Non-Exclusive Purchasing Agency Agreement

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Non-Exclusive Purchasing Agency Agreement Powered By Docstoc
					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.




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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.


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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;



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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


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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.



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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,



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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



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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


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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


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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




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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




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Title                                                      Title




SCHEDULE A

PRODUCTS




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SCHEDULE B

TERRITORY




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SCHEDULE C

COMMISSION SCHEDULE




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DOCUMENT INFO
Description: 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.