authority, provided that the Receiving Party gives the Disclosing Party reasonable notice of the disclosure to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 6 9. TERM AND TERMINATION This Agreement shall commence on the Effective Date and shall remain in full force and effect for an initial term of six (6) months and shall automatically be extended for successive one (1) year periods unless either of the parties hereto gives the other written notice not later than thirty (30) days before the expiration of the term indicating that party’s intention not to extend this Agreement. Notwithstanding the foregoing, either shall have the right to terminate this Agreement upon thirty (30) days notice to the other party. In the event of such a notice, Agency shall continue to render services provided herein for all those orders which have been made during the notice period or prior to the end of the same and honor all prior commitments and fulfill the same under this Agreement. Company shall also be liable to pay for the orders of Products placed by Agency on Company’s behalf during the notice period in the same manner as discussed herein. 10. EFFECT OF TERMINATION 10.1 Agency shall return all Company Confidential Information and all demonstration units, literature, and sales aids of every kind within thirty (30) days after the termination of this Agreement, as Company may direct, at Agency’s expense. 10.2 Upon termination or expiration of this Agreement, all claims of Agency against Company, including without limitation those pertaining to the Commissions compensation hereunder, are hereby waived unless made in writing to Company by Agency within ninety (90) days of when such compensation would have been payable. 10.3 Company shall have the right after the expiration or termination of the Agreement to deal with any and all persons, including manufacturers, vendors , and suppliers, who dealt with Agency, without any liability of any kind to Agency. 10.4 COMPANY SHALL NOT, BY REASON OF THE EXPIRATION OR TERMINATION OF THIS AGREEMENT, BE LIABLE TO AGENCY FOR COMPENSATION, INDEMNIFICATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF ANY LOSS OF PROSPECTIVE PROFITS, ANTICIPATED SALES OR GOODWILL OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE IN CONNECTION WITH THIS AGREEMENT OR THE ANTICIPATION OF EXTENDED PERFORMANCE HEREUNDER. 11. WARRANTIES Agency warrants that: 11.1 Agency shall at all times during the term of this Agreement: (i) represent Company in a professional manner, (ii) look after Company’s best interests, (iii) not engage in any deceptive, © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 7 misleading, illegal or unethical practices that may be detrimental to Company, and (iv) act dutifully and in good faith; 11.2 Agency has full corporate authority and legal right to enter into this Agreement. 11.3 Agency will comply with all laws and regulations relating or pertaining to the procurement of Products; 11.4 Agency will not create any expenses chargeable to Company; 11.5 Agency will not bind Company with any written orders without the consent of the Company; [Add additional warranties] 12. FORCE MAJEURE Agency shall be excused from performance under this Agreement and not be liable to Company for delay in performance attributable in whole or in part to any cause beyond its reasonable control, including but not limited to, action or inaction of any government, war, civil disturbance, insurrection, sabotage, act of public enemy, labor strike, difficulty or dispute, unpredictable failure or delay in delivery by Agency 's sources or subcontractors, transportation difficulties, shortage of energy, materials, accident, fire, flood, storm or other act of God, or Company's fault or negligence. In the event of an excusable delay, Agency shall make reasonable efforts to notify Company of the nature and extent of such a delay and Agency will be entitled to a reasonable schedule extension. In the event a delay results from Company’s fault or negligence, Agency will also be entitled to an equitable adjustment calculated on a time and materials basis which shall be mutually agreed upon. 13. USE OF TRADEMARKS Agency agrees that it will not challenge the title of any rights of Company in and to the trademarks, tradenames, logos etc. (“Trademarks”) or make any claim or take any action adverse to Agency’s rights therein. Both Parties agree that they will not challenge the validity of this Agreement. Agency further agrees that all use by Agency or its agent of the Trademarks or domain name shall inure to the benefit of Company. Further (a) Agency shall not use, display or relate in any manner, either directly or indirectly, the Trademark in connection with any Products, and (b) Agency agrees that during the term of this Agreement and after its termination, however occurring, that Agency shall not: (i) use the Trademark or any other mark confusingly similar thereto in connection with any products or which would be likely to cause confusion between the parties or which would dilute the Trademark; or (ii) apply for or seek registration anywhere in the world, at any time, for the Trademark or any other mark confusingly similar thereto; or (iii) commit or do any act which might prejudice or adversely affect the validity of the © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 8 Trademark or Agency's ownership thereof or dilute or diminish the value of the Trademark to Agency. 14. CONFLICT OF INTEREST; NON COMPETITION Agency shall not participate as a partner, employee, independent contractor, either directly or indirectly, in any opportunity that is competitive to Company’s business or Products and shall not market, procure or promote, either directly or indirectly, a product competitive to the Products during the term of this Agreement and for one (1) year after thereafter. This ‘non- competition’ restriction shall also apply to Agency’s activity in the Territory. 15. NON-SOLICITATION Agency agrees that during the term of this Agreement and for one (1) year thereafter, Agency shall not directly or indirectly, on its own or on the behalf of any other person or entity, solicit, contract with or hire or attempt to solicit, contract or hires any sales agent, employee, customer, source or vendor of Company or terminate or alter such person’s business or contractual relationship with Company. 16. BOOKS AND RECORDS. 16.1 Agency shall maintain and make available to Company accurate books, records, and accounts relating to the business of Agency with respect to the Products. Such books and records shall be kept at Agency’s principle place of business for at least three (3) years following the end of the calendar quarter to which they pertain. Company shall have the right to inspect at reasonable times all of the foregoing books, records and accounts. Agency shall also maintain a record of any customer complaints regarding either the Products or Company and immediately forward to Company the information regarding those complaints. 16.2 Agency shall provide a report to Company every ___ weeks in a format to be mutually agreed upon by the parties setting forth Agency’s procurement activities relating to the Products. 17. LIMITATION OF LIABILITY In no event shall either Party be liable to the other Party or any other Person for any indirect, punitive (to the fullest extent permitted by applicable law), special, consequential or incidental damages, however caused and on any theory of liability arising out of this agreement, and whether or not such Party has been advised of the possibility of such damage. These limitations © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 9 shall apply notwithstanding any failure of essential purpose of any limited remedy provided herein. Notwithstanding the foregoing provisions of this Section 17, the foregoing limitations of liability set forth in this Section 17 shall not apply to liability arising under Sections 6.1 or 6.2 and shall not affect the remedies expressly provided in Section 18. 18. REMEDIES In addition to any damages which may be awarded as a result of a breach of this Agreement by Agency, Company shall be entitled to injunctive relief. Agency acknowledges that a remedy at law for any breach or threatened breach of this Agreement may be inadequate, and that accordingly, Company shall be entitled to seek injunctive relief in addition to any other remedy it may have. Neither Company's right to injunctive relief nor any other provision of this Agreement shall be construed as prohibiting Company from pursuing any other legal or equitable remedy available to it for such breach or threatened breach, including the recovery of damages and attorney's fees. 19. SURVIVAL OF CERTAIN TERMS The Agency of Sections 8, 10.4, 11, 13, 14, 15, 17, and 18 shall survive the termination or expiration of this Agreement for any reason. All other rights and obligations of the parties shall cease upon the effective termination date of this Agreement. 20. MISCELLANEOUS 20.1. Governing Law Jurisdiction. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the State of __________, USA without reference to conflict of laws principles. 20.2. Arbitration. In the event that any dispute between the parties arising from or concerning the subject matter of this Agreement cannot be resolved through good faith negotiation, the parties will refer the dispute(s) to the American Arbitration Association for resolution through binding arbitration by a single arbitrator pursuant to the American Arbitration Association’s rules applicable to commercial disputes. The arbitration will be held in the State of __________, USA. Each party shall bear its own costs and attorney’s fees associated with such arbitration. This section shall not prevent either party from obtaining temporary injunctive relief by a court of competent jurisdiction pending resolution by the arbitrator. 20.3. Notices. All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally, by registered or certified mail (return receipt requested) or by facsimile or by confirmed email to a valid email address of the recipient or © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 10 similar method of communication, to the parties at the following addresses (or such other address as may have been furnished by or on behalf of such party by like notice): If to Company: ______________________ ______________________ ______________________ ______________________ If to Agency: ______________________ ______________________ ______________________ ______________________ Communications sent by facsimile shall be deemed effectively delivered upon dispatch. Communications sent by registered or certified mail shall be deemed effectively delivered five (5) calendar days after mailing. 20.4. Force Majeure. Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, delay in component supply, equipment failure, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non- performing party. The non-performing party must send a prompt written notice to the other party of such happening. 20.5. Non-Assignability and Binding Effect. A mutually agreed consideration for Company’s entering into this Agreement is the reputation, business standing, and goodwill already honored and enjoyed by Agency under its present ownership, and, accordingly, Agency agrees that its rights and obligations under this Agreement may not be transferred or assigned directly, indirectly or by a change in control without Company’s prior written consent. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns. 20.6. Modification. No modification of, or amendment to, this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the party to be © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 11 charged, and the waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default. 20.7. Severability. The invalidity or unenforceability of any provision of this Agreement, or any terms thereof, shall not affect the validity of this Agreement as a whole, which shall at all times remain in full force and effect. 20.8. United States Export Controls. Agency shall comply with the Export Administration Regulations and other United States laws and regulations governing exports and reexports of the Products in effect from time to time. 20.9. Counterparts. This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed an original. 20.10. Government Approvals. Agency hereby represents and warrants that no consent, approval or authorization, or designation, declaration or filing with any governmental authority in the Territory is required in connection with the valid execution, delivery and performance of this Agreement. 20.11. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement shall be effective unless in writing signed by the party to be charged. The parties agree that the terms and conditions of this Agreement shall prevail, notwithstanding contrary or additional terms in any purchase order. IN WITNESS WHEREOF, the parties hereto have caused their duly authorized Agencys to execute this Agreement, effective as of the Effective Date. (Company) (Agency) Signature Signature Printed Name Printed Name © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 12 Title Title SCHEDULE A PRODUCTS © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 13 SCHEDULE B TERRITORY © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 14 SCHEDULE C COMMISSION SCHEDULE © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 15 © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 16 “All forms and documents from DocStoc are provided “as is” without warranty of any kind, express or implied. DocStoc does not provide any legal advice, and assumes no responsibility for the enforceability or effectiveness of its documents. Users should consult with a lawyer if there is any question as to the appropriateness of the documents for their particular situation.” © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 17
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