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Agency agreement - example template

This is an example template for an agency agreement under Belgian law. It should more or less comprise all elements that are recommended to be addressed, of course how they are addressed is subject to negotiation between the parties. The document therefore can serve as a guideline for the negotiations.

Note: do not commercialize this template.
Note: consider seeking legal help in using the template if you find yourself short of "legal savvy" in that area.

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Agency agreement - example template

  1. 1. Copyright: @TommyVandepitte MUTUALLY NON-EXCLUSIVE COMMERCIAL AGENCY AGREEMENT BETWEEN On the one hand XXX, a limited liability company (“<corporate form in the local language>”) incorporated under <jurisdiction of incorporation> law, having its corporate seat at yyy, BELGIUM, registered in the central register of enterprises (KBO) by the number 0nnn.nnn.nnn (<location “griffie”>) and with VAT number BE 0nnn.nnn.nnn, Hereinafter referred to as the Principal or XXX Herein duely represented by <representative>, in his capacity of <capacity> and/or <representative>, in his capacity of <capacity>, who declare(s) and guarantee(s) that he/they can duely represent XXX On the other hand YYY, a limited liability company (“BVBA”) incorporated under Belgian law, having its corporate seat at yyy, BELGIUM, registered in the central register of enterprises (KBO) by the number 0nnn.nnn.nnn (<location “griffie”>) and with VAT number BE 0nnn.nnn.nnn, Hereinafter referred to as the Agent or YYY Herein duely represented by <representative>, in his capacity of <capacity> and/or <representative>, in his capacity of <capacity>, who declare(s) and guarantee(s) that he/they can duely represent YYY XXX and YYY separately can be referred to as a Party. XXX and YYY jointly can be referred to as the Parties. THE FOLLOWING HAS BEEN STATED XXX produces a number of products in amongst others the following ranges: <product ranges>. Information on its products and services can amongst other be found on the website www.XXX.com. YYY is active in a range of activities amongst which <range of activities> and intermediary services in the <sector relevant fort his agreement> sector. Information on its products and services can be found on the website www.YYY.com. Copyright: @TommyVandepitte 1 Copyright: @TommyVandepitte
  2. 2. Copyright: @TommyVandepitte YYY continues to provide its range of services, the services under this Agreement will only be a part of that. Nevertheless, Parties acknowledge that that does not hinder the qualification of YYY as commercial agent. YYY is amongst others active on the region of <region>. YYY mainly operates and will operate its business from its Belgian establishment. XXX wants to engage YYY in the distribution of its products to (potential) customers established or active in the region mentioned. YYY and XXX see mutual benefits in a cooperation and that is why they have come to this agreement setting out the terms and conditions of this cooperation. In their relations to eachother Parties will act dutifully and in good faith. THE FOLLOWING IS AGREED UPON Article 1 : Object The Agent will on an independent, continuous but non-full time, two-way non-exclusive basis intermediate in the region of <region> in the sale of (part of) the Principal’s products and services. Article 2 : Term 2.1. Basic This Agreement is of indetermined term. It starts at the date of execution by both Parties, and as the case may be the last Party, of this document. 2.2. Dissolution This agreement is automatically dissolved - in case the corporation of one of the Parties is dissolved, voluntarily or as a consequence of the law for example (under Belgian law) in case of bankruptcy; - in case a Party is declared bankrupt or a similar state of insolvency; - in case the legal or factual control over a Party changes for example due to a transfer of equity; or - <other dissolution conditions>. The Party aware of such condition shall inform the other Party. 2.3. Termination for convenience Each Party can terminate this Agreement by the end of a calendar year by giving at least three (3) months prior written notice. This will only be possible for the first time by the end of the first full year this Agreement is in force. 2.4. Termination for cause Copyright: @TommyVandepitte 2 Copyright: @TommyVandepitte
  3. 3. Copyright: @TommyVandepitte Either Party may terminate this Agreement in writing with immediate effect, without necessity for judicial action prior to the exercise of the right to termination of this Article, - in the event of a Force Majeure Event continuing for a period of more than three (3) months; - in the event a Party is in material breach of this Agreement and either that breach is not capable of remedy or, if the breach is capable of remedy, the Party in breach has failed to remedy the breach within thirty (30) days after receiving written notice of default requiring it to do so. Artikel 3 : Remuneration 3.1. Entitlement to remuneration The Agent is entitled to a commission on commercial transactions concluded during the period covered by the agency contract: (a) where the transaction has been concluded as a result of his action; or (b) where the transaction is concluded with a third party whom he has previously acquired as a customer for transactions of the same kind; There is a presumption that a transaction is concluded as the result of the action of the Agent in the following cases: - the agreement between the Principal and a customer which has its corporate seat or factual headquarters in a country in the Region is concluded during the term of this Agreement or six month after its end and o the Agent has a prior agreement with that customer to provide his services e.g. as a consultant; o the Agent can prove to have contacted that customer in writing (which includes email) referring to the Principal as provider of the products or services in scope, prior to the customer’s transanction with the Principal; or o the Agent has prior informed the Principal in writing of contacts with that customer or an affiliate of that customer; or - the agreement between the Principal and a customer which has a significant activity in a country in the Region is concluded during the term of this Agreement or six month after its end, and the transaction is in whole or in part meant for the Principal to deliver or deploy products or services in scope in the Region, and o the Agent has a prior agreement with that customer or one or more of its establishments or affiliates in the Region to provide his services e.g. as a consultant; o the Agent can prove to have contacted one or more of that customer’s establishments or affiliates in the Region in writing (which includes email) referring to the Principal as provider of provider of the products or services in scope, prior to the customer’s transanction with the Principal; or o the Agent has prior informed the Principal in writing of contacts with that customer’s establishments or affiliates in the Region. The Principal has to inform the Agent of his entitlement to commission as soon as he is aware of it. Copyright: @TommyVandepitte 3 Copyright: @TommyVandepitte
  4. 4. Copyright: @TommyVandepitte In case there are two agents that are potentially entitled to the commission, the entitlement of the agent that first contacted the customer if and when the Principal has prior and duely notified the Agent of such other contacts. In case multiple agents contacted the same customer, the Principal could not have reasonably prior informed the Agent, but still informed as soon as possible, the Agent’s entitlement to commission is reduced to half. In the other cases, the Principal may be confronted with multiple entitlement of agents. 3.2. Commission The Agent is entitled to a commission of <percentage> percent of the price of the commercial transaction. The price as basis for the commission is the highest of the following: - the price the Agent has been able to negotiate with the customer if and when it is not below the price in the next bullet; and - the price the Principal set in the information he has provided to the Agent; disregarding any reductions, rebates, abatements, drawbacks, or other discounts granted by the Principal to the customer. That price does not include the transportation costs, taxes or levies. The Principal has to provide the Agent with all information required to duely calculate the commission. 3.3. Commission due and actionable The commission is due and actionable as soon as the commercial transaction between the Principal and the customer - is concluded; - is executed, partially or in whole, by one party, and/or - should have been concluded, but is not and the Principal has not communicated in writing a good economic reason for the non-conclusion within 15 calendar days after the Agent has queried such reason. Any event thereafter cannot affect the Agent’s commission, unless expressly stated otherwise in this Agreement. The Principal has to inform the Agent that a commission is due and actionable as soon as he is aware of it. 3.4. Invoice The Agent will invoice the commission to the Principal at the lastest the fifth business day of the month following the moment the commission is due and actionable. The Principal has to provide the Agent with all information the Agent may require to duely invoice the commission. The Principal shall raise any protest against an invoice, in whole or in part, within fiteen (15) calendar days after receiving it. Any protest thereafter will considered to be too late and void of consequences. Copyright: @TommyVandepitte 4 Copyright: @TommyVandepitte
  5. 5. Copyright: @TommyVandepitte 3.5. Taxes All prices laid down in the Agreement are excluding Value Added Tax (VAT). The Principal shall pay all taxes and levies imposed by any governmental and local authority by reason of the performance of the Services, except taxes imposed on the net income of the Agent. 3.6. Payment The Principal will pay the commission - within fifteen (15) calendar days after receipt of a correct invoice; - via wire transfer and/or at the corporate seat of the Agent; In case of late payment interest on the commission will automatically and without requirement of any formality be due at the interest rate for late payment between merchants as determined under Belgian law. 3.7. Extinguish The entitlement to commission extinguishes if and when the commercial transaction between the Principal and the customer cannot be executed due to a Force Majeur Event that inhibits the execution of the transaction for at least three (3) consecutive months. If entitlement to commission extinguishes the Agent will re-emburse the Principal for the received commission within one month of the establishment of the extinguishing. Article 4 : In tuitu firmae 4.1. Principle Neither party shall assign or transfer any right, obligation or the position of them stemming therefrom to a third party without prior written consent from the other party. 4.2. Sub-agents The Agent may – under his own responsibility – appoint sub-agents, contractors or freelancers. They have no relationship to the Principal. Article 5 : Activities of the Agent 5.1. Intermediation The Agent will - contact potential customer for the Principal, as the case may be in the context of an assigment the Agent has as a service provider to such potential customers; - present potential customer for the Principal with the products and services the Principal provides, as specified in an annex to this Agreement. The above mentioned intermediation activities, apart and together, are herein referred to as the Assignment of the Agent. Copyright: @TommyVandepitte 5 Copyright: @TommyVandepitte
  6. 6. Copyright: @TommyVandepitte The Assignment of the Agent is limited to the region of <region> (described in further detail in annex), hereinafter the Region. 5.2. Representation (non) In principle, the Agent is no representative of the Principal. The Agent will have neither the right nor the authority to enter into obligations, expressly or tacitly for the account of the Principal, and will not be authorized to represent the Principal as its intermediary except by express written mandate. The Agent is explicitly empowered to and may act as follows: - negotiate a price with the potential customer of the Principal, within the range the Principal sets for the Agent and under the reservation that the Principal has to confirm, - start up negotiations with the potential customer based on the documentation provided by the Principal and under the reservation that the Principal has to confirm. 5.3. Publicity No press releases, public announcements or public disclosures relating to the Agreement, including but not limited to promotional or sales material, will be issued by either of the Parties without the express prior written consent of the other Party. 5.4. Delcredere (non) The Agent is not accountable, responsible or liable for the solvability of a third party / customer. This includes amongst others that the Agent does not check the financial information of the potential customers. 5.5. Information and materials The Principal will provide the Agent with the information and materials necessary and useful for the proper execution of the Agent’s Assignment. This includes amongst others any changes to the information already provided. The basic information to be provided is described in annex. The Agent can request any additional information from the Principal, which shall provided that information, unless it has and communicates a good reason not to provide that information. 5.6. One point of contact The Principal appoints a duely authorized representative as the single point of contact for the Agent. 5.7. Reporting The Agent will report on his activities, if any, on a regular basis. If and when he contacts prospects he will insert that in his report. Copyright: @TommyVandepitte 6 Copyright: @TommyVandepitte
  7. 7. Copyright: @TommyVandepitte Article 6. Exclusivity (non) The Principal is not the exclusive principal for which the Agent intermediates. The Agent may enter into (similar) agreements with providers of competing products and services as the Principal. The Agent is not the exclusive agent which the Principal deploys, not even for the Region in which the Agent will be active. The Principal may enter into (similar) agreements with agents of competing intermediation services as the Agent. The Principal will prior notify the Agent if and when he enters in an agreement with another agent for the same Region. The Principal may also enter directly into purchase agreements with customers in the Region or that have an effect in the Region (e.g. via the network or establishments of the customer). The Principal will promptly notify the Agent of any contacts that may lead to such a deal. The Agent will not undermine the actions of other agents of the Principal nor the Principal in contacting potential customers for example by challenging their authority or their reputation. The Principal warrants and guarantees that other agents that may compete with the Agent are cq. will be bound by a similar commitment in favor of the Agent. The Principal commits to, warrants and guarantees that he himself will not undermine the actions of the Agent in contacting potential customers. Article 7. Confidentiality The Parties treat any company or trade secrets and other confidential data they may get acquainted with in relation to this Agreement confidentially, both during this Agreement or after its termination. As company and/or trade secrets Parties qualify at least the following: - internal pricing and margins - xxx Documents exchanged between the Parties are considered to be non-confidential, unless they clearly are confidential or they are expressly marked as confidential. Clearly not confidential are: - Information in the public domain or information which has legitimately been made public without contravening the present Agreement or any other law or regulation that protect business secrecy; - Information legitimately received from third parties, insofar as these third parties are not themselves subject to a duty to observe secrecy; - Information, which has been developed or discovered completely independently of the other Party and without breaching condifentential of the other Party. Article 8. Liability A Party is not liable for anything not stated expressly in this Agreement. Copyright: @TommyVandepitte 7 Copyright: @TommyVandepitte
  8. 8. Copyright: @TommyVandepitte The Parties will meet their commitments with their commercial best efforts (“middelenverbintenis”), unless this Agreement states otherwise. Neither Party will be liable either in whole or in part vis-à-vis the other Party for any default or delays in the performance of their respective obligations to the extent such default or delay was caused by a Force Majeure Event such as (to the extent this is not attributable to the Party claiming protection of this Article) an act of God, governmental act (other than a Change in the Applicable Laws and Regulations), war, fire, flood, explosion or civil commotion. The liability of the Agent is limited to the direct consequence of any fault under this agreement, excluding amongst others any indirect damages in any form, including but not limited to loss of goodwill of the affected Party, loss of business opportunity of the affected Party, loss of (anticipated) savings of the affected Party, and any reputation damage of the affected Party arising out of or in any manner relating to this Agreement. The liability of the Agent is limited to the amounts due and received as commission under this Agreement by the Agent in the year proceeding the claim. The Parties will inform each other of any potential claim for breach or non-performance in connection with this Agreement as soon as reasonably possible (for information purposes only). Neither Party to this Agreement may assert by written notice against the other Party any claim for breach or non-performance in connection with this Agreement unless the asserting Party has given the other Party written notice of the event giving rise to liability within six (6) months after the asserting Party first knew or should have known of such event. For the purposes of the limitations of liability set forth in this Article, all references to either Party shall be deemed to include such Party together with all of its subsidiaries and Affiliates and its and their respective Representatives. Article 9. Independence This Agreement will be executed by the Parties in independence. Nothing in this Agreement is intended or shall be deemed to constitute a partnership or a master and servant relationship between the Parties. The Agent can organize his activities, both within and outside of this Agreement, as he pleases. All documents, correspondence, instructions, and negotiations between the Parties have to be construed as a necessary instrument in the execution of the Agreement and not as an expression of any dependency. Article 10. Compliance Each Party is accountable and responsible for its compliance with the applicable legislation and regulation such as tax, social security, registration, etc. If that requires an action from the other Party, Parties can give eachother reasonable instructions. Copyright: @TommyVandepitte 8 Copyright: @TommyVandepitte
  9. 9. Copyright: @TommyVandepitte Article 11. Waiver The fact that one of the Parties fails to exercise or enforce its rights under the Agreement vis-à-vis the other Party will in no way constitute a waiver of its rights by that Party. Article 12. Severability In the event that any one or more of the Articles of this Agreement shall, for any reason, be held to be devoid, invalid, illegal or unenforceable, - the Parties will be relieved of all obligations arising from that provision, but only in so far as that provision is invalid, unlawful or unenforceable; - such a provision shall be deemed several and the remainder shall remain in full force and effect insofar as the remainder shall constitute a workable instrument for the purpose of carrying out the intent of the parties; and - the provision in question will be amended in so far as this is necessary in order to make it valid, lawful or enforceable, without affecting the spirit of the Agreement. Article 13. Applicable law The formation, validity, construction and performance of this Agreement shall be governed by the laws of Belgium. Article 14. Entire agreement The Agreement constitutes the full agreement between the Parties and supersedes every agreement, offer or communication, verbal or written, exchanged or entered into between the Parties prior to the date of the Agreement and relating to the same topic. Any other (general or invoice) terms and conditions of the Parties do not apply. There are no representations, warranties, conditions, terms or collateral contracts affecting the transaction contemplated in this Agreement except as set out in this Agreement. Any amendment of this Agreement shall not be binding on the Parties unless set out in writing, expressed to amend this Agreement and signed by authorised representatives of each of the Parties. Article 15. Dispute resolution Discussions with regard to the validity, interpretation, or execution of this Agreement, that are not resolved in an amicable way - can be subjected to arbitration. The arbitration - will be conducted in English; - will be vested in Brussels, Belgium; - will be performed by a single arbiter; - will – in as far as this Agreement does not diverge - follow the rules and procedures of CEPANI (www.cepani.be); - and its result will be final and binding upon the Parties. Copyright: @TommyVandepitte 9 Copyright: @TommyVandepitte
  10. 10. Copyright: @TommyVandepitte Only in case the Belgian law is interpreted as not allowing arbitration in commercial agency case, discussions with regard to the validity, interpretation, or execution of this Agreement, that are not resolved in an amicable way - can be presented to the courts having jurisdiction over the domicile of the Agent. Article 16. Communication. English shall be used in connection with this Agreement and/or all the notifications required by the parties unless otherwise agreed upon. For the execution of this Agreement Parties choose the addresses at the beginning of this Agreement as their domicile. Correspondence via mail (postal services), fax and email will be considered “in writing” under this agreement. However, - for fax that will only be so in case there is a confirmation that the fax has been sent which includes at least the first page of the fax message. - for email that will only be so o when the recieving Party has acknowledged receipt within 48 hours or o in case such acknowledgement was not timely received, when the same email has been forwarded to both the primary and the secondary emailaddress (see hereunder) - a mail will only be considered as received seven (7) working days after it has been sent which is proven by the postal stamp; All correspondence, faxes or other written communication concerning this Agreement, is to be sent to the following coordinates: For XXX For YYY Attn: (contact) Attn.: (contact) Mail: domicile (see higher) Mail: domicile (see higher) Fax: xxx Fax: xxx Email: xxx Email: xxx Secondary email: xxx Secondary email: xxx Invoices are to be addressed to: For XXX Attn.: Accounting Department Mail: domicile (see higher) Fax: xxx Email: xxx Changes to the above particulars will be notified in writing. The agreement is drafted in two orgininal executions and each Party acknowledges to have received one originally executed document. Copyright: @TommyVandepitte 10 Copyright: @TommyVandepitte
  11. 11. Copyright: @TommyVandepitte On behalf of XXX On behalf of YYY (date + sign with “read and approved”) (date + sign with “read and approved”) Copyright: @TommyVandepitte 11 Copyright: @TommyVandepitte
  12. 12. Copyright: @TommyVandepitte Annex: Products and services in scope of the Assignment xxx Copyright: @TommyVandepitte 12 Copyright: @TommyVandepitte
  13. 13. Copyright: @TommyVandepitte Annex: the Region e.g. Africa Copyright: @TommyVandepitte 13 Copyright: @TommyVandepitte
  14. 14. Copyright: @TommyVandepitte Annex: Basic information and materials to be provided by the Principal A catalog of the products and services in scope Pricelist(s) and/or price range(s) for the products and services in scope Brochures of products and services in scope which the Agent may hand over to potential customers - paper Brochures of products and services in scope which the Agent may hand over to potential customers – digital (pdf) Sample(s) of the products in scope which the Agent can use for demonstration purposes Sample(s) of the products in scope which the Agent can (in reasonable amounts) hand out to potential customers Small representation gifts bearing the brand of the Principal which the Agent can (in reasonable amounts) hand out to potential customers subject to the anti-bribery policy of the Principal: o pens o stationary o basebal caps o T-shirts o <other> Copyright: @TommyVandepitte 14 Copyright: @TommyVandepitte

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