Our Terms

 

between the client

– hereinafter referred to as the company –

and

Agency Frisch International Consulting GmbH & Co. KG
– hereinafter referred to as commercial agent –

 

  • 1 Legal position of the commercial agent

(1) The commercial agent acts as sole agent to represent the company in China, Taiwan, Hong Kong, Vietnam, South Korea, the USA and India. Changes to the representative district require an addendum to this contract signed by both contracting parties in order to be effective.

(2) The company is not authorized to act in the assigned representative district itself or through commissioned third parties. For the commission claims of the commercial agent from transactions that come about directly through the company or commissioned third parties without his involvement, § 4 para. 1 of this contract.

(3) The representation extends to all of the company’s products that are currently part of its production and sales program. The company’s products, which will be part of its production and sales program in the future, are automatically included in the agreement.

(4) The entire supplier base in the representative district at the time this contract comes into force will be taken over by the commercial agent for further support.

5) The payment transactions are usually made through the commercial agent who, based on the agreement, is authorized to negotiate or conclude the sale or purchase of goods or services only on behalf of the payer or only on behalf of the payee (§2.2 ZAG)

 

  • 2 Obligations of the Commercial Agent

(1) The commercial agent has the task of concluding/arranging purchasing transactions in the name and for the account of the company in the assigned representative district. In doing so, he must look after the interests of the company with the diligence of a prudent businessman and use his best efforts to expand and increase sales. He has to maintain the business relationships with the potential suppliers of the company and to visit them regularly. The commercial agent is/is not entitled to collection.

(2) The commercial agent must inform the company of every brokerage/conclusion of business on a regular basis and inform the company about existing business initiations by sending copies of the correspondence or by making notes on the file. If business initiations or business brokerage/business deals involve new suppliers, the company must be specifically informed of this.

(3) The commercial agent is obliged to check the creditworthiness of existing or potential suppliers as far as possible and to support the company’s efforts to determine solvency. Doubts about the creditworthiness of an existing or potential supplier must be reported to the company immediately. He is not obliged to use credit information services or similar.

(4) The commercial agent undertakes to protect the company’s trade and business secrets and to keep the documents relating to them and the commercial agency relationship in such a way that they are not accessible to third parties. He must maintain secrecy about all knowledge acquired during the contract period, about business processes and internal, especially confidential matters, even after the end of the contract.

(5) The representation is transferred personally to the commercial agent. He is not entitled to transfer the exercise of commercial agency to a third party without the express consent of the company or to tacitly tolerate the exercise of commercial agency by a third party.

(6) The commercial agent is entitled to conclude contracts with sub-agents or employed travelers whom he intends to use as vicarious agents to fulfill his contractual obligations.

 

  • 3 Company Responsibilities

(1) The company must support the commercial agent in carrying out his work to the best of his ability and always provide him with the necessary information and information. When exercising its right to issue instructions, the company must take into account the independent position of the commercial agent. The required information and information includes everything that is of essential importance for the activity and the remuneration claims of the commercial agent (e.g. changes to the products, prices or terms and conditions, special advertising measures).

(2) Copies of correspondence with suppliers or interested parties belonging to the district are to be sent to the commercial agent without delay; The commercial agent must be informed immediately about negotiations and planned transactions with district suppliers or interested parties that are being conducted with the consent of the commercial agent or without his cooperation.

(3) The company is obliged to carry out all commissionable transactions that have come about. Provision must be made to ensure that transactions brokered/concluded by the commercial agent can also be properly processed. The execution of completed transactions can only be rejected if the commercial agent has been informed before the transaction that there are particular difficulties with the transaction. If a transaction brokered or concluded by the commercial agent is not executed in whole or in part, the commercial agent must be informed of this. He must also be informed of the reasons for the non-execution. The legal consequences of the complete or partial non-execution are determined according to § 6.

(4) Regarding the required information within the meaning of para. 1 also includes informing the commercial agent of planned cooperations or mergers with other companies or an intended sale or closure of the company in good time so that his entrepreneurial dispositions – in particular with regard to exercising his right of termination – are not impaired.

 

  • 4 Commissionable Transactions

(1) The commercial agent is entitled to commission for all transactions brokered/completed by him, for all regional transactions within the meaning of § 87 para. 2 HGB and for all transactions that come about without his direct involvement with third parties whom he has recruited as a supplier for transactions of the same type. A prerequisite for the right to commission is that the business transaction takes place during the existing agency contract, regardless of the time at which the business is executed by the entrepreneur.

(2) Business transactions that come about after the termination of this contract are only eligible for commission for the commercial agent if the business transaction is mainly due to his activity. The commercial agent is not entitled to a commission for business transactions that only come about after 3 months have elapsed after the end of the contract. The commercial agent also does not acquire a right to commission for such transactions for which a predecessor according to § 87 para. 3 HGB can claim commissions.

(3) The commission claim of the commercial agent arises as an unconditional claim as soon as and to the extent that the entrepreneur has carried out the commissionable business. If the supplier is obliged to perform in advance, the claim to commission already arises if and to the extent that the customer fulfills his obligation to perform in advance.

 

  • 5 Amount of commission

(1) The commission to which the commercial agent is entitled for all transactions subject to commission mentioned in § 4 is agreed separately between the company and the commercial agent on a percentage basis. This will be paid by the commercial agent plus invoiced for sales tax.

(2) The commission calculation is based on the full EXW or FOB price negotiated by the commercial agent. Discounts or rebates granted by the supplier result in a reduction in commission, but not in a reduction in the commission rate.

(3) The calculation bases for the commission calculation mentioned in the above paragraphs can only be changed by way of contractual agreements.

 

  • 6 Loss of entitlement to commission

(1) In the event of non-execution of a concluded transaction, the right to commission shall only lapse if and to the extent that this is due to circumstances for which the entrepreneur is not responsible.

(2) The right to commission also lapses if it is certain that the supplier will not perform; it is reduced if the supplier only partially performs. The commercial agent must repay any amounts already received to the company.

(3) The company is only obliged to assert and enforce its claim for performance against the supplier in court if this measure offers prospects of success. In other cases, the company is only obliged to assert and enforce its claim for performance in court if the commercial agent requests this and if he makes a reasonable contribution to the costs of the proceedings.

 

  • 7 Commission Statement

(1) The commercial agent must account for the commissions due at the end of each month or at the beginning of the following month. The commission statement must include those commission claims (net commission) that have arisen as unconditional claims by the end of the month as a result of the execution of the transaction by the company/the payment of the purchase price by the customer.

(2) The VAT due on the commissions must be shown separately in the commission statement.

 

  • 8 Illness of sales representative, holiday

(1) The commercial agent must inform the company immediately if he is prevented from performing his duties for more than {1 week} due to illness.

(2) If the illness lasts longer than {one week}, the entrepreneur is entitled to work himself or through agents in the district of the commercial agent. The selection of the representative is the sole responsibility of the company. The activity of the company or third parties in the district must not lead to a reduction in the commissions due to the commercial agent, provided that the duration of the illness{4} does not exceed weeks.

(3) If the illness of the commercial agent exceeds the duration of{4} weeks, half of the costs arising from the processing of the district by third parties shall be borne by the commercial agent. However, this regulation only applies to the period from the 5th week to the end of 6 months from the onset of the illness. After 6 months, a regulation must be made that takes into account the situation then.

(4) The commercial agent is obliged, if possible, to take his vacation during off-peak hours and at least the vacation date{6} to be coordinated with the company weeks before the start of the holiday. The same applies to other temporary interruptions in activity.

 

  • 10 non-compete agreements

(1) During the existence of the contractual relationship with the company, the commercial agent is only entitled with the express written consent of the company to represent other companies, to participate directly or indirectly in another company or to support another company himself, provided that this other companies manufactures and/or sells products and/or offers other services that are the same or similar to those of the company.
(3) The commercial agent hereby undertakes, for a period of 2 years after termination of the contractual relationship, to carry out any commercial activity within the contractual territory within the meaning of Section 1 Para. 1 of this contract with regard to the in § 1 para. 3 mentioned products and services for a competing company. This obligation extends to activities in an employment relationship as well as to those as a self-employed person (e.g. as a commercial agent or authorized dealer). The commercial agent is also prohibited from participating directly or indirectly in a competing company during the period mentioned.

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  • 11 Term, Termination

The contractual relationship begins immediately and is concluded for an indefinite period. The contract can be terminated by either contractual partner in the first contract year with a notice period of one month, in the second contract year with a notice period of two months, in the third to fifth year with a notice period of six months to the end of a calendar month by registered letter, from the sixth year, the notice period is one year. The mutual right to terminate for good cause remains unaffected. If the contractual relationship is terminated, the commercial agent must return documents and other material that the company provided him with at the beginning of the contractual relationship, insofar as they have not been used as intended, as well as all other documents required to maintain and carry out the operation, such as customer correspondence, return to the company.

 

  • 12 Miscellaneous Provisions

(1) The limitation period for all claims arising from this contract is 12 months. The period begins when the claim becomes due or when we become aware that the claim has arisen.
(2) The exclusive local place of jurisdiction for disputes arising from this contract is the registered office of the commercial agent.
(3) There are no ancillary agreements to this contract. Supplements to the contract must be in writing and signed by both contracting parties to be effective. This formal requirement can only be waived by written agreement.
(4) If a point that needs to be regulated is not covered by this contract text, the statutory provisions of § 84 ff. HGB or the principles developed by case law shall also apply.
(5) The nullity of a provision of this contract does not lead to the nullity of the entire contract. The void provision is to be replaced by an agreement that comes as close as possible to the purpose of the contract and the will of the contracting parties.

 

 

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