The agreement between a broker and his principal by Gupta

V1_CH 23-Volume 1

An agreement to deliver a certain quantity of cotton is not an agreement for sale of goods or merchandise and if attested, it falls within section 2 clause (5) (i) and must be stamped under Article 15 as a bond?Collector of Nimar v Lakshmichandra 98 IC 631 : AIR 1927 Nag 72. An agreement for the sale of goods does not require a stamp although it contains stipulations as to warehousing, insurance of goods and reference to arbitration Kyd v Mahomed 15 Mad 150 (FB); Bombay Co. Ltd.  v National Jute Mills Co. Ltd. 39 Cal 669. Similarly, a guarantee for the payment of goods supplied or to be supplied to a third person is exempted from stamp duty?Warrington v Furbar (1807)8 East 242: 103 E.R. 334; Martin v Wright (1845)6 QB 917.

An agreement to refer a dispute arising out of a contract for sale of goods to arbitration is a part of the original contract for sale and is exempted from stamp duty?The Bombay Co. Ltd.  v The National Jute Mills Co. Ltd. 39 Cal 669; Kyd. v Mahammed 15 Mad 150 (FB).

The agreement between a broker and his principal in which goods are bought by the broker with condition to indemnify the principal from any loss on the resale, was held to be exempted from any stamp duty because it was a contract relating to the sale of goods?Curry v Edensor (1709)3 Term Rep 523: 100 ER 713.  A contract of indemnify against the claim of third person in respect of goods sold was held not liable to stamp duty?Herson v. Grainger (1805)5 Esp. 269.

But, Broker?s or Agent?s bought and sold notes to his principal are chargeable to stamp duty under Article 43 though they relate to an agreement for sale of goods?Ralli v Caramalli Fazal 14 Bom 102; The Bombay Co. Ltd.  v  The National Jute Mills Co. Ltd., 39 Cal 669 : 16 IC 153. However, a contract note relating to purchase or sale of goods, as between principal and principal was held to come under the exemption and does not fall within Article 43 of Schedule I of the Stamp Act?Superintendent of Stamps, Bombay v. Brean & Co., 46 Bom LR 686: AIR 1944 Bom 325 (SB).

FORMS

Appointment of selling agent for specified areas AN AGREEMENT made the……………………..  day of……………………..  BETWEEN [manufacturing company] [description] having its registered office at [address] (hereinafter called the company) of the one part and [agent] of [address] (hereinafter called the agent) of the other part.

WHEREBY IT IS AGREED as follows:

1. The company hereby appoints the agent as its sole selling agent in the areas described in the first schedule hereto (hereinafter called the territory) to Ch. 23] AGENCY?FORMS 10171018 CONVEYANCING, DRAFTING & DEEDS [Ch. 23 obtain orders from business houses therein for the products of the company set out in the second schedule hereto (hereinafter called the products) on the terms and subject to the conditions hereinafter set out.

2. The agency hereby created shall commence on the…………………….. day of………………….  and shall continue until determined as hereinafter provided.

3. It shall be the duty of the agent touse his best endeavours to maintain and increase the sale of the products and to represent properly the interests of the company within the territory by systematic canvassing either personally or with the assistance of his travellers by assisting in advertising schemes which the company may organise within the territory and in all other practicable ways. Provided always that  the agent shall not incur any expenditure on advertising except with the previous express authority of the company in writing.

4. All orders solicited by the agent shall be solicited only at the prices and on the conditions of sale set out in the company?s current price list applicable to the territory unless the previous express authority of the company in writing has been obtained.

5. All orders obtained by the agent shall be forwarded immediately to the company at its registered address or such other address as may subsequently be notified to the agent.

6. In consideration for the services to be performed by the agent for the company the company agrees to pay the agent an annual sum of Rs……….. payable in area in equal installments at intervals of……………………… month(s) and in a commission of………………………….. per cent on the invoiced price [less Income-Tax] of orders executed on behalf of customers introduced by the agent including repeat orders from those customers. No commission shall be payable in respect of bad debts or on replacements made free of cost by the company.

7. The commission payable in pursuance of clause 6 hereof shall be payable at the end of each [month] [quarter] in respect of invoices paid in full during that [month] [quarter] except that where payments by customers are made in installments the agent shall be credited with proportionate part of the commission on receipt by the company of each such installment and the installment shall be deemed to be payment in full for the purpose of determining the commission payable in the appropriate period.

8. The agent shall during the continuance of this  agreement in all matters act loyally and faithfully to the company and during the continuance of this agreement and for a period of……………….  years after the termination of this agreement for any cause whatsoever shall not engage or be interested either directly or indirectly whether as principal agent or employee in any business competing with that of the company within a radius of………………………..  miles form…………..

9.  The company may determine the agency immediately at any time hereinafter on the happening of any one or more of the following events:

(a) Should the agent die or in the opinion of the company from any cause become incapable of carrying out the terms of the agency and his duties hereinafter.

(b) Should the agent become bankrupt or make composition with his creditors or being a company go into liquidation either voluntary or compulsory or should the agent?s position at any time be such that in the opinion of the company it is inexpedient for the agent to continue to act as agent.

(c) Should the agent being a partnership firm without the written consent of the company previously given alter the constitution of the firm either by dissolution or by retirement of a partner or by taking any new partner or partners or otherwise change the constitution organization or management of the agent? business.

(d) Should statutory restrictions be levied upon the agent?s goods.

10.  The agency may subject as aforesaid be  terminated at any time by either party giving to the other three calendar months?  notice in writing.  Provided that the company may if it so chooses pay to the agent in lieu of notice a sum equivalent to one quarter of the amount of commission earned by him during the four completed quarters of the agent?s service hereunder immediately prior to the date of the termination of the agency or if the agent?s service is less than one year then a sum equivalent to the amount of commission earned by the agent during the last completed quarter of the agents service.

11. Any dispute difference or question which may arise at any time hereafter between the company and the agent touching the true construction of this agreement or the rights and liabilities of the parties hereto shall unless otherwise herein expressly provided, be referred to the decision of a single arbitrator to be agreed upon between the parties or in default of agreement to be appointed at the request of the either party in accordance with and subject to the provisions of the  Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof for the time being in force.

AS WITNESS etc.

FIRST SCHEDULE

[Agency territory]

SECOND SCHEDULE

[Products subject to agency]

[Signature of or on behalf of both parties]

Appointment of a selling agent for a district or town

AN AGREEMENT  made the………………………….  day of………..  BETWEEN [name of manufacturing company] having its registered office at [address]

(hereinafter called the company which expression shall where the context allows include any assigns of the company) of the one part and [agents] [description

Ch. 23] AGENCY?FORMS 10191020 CONVEYANCING, DRAFTING & DEEDS [Ch. 23 and address] (hereinafter called the agents which expression shall where the context allows include any permitted assigns of the agents) of the other part.

WHEREBY IT IS AGREED as follows :

1. The agents are hereby appointed the sole agents of the company for [district] (hereinafter called the agency district) for selling goods manufactured by the company of the kinds set out in the first schedule hereto (hereinafter called the goods) [for the terms of …..years] from the date hereof [and thereafter from year to year] on the terms and subject to the conditions hereinafter set out.

2. The agents hereby undertake and agree with the company that they will at all items during the continuance in force of this agreement observe and perform the terms and conditions set out in this agreement and in particular:

(a) will use their best endeavours to promote and extend the sales of the goods throughout the agency district to all potential purchasers thereof and work diligently to obtain orders therefor;

(b) will in all matters act loyally and faithfully to the company and obey its orders and instructions and in the absence of any such orders or instructions in relation to any particuar matter will act in such manner as they reasonably consider to be most beneficial to the company?s interests;

(c) will not engage or be interested  directly or indirectly as principal agent or employee in selling goods of any description or kind similar to those of the company or designed to perform the like functions as those of the company whether alone or in conjunction with any other goods without obtaining the previous consent in writing of the company;

(d) will not sell the goods on terms other than for cash against delivery unless the consent of the company in writing to give credit to a particular purchaser has been in each case first obtained the company reserving the right in the case of any such credit sales to stipulate for such increase in the price of the goods over and above full list price as it thinks fit;

(e) will not in selling the goods make any representations or give any warranties other than those contained in the company?s conditions of sale;

(f) will not sell to any person [or body corporate or unincorporated] goods which they know or have reason to believe are intended for resale outside the agency district;

(g) will not sell  the goods to any person [or body corporate or unincorporated] not carrying on trade as…………………  except at the full list price (as herein defined) or to a person [or body] carrying on that trade except at that price less a discount of………………………….  per cent and when selling the goods to any such person [or body] carrying on that trade will bring expressly to the purchaser?s notice the company?s conditions of sale and in particular the conditions relating to minimum retail prices. Full list price means the full retail sale price in respect of the goods as contained in the company?s official price list current at the time of purchase from the agents [Provided that in the event of this undertaking by the agents becoming illegal and unenforceable at law in respect of any classor classes of goods of the manufacturers subject to this agreement the undertaking shall be construed as if it applied only to those goods of the company as are outside such restrictions;

(h) will refer to the company all inquiries for  the company?s goods from addresses outside the agency district and from addresses in the agency?s district for resale outside that district and the agents shall not be entitled to any remuneration in respect of any sales resulting from any such inquiries;

(i) will at their own expense rent and occupy for the purposes of the agency suitable premises and will keep insured to their full value against all risks all goods entrusted to them by the company under this agreement and on request will produce to the company the latest receipt for rents rates and taxes of the premises and for the premiums on insurance policies showing that the respective payments have been made on or about their respective due dates preceding the request;

(j) will in all correspondence commercial documents and on the name plate or other signs at their place of business describe themselves as selling agents for the company and will not describe themselves as the company?s agents except in conjunction with the word ?selling

(k) will promptly bring to the notice of the company any information received by them which is likely to be of use or benefit to the company in marketing the goods and will in particular notify the company forthwith of any sale of the goods by any purchaser contrary to the company?s conditions of sale brought to his notice under paragraph (e) hereof;

(l) will keep full and proper books of account and records showing clearly all inquiries transactions and proceedings relating to the agency and in particular all transactions undertaken by or through the agents in relation to the goods such books and records being separate from those relating to  matters not relating to the agency and remaining at all times the property of the company;

(m) will maintain a separate bank account in respect of money received by them in respect of sale of the company?s goods and will remit to the company on the first business day in each [month] all sums received by them in respect of sales of those goods during the preceding [month] less such amount as they are permitted to deduct in accordance with clause 5 hereof.

(n) will allow the authorised officers of the company at all reasonable times to have access to the agents?  premises for the purpose of inspecting the said books and records and for the purpose of taking stock of the company?s goods on those premises;

(o) will from time to time upon the written request of the company supply to the company reports returns and other information relating to the agency;

(p) will not assign transfer charge or in any manner make over or purport to assign transfer charge or make over this agreement or their rights thereunder or any part thereof without obtaining the previous consent in writing of the company;

Ch. 23] AGENCY?FORMS 10211022 CONVEYANCING, DRAFTING & DEEDS [Ch. 23

(q) will not alter remove or tamper with the marks or numbers on the goods

deposited with them by the company;

(r) will not incur any liability on behalf of the company or in any way pledge

or purport to pledge the company?s credit;

(s) in the event of dispute arising between the agents and a purchaser  relation to the sale of the goods will forthwith inform the company of the dispute and will not without the company?s consent in writing take any proceedings in respect of or compromise the dispute or grant a release to any debtor of the company;

(t) will defray all expenses of an incidental to the agency.

3.  The company hereby agrees with the agents that it will during the continuance of this agreement:

(a) at its own expense supply the agents with such amount of samples patterns instruction books technical pamphlets catalogues and advertising material as it consider reasonably sufficient with a view to promoting sales of the products within the agency district.

(b) provide the agents with a stock of the goods free of all expense of delivery to the agents?  premises to the value of Rs…………… according to the company?s price list and replenish every [three] months such stock so as to keep it at that value Provided always that the agents shall have no right of action against the company for dealy occasioned by shortage of stock delays in transit accidents strikes or other unavoidable occurrence in replenishing such stock;

(c) where practicable refer all inquiries for the goods received from addresses within the agency district to the agents. Provided that if it is impracticable in the opinion of the company so to refer such inquiries the company shall have the right to supply the goods direct to addresses within the agency district and will pay to the agents in respect thereof such remuneration as is specified in clause

5(b) hereof.

4. The company reserves to itself the right notiwithstanding anything to the contrary herein contained:

(a) to continue to sell and supply the goods to the customers in the agency district listed in the second schedule hereto [in pursuance of contracts currently in force between the company and those customers] and no right to commission shall accrue to the agents in respect of any such sale;

(b) to vary the first schedule hereto defining the goods either by the withdrawal therefrom of a class or classes of goods named  therein in the event of the company ceasing to manufacture that class or those classes of goods or by the addition thereto after consultation with [or with the agreement of] the agents of a further class or of further classes of goods of the company;

(c) if in the opinion of the company the agents are not at any time producing adequate sales coverage throughout the whole of the agency district and without prejudice to any other of its rights under this agreement either to vary the extent of the agency district so as to exclude from this agreement such part or partsof that district as it thinks fit or to vary the first schedule hereto so as to exclude from the  agreement such one or more of the classes of goods therein set out as it thinks fit or to take both these courses of action save that neither such course of action shall be taken without prior consultation with the agents;

(d) in the event of its business or any part thereof (being a part concerned in the manufacture of the goods to which this agreement relates or any classof those goods) being transferred to any other company to assign its rights and obligations under this agreement to that other company after giving [one] month? notice of such assignment in writing to the agents.

5. (a) In consideration for their services to the company in pursuance of this agreement the agents shall be allowed to deduct and retain…………. per cent of the full list price (as defined in clause 2(e) hereof) of the goods sold by them on behalf of the company;

(b) where the company supplies the goods direct to addresses within the agency district in pursuance of clause 3(c) hereof the company shall pay to the agents an amount equal to that which the agents would have been allowed to deduct and retain under paragraph (a) of this clause if they had carried out the transaction less…. per cent.  A certificate signed by the company?s auditors of the amount of commission payable to the agents shall be conclusive evidence of the amount and the agents shall not be entitled to inspect the company?books.

6.  (1) Without prejudice to any other remedies the company may have against the agents the company shall hve the right at any time by giving notice in writing to the agents to terminate the agreement forthwith in any of the following events:

(a) If the agents commit a breach of any of the terms or conditions of this management.

(b) If the agents enter into liquidation whether compulsorily or voluntarily (otherwise than for the purpose of amalgamation or reconstruction) or com- pound with their creditors or take or suffer any similar action in consequence of debt [or in the case of an individual or a partnership: If the agents or any of the members of the firm become insolvent or enter into any arrangement with their creditors or take or suffer any similar action in consequence of debt.]

(c) If from any cause the agents are prevented from performing their duties hereunder for a period of……………………  or for a total period of…in any one period of twelve calendar months.

(d) If the agents are guilty of any conduct which in the opinion of the company is prejudicial to the company?s interests.

(e) If the agents purport to assign the burden or benefits or charge the benefits of this agreement without the consent in writing of the company.

(2) Either party may terminate this agreement at any time [after the  expiration of…………………  years from the date of this agreement] by giving  to the other party [one] month?s notice in writing sent by registered post or recorded delivery service to the registered office of the company or the agents as the case may be.

Ch. 23] AGENCY?FORMS 10231024 CONVEYANCING, DRAFTING & DEEDS [Ch. 23

(3) If at any time before [date of expiry of initial period of agreement] the company shall cease to carry on business [or shall cease to manufacture or deal in the goods] this  agreement shall forthwith terminate unless the rights and obligations of the company hereunder are assigned in accordance with clause4(d) hereof.

7. The agents hereby undertake that they will not?

(1) at any time whether during the continuance in force of this agreement or at any time after the termination thereof divulge any information in relation to the company?s affairs or business or method of carrying on business;

(2) during the period of…………………… years after the determination of this agreement for any reason whatsoever be associated whether as principal agents or employees in the manufacture sale or distribution in the agency district of any products of a  like or similar kind to or designed to perform functions like or similar to the products of the company of which the agents are at any time selling agents under this agreement without the prior consent in writing of the company.

8. (a) Upon the termination of this agreement from any cause or at any time previous to such  termination at the request of the company the agents shall promptly return to the company or otherwise dispose of as the company may instruct all samples, patterns, instruction books, technical pamphlets, catalogues, advertising material specifications and other materials, documents and papers whatsoever sent to the agents and relating to the business of the company  (other than correspondence between the company and the agents) which the agents may have in their possession or under their control and also deliver up to the company upon the termination of this agreement all separate books of account and records  relating to the agency kept in accordance with clause (2) of this agreement.

(b) Upon such termination the agents shall forthwith deliver up to the company or otherwise dispose of as the company directs the goods and any parts thereof which are in their possession or under their control and shall account to the company for the value at list prices less the deduction referred to in clause 5(a)hereof of any deficiency in the stock of such goods.

(c) No commission shall be payable after the termination of this agreement except in respect of orders and outstanding installment payments included in the agreed list.

(d) The cost of carriage insurance and charges incurred in any such return delivery up or other disposal shall be borne equally between the parties.

9. Any dispute difference or question which may arise at any time hereafter between the company and the agents touching the true construction of this agreement or the rights and liabilities of the parties hereto shall unless otherwise herein expressly provided be referred to the decision of a single arbitrator to be agreed upon between the parties or in default of agreement for fourteen days to be appointed at the request of either party by [appointor] in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof for the time being in force.

10. Save as herein before otherwise provided any notice required to be given hereunder shall be sufficiently given to the agents if forwarded by registered post recorded delivery service railex telex or telegraph to the last known postal address of the agent in the agency district and shall be sufficiently given to the company if similarly forwarded to its registered office. Every notice shall be deemed to have been received and given at the time when in the ordinary course of transmission it should have been delivered at the address to which it was sent.

11. The waiver by the company of any breach of any term of this agreement shall not prevent the subsequent enforcement of that  term and shall not be deemed a waiver of any subsequent breach.

12. This agreement embodies the entire understanding of the parties and there are no promises terms conditions or obligations oral or written express or implied other than those contained herein.

13. All previous agreements and arrangements if any made between the company and the agents are hereby cancelled but without prejudice to any rights which have already accrued thereunder to either party.

AS WITNESS etc.

FIRST SCHEDULE

[Specify particular goods or classes of goods]

SECOND SCHEDULE

[List of customers excluded in accordance with clause 4(a) hereof,

and duration of existing contracts]

[Signature by or on behalf of both parties]

3

Agreement for Sole Selling Agency by a manufacturing Company [With variations as to terms of appointment] THIS AGREEMENT made the………………..  day of………………..   BETWEEN [Principal company] [description] having its registered office at [address] (hereinafter called the company) and [agents] [description and address] (here- inafter called the agents).

WHEREBY IT IS AGREED as follows:

1. The company hereby appoints the agent to be its sole agent to promote and extend the sale of the products of the company and the agent agrees diligently to serve the company for those purposes to the best of his ability for the period during which the agreement continues in force on the terms and subject to the conditions hereinafter set out.

Ch. 23] AGENCY?FORMS 1025

G : CDD (Vol. 1) ? 651026 CONVEYANCING, DRAFTING & DEEDS [Ch. 23

2. The agent will forward to the principals all enquiries he may receive but shall not enter into any contract on behalf of the principals.

3. The agent shall offer the products for sale based on the specifications supplied by the company to the agent from time to time either generally or as applicable to a particular case and the company will hold itself responsible to any purchaser of the products through the agent for the fulfillment of any such specifications.

4. The agent agrees not to offer the products for sale at prices below the minimum prices as set out in the company?s price list for the time being in force for sales and will not offer a prospective purchaser more favourable terms than those currently prescribed by the company.

5. The principals shall pay to the agent such expenses as are reasonably incurred on behalf of the principals (or as may be otherwise agreed upon between the parties).

6. Upon receipt by the agent of any order for the products the agent will immediately transmit the order to the company and the company will execute the order by supplying the products direct to the purchaser.

7. Upon the execution of any order for the products the company shall forward to the agent a duplicate  copy of the invoice sent with the products to the purchaser and shall also inform the agent forthwith when payment is made by the purchaser to the company.

8. In respect of all orders secured by the agent the company shall pay a commission of……….. per cent to the agent calculated upon invoice price less Sales Tax stipulated by the purchaser.

9. All commissions payable to the agent are considered to have been earned when effective payment has reached the company and shall be payable quarterly commencing on?? .

10. The principal shall furnish- to the agent a periodical statement of account in respect of the commission earned by the agent during a quarter.

11. In the event of any dispute concerning the amount of any commissions due or payable by the company to the agents under this agreement a certificate as to the amount signed by the auditors for the time being of the company shall be conclusive and binding on both parties.

12. The company agrees not to supply the products to any person who is known or believed to intend resale the same except where the related order for the products shall have reached the company?

(a) from the agent, or

(b) direct from a person nominated by the agent, or

(c) direct from a person not previously nominated by the agents but who

shall upon reference to the agents prove to be acceptable to them.

13.   This agreement shall remain in force for…………  years from the date hereofand thereafter shall be determinable by either party on giving………….. months? notice in writing to the other party.

AS WITNESS etc.

[Signatures of or on behalf of both parties]

4

Appointment of sole selling agent

[Another Form]

THIS AGENCY AGREEMENT made the……………………….  day of………………… BETWEEN [principals] of [address, etc.] (hereinafter called the principals) of the one part and [agent] of [address, etc.] (hereinafter called the agent) of the other part.

WHEREBY IT IS AGREED as follows :

1.   The principals hreby appoint the agent as their sole agent in…………….. area for the sale of goods manufactured or dealt with by them for a period of ………………………….  years and thereafter until the appointment shall be deter- mined by six [twelve] calendar month?s notice in writing which may be given by either party after the said period expiring on the ……………………20…. in the first day of any month.

2. The agent  agrees to assist in every way the development of trade in the products witin the territory and except with the prior consent in writing of the company not to buy sell or deal in any way with products which the company considers to be in competition with its own products which are the subject of this agreement.

3.  The agent shall not sell the products to any person company or firm residing outside the territory nor shall knowingly sell any of the products to any person, company or firm residing within the  territory with a view to their exportation to any other country without the consent in writing of the company.

4.  (a)  The principals will provide the agent with all necessary samples patterns demonstration models catalogues price lists and sales literature generally to enable him to conduct the agency and the agent  shall not be liable for any loss or damage to any such samples or other of the aforesaid items whether or not caused or contributed to by the negligence or default of the agent.

(b) The principals shall pay all carriage freight customs and excise duties, insurance and all other payments reasonably necessary in respect of the  said samples and other items including the cost of delivery to the agent in the first place and their return to the principals or as the principals may order on the termiantion of the agency.

(c)  The agent shall have a lien on any such samples or other items in his possession in respect of any money outstanding from the principals by way of commission or expenses or any other sums due to him for the principals.

Ch. 23] AGENCY?FORMS 10271028 CONVEYANCING, DRAFTING & DEEDS [Ch. 23

5. The agent shall describe himself as agent for the company but shall at no time hold himself out as having the right to pledge the credit of the company except as provided by this agreement or unless they shall first have obtained the consent of the company in writing.

6. The agent shall at all times use his best endeavors to promote the sale of the products within the territory and generally to enhance the reputation of the products and of the company as manufacturers thereof and for these purposes at the cost and expense of the principals in all respects effect proper advertising and circulation of printed matter regarding the products and maintain an efficient organization undertake traveling and efficient personal representation and generally do all such other acts as may be conductive to the performance of the duties and obligations imposed on the agent by this agreement.

7. The agent shall report in writing to the company within one month of the end of every half-year upon the conduct and development of business in the products during the period and generally upon trade conditions in the territory together with their reasoned views on  prospects therein in the immediate future. The agent shall also make such interim special reports on any of these matters as the company may from time to time require.

8. The principals shall forward all goods which they agree to sell to customers in the said area direct to such customers together with invoices and other documents in respect of any such sale but they will at the time of sending the customers any such invoices or other documents send to the agent a duplicate or copy thereof and they will also send a copy or duplicate of every order when received to the agent.

9.  (a) The remuneration of the agent shall be by way of commission and shall be at the rate of………………..  percent upon the invoice price of all goods sold to the customers in the said area whether from orders received by the principals through the agent or from customers direct.

(b) After the termination of the agency the agent shall be entitled to commission at the same rate on all orders accepted from such customers up to the date of such termination.

(c)  The commission shall in all cases be at the said rate on the normal invoice price and no deductions may be made from the commssion by the principals in respect of any rebates or other concessions granted by them to the customers

(other than the usual trade discounts).

10. The principals shall on the ……………………… day of each calendar month send to the agent an account showing the particulars of all sales during the preceding calendar month to customers within the said area together with a statement of the commission due to the agent and a  remittance for the amount of the commission shall accompany the said statement. After termination of the agency the agent shall be entitled to commission on all orders as set out in clause 8 hereof and the principals shall continue to deliver commission accounts accompanied by remittances as above-mentioned until all such orders have been executed.11.  The agent shall not be entitled to commission on the amount of any invoice if such amount shall be wholly or partly lost by reason of the insolvency of the customers and in the event of any commission having already been paid in respect of such amount the same shall be refunded by the agent to the principals.

12. (a) In the event of the agency being terminated by the principals for any reason other than willful misconduct on the part of the agent, the agent shall be entitled to an amount to be paid to him by the principals by way of compensation for loss of goodwill suffered by the agent.

(b) Such compensation shall be an amount equal to the average annual sum earned by the agent in respect of commission under the agency during the five years immediately preceding the said termination.

13. Compensation as is contained in clause 12 above shall  also be payable where the principals sell lease hire mortgage or otherwise dispose of their business or where for any reason the principals cease to carry on business or become bankrupt or (in the case of a company) become insolvent or go into liquidation.

14. The company shall have the right at any time by giving notice in writing to the agent to terminate the agreement forthwith in any of the following events:

(a) If the agent commits a breach of any of the terms or conditions of this agreement.

(b) If the agent enters into liquidation whether compulsorily or voluntarily or compound with its creditors or takes or suffers any similar action in consequence of debt (or in the case of natural persons or a  partnership: If the  agent or any of the members of the firm become insolvent or enters into any arrangement with his/its creditors or takes or suffers any similar action in consequence of debt).

15. Any dispute, difference or question which may arise at any time hereafter between the company and the agent touching the true construction of this agreement or the rights and liabilities of the parties hereto shall unless otherwise herein expressly provided be referred to the decision of a single arbitrator to be agreed upon between the parties or in default of agreement to be appointed at the request of the either party in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modifications or reenactment thereof for the time being in force.AS WITNESS etc.

[Signature of parties]

5

Agreement for sole selling agency

[Short form]

AN AGREEMENT made the………………………  day of………….  BETWEEN [prin Ch. 23] AGENCY?FORMS 10291030 CONVEYANCING, DRAFTING & DEEDS [Ch. 23 cipal company] [description] having its registered office at [address] (hereinafter called the company) and [agents] [description and address] (hereinafter called the agents].

WHEREBY IT IS AGREED as follows :

1.  The company appoints the agent to be its sole agent to promote and extend the sale of the products of the company set out in the first schedule hereto (hereinafter called the products) in [country] (hereinafter called the territory) and the agent agrees diligently to serve the company for those purposes to the best of his ability for the period during which the agreement continues in force on the terms and subject to the conditions hereinafter set out.

2. The agent shall exercise all reasonable care and skill in the performance of his duties and shall act faithfully on behalf of the principals. The principals will do all things reasonably necessary to enable the agent to earn his due commission and will supply him with such information as he may reasonably require.

3. The agent will forward to the principals all inquiries he may receive and shall not (without express authority) enter into any contract on behalf of the principals nor bind or attempt to bind them in any way nor shall the agent (without express authority) receive any cheques or money on behalf of the principals.

4. The agent shall offer the products for sale as goods manufactured by the company and according to the specifications supplied by the company to the agent from time to time either generally or as applicable to a particular case and the company will hold itself responsible to any purchaser of the products through the agent for the fulfillment of any such specifications but save as aforesaid the agent shall not (except with the prior consent in writing of the company) when offering for sale the products give any warranty of fitness of the products for any particular purpose.

5. The agent agrees not to offer the products for sale at prices below the minimum prices as set out in the company?s price list for the time being in force for sales within the territory and will not offer a prospective purchaser more favorable terms than those currently prescribed by the company.

6.  The agent shall have the right at his absolute discretion to offer the products for sale at prices in excess of the minimum prices set out in the company?s price list and upon payment for deliveries at overprice shall be entitled to one-half of such overprice.

7. The principals shall pay to the agent such expenses as are reasonably incurred on behalf of the principals (or as may be otherwise agreed upon between the parties).  The principals shall also pay the cost of all advertising and publicity but no such expense shall be incurred by the agent without the consent of the principals.

8. Upon receipt by the agent of any order for the products the agent will immediately transmit the order to the company and if the order  is accepted the company will execute the order by supplying the products direct to the purchaser.The company reserves the right in its absolute discretion to refuse to accept any order but in the event of any such refusal shall notify the agent forthwith.

9. Upon the execution of any order for the products the company shall forward to the agent a duplicate copy of the invoice sent with the products to the purchaser and  shall also inform the agent forthwith when payment is made by the purchaser to the company.

10. In respect of all orders placed by the agent the company shall reserve a commission of [five] per cent for the agent calculated upon invoice price less Sales Tax stipulated by the purchaser.

11.  All commissions payable to the agent are considered to have been earned when effective payment has reached the company. All commission earned by the agent shall be paid quarterly commencing on [date] for the credit of the accounts of the agents.

12.   The agent may upon presentation of any account in respect of commission by the principals request an extract from the account and other books of the principals relating to such commission, and the principals shall deliver to the agent an extract from all such relevant books.

13.  The agent shall maintain proper books of account which shall be available for inspection by any person duly authorized by the company.

14. In the event of any dispute concerning the amount of any commissions due or payable by the company to the agents under this agreement a certificate as to the amount signed by the auditors for the time being of the company shall be conclusive and binding on both parties.

15. The company shall have the right to continue to sell and supply the products  to the companies named in the list in the second schedule hereto without accounting to the agent therefor in any way such sales being entirely outside the terms of this agreement.

16. Except as provided in the foregoing clause the company agrees not to supply the products to any person located within the territory or to any person not being so located who is known or believed to intend resale in the territory except where the related order for the products shall have reached the company?

(a) from the agent by mail or cable, or

(b) direct from a person nominated by the agent, or

(c) direct from a person not previously nominated by the agents but who shall upon reference to the agents prove to be acceptable to them.

17. This agreement shall remain in force for one year from the date hereof and thereafter shall be determinable by either party on giving [three] months? notice in writing to the other party.AS WITNESS etc.

Ch. 23] AGENCY?FORMS 10311032 CONVEYANCING, DRAFTING & DEEDS [Ch. 23 FIRST SCHEDULE [Products subject to agreement]

SECOND SCHEDULE [Companies with which the company will continue to trade direct][Signatures by or on behalf of both parties]

6

Appointment of a Commission Agent for specified areas for selling products of a Company AN AGREEMENT made the…………….. day of…………….  BETWEEN (manufacturing company) (description) having its registered office at (address) (herein- after called the company) of the one part and (agent) of (address) (hereinafter called the agent) of the other part.

WHEREBY IT IS AGREED as follows :

1. The company hereby appoints the agent as its sole selling agent in the areas described in the first schedule hereto (hereinafter called the territory) to obtain orders from business houses therein for the products of the company set out in the second schedule hereto (hereinafter called the products) on the terms and subject to the conditions hereinafter set out.

2.  The agency hereby created shall commence on the………………  day of…….. and shall continue until determined as hereinafter provided.

3. It shall be the duty of the agent to use his best endeavors to maintain and increase the sale of the products and to represent properly the interests of the company within the territory by systematic canvassing and assisting in advertising schemes which the company may organise within the territory and in all other practicable ways.

4. All orders shall be solicited by the agent only at the prices and on the conditions of sale set out in the company?s current price list applicable to the territory (unless the previous express authority of the company in writing has been obtained) and the same shall be forwarded immediately to the company at its registered address or such other address as may subsequently be notified to the agent.

5. In consideration for the services to be performed by the agent for the company the company agrees to pay the agent a sun of Rs. …?.. per month and a commission of……………..  per cent on the invoiced price of orders secured by the agent including repeat orders from those customers.

6. The commission payable in pursuance of clause 6 hereof shall be payable at the end of each (month) in respect of invoices paid in full during that month.

7.  The agent shall during the continuance of this agreement in all matters actually and faithfully to the company and during the continuance of this agreement and for a period of……………  years after the termination of this agreement for any cause whatsoever shall not engage or be interested either directly or indirectly whether as principal agent or employee in any business competing with that of the company within a radius of?? miles from.

8. The agency may be terminated at any time by either party giving to the other three calendar months?  notice in writing. Provided that the company may if it so chooses pay to the agent in lieu of notice a sum equivalent to one quarter of the amount of commission earned by him during the four completed quarters of the agent?s service hereunder immediately prior to the date of the termination of the agency or if the agent?s service is less than one year then a sum equivalent to the amount of commission earned by the agent during the last completed quarter of the agent?s service.

9. Any dispute difference or question which may arise at any time hereafter between the company and the agent touching the true construction of this agreement or the rights and liabilities of the parties hereto shall unless otherwise herein expressly provided, be referred to the decision of a single arbitrator to be agreed upon between the parties or in default of agreement to be appointed at the request of the either party in accordance with and subject to the provisions of the Arbitration & Conciliation Act, 1996 or any statutory modification or reenactment thereof for the time being in force.AS WITNESS etc.

FIRST SCHEDULE

(Agency territory)

SECOND SCHEDULE

(Products subject to agency)

[Signatures of or on behalf of both parties]

Assignment of rights and obligations by principal under an agency agreement. THIS ASSIGNMENT is made on the…………………… day of………….. BETWEEN.[assignor company] [a company incorporated under the Indian Companies Act having its registered office at [address] (hereinafter called the company) of the one part and [assignee company] a company also incorporated under the said Act having its registered office at [address] (hereinafter called the assignees) of the other part. WHEREAS:

(1) This assignment is supplemental to an agreement (hereinafter called the agency agreement) dated the……………………  day of…………….  and made be- Ch. 23] AGENCY?FORMS 10331034 CONVEYANCING, DRAFTING & DEEDS [Ch. 23between the company of the one part and [agents] of [address, etc.] (hereinafter called the agents) of the other part whereby subject to the provisions thereof the company appointed the agents for a  period of years from [date] the sole selling agents within [territory] of the products of the company as described in the agency agreement.

(2) On or about [date] the company agreed with the assignees to assign all the rights and duties of the company under the agency agreement to the assignees with effect from  [date].

(3) Notice in writing of the proposed assignment was given to the agents on…………….. NOW THIS ASSIGNMENT made in pursuance of the said agreement and in consideration of the premises WITNESSETH AND IT IS HEREBY AGREED AND DECLARED as follows :

1. The company hereby assigns to the assignees all the rights to which the company is entitled under the agency agreement together with the full benefit of the agency agreement as from [date] subject to the obligations on the part of the company under the agency agreement but otherwise absolutely.

2. The company hereby empowers the assignees at the assignees?  expense in the name of the company or otherwise to enforce all or any of the rights hereby assigned as fully in all respects as the company could enforce them and hereby irrevocably appoints the assignees to be the attorney of the company in the name and on behalf of the company for this purpose.

3.  The assignees hereby covenant with the company to observe and perform all the obligations on the part of the company under the agency agreement and to keep the company indemnified against all claims made against it by the agents under the agency agreement and against all cost charges and expenses incurred by the company in connection with any such claims or in connection with the use by the assignees of the name of the company pursuant to the provisions hereof.

IN WITNESS etc.

[Signatures and seals of both parties]

Appointment of sole distributor for a District territory.AN AGREEMENT made the……………………  day of………………………….. BETWEEN [manufacturing company] [description] having its registered office at [address] (hereinafter called the company) and [distributors] [description and address] (hereinafter called the distributors.

WHEREBY IT IS AGREED as follows:?

1. The company hereby appoints the distributors to be the sole distributorsand the distributors agree to act as such to establish promote and extend the sale of products of the company supplied under the brand name of……………….. (hereinafter called the products) in [territory] (hereinafter called the territory).

2. This agreement shall commence on the…………………  day of……………….. and shall continue for a period of……………………….. calendar years and thereafter from year to year until terminated by [six] months?  notice in writing given by either party hereto to the other and subject to the power of summary determination by the company hereinafter contained.

3. Except as provided hereinafter the distributors agree not to engage in selling or otherwise being concerned in the sale of products competing with or in the same class of merchandise as the products of the company.

4. Except as provided in clauses 16 and 17 hereof the company agrees not to sell the products to any ohter person, company or firm in the territory or to any person company or firm outside the territory whom it knows or has reason to believe intends to resell the products within the territory. The company further agrees to refer all inquiries for the products reaching it from the territory to the distributors.

5.  The company shall quote all prices to the distributors at its best f.o.r. terms.

6. The distributors agrees to accept the products for insured transit to the territory at their costs.

7.  The distributors agree to prepare a schedule of cost insurance freight paid prices resale prices to retail traders and fixed retail list prices for sale to the  public by retail traders in the territory and to submit the schedule to the company for approval within………… weeks of the commencement of this agreement and agree not to sell the products at prices other than those set out in that  schedule as so approved (or as may be altered by agreement between the par ties from time to time) without  the written consent of the company.

8.The distributors agree to pay for all products of the company ordered and accepted by them promptly [or within………….. days of delivery].

9. All products ordered by the distributors shall be dispatched by road transport or by goods train carriage paid [or carriage forward] [or by such other means as may be agreed].

10. The company shall allow the distributors discount or rebate of…………….. per cent on the quoted price as mentioned in clause 6 hereof and shall allow a further discount or rebate of……………….  per cent on the net value of all products which the distributors take delivery of and pay for in any period of twelve calendar months in excess of the amount of Rs……….

11.  The distributors shall at all times during the continuance of this agreement offer for sale and sell the products as goods manufactured by the company and according to the specifications supplied by the company to the distributors from time to time either generally or in any particular case and shall not make any representation or give any warranty in respect of the products other than those contained in the company?s conditions of sale as current at that time of the offering for sale or the sale.Ch. 23] AGENCY?FORMS 10351036 CONVEYANCING, DRAFTING & DEEDS [Ch. 23

12.  The distributors shall at all times during the continuance of this agreement maintain a stock of all the products in good order for display and demonstration purposes and shall also maintain a stock of spare parts in accordance with the company?s spare parts lists appropriate to the products.

13. The distributors shall have no right of action against the company in respect of any loss occurring to them by reason of any delay in delivery occasioned by shortage of stock or delays in transit or delays caused by accidents or strikes.

14. The distributors shall not assign or purport to assign the benefit of this agreement without the prior consent in writing of the company.

15. Where it shall be proved to the  reasonable satisfaction of the company that the products are not competitive with other similar products of other manufacturers in the territory then the distributors shall be at liberty to engage upon the sale of similar products obtained from other suppliers.

16. The company reserves the right to enter upon manufacture of any products whatsoever under brand names other than [brand name of products subject to the agreement] without consulting the distributors or remunerating the distributors in any way for any of such products as may be sold in the territory.

17. The company reserves the right to grant licences for the manufacture of the products within the territory and itself to establish factories for the manufacture of the products within the  territory  [without consulting the distributors or being liable in any way to remunerate the distributors in  respect of the sales of the products thereafter manufactured within the territory.]

18. The distributors shall submit their schemes for publicity for the approval of the company at six monthly intervals and six months ahead of the date from which it is proposed that they should commence and the company agrees to reimburse the distributors to the extent of one half of their publicity disbursements within six months after the completion of the carrying out of such approved publicity schemes PROVIDED ALWAYS  that the liability of the company under this clause shall in no case exceed two and one-half per cent of the value of the products ordered by the distributors in the six months?  period during which a particular scheme is in operation.

19. The distributors shall report in writing to the company within one month of the completion of each half-year upon the conduct and development of business in the products during the period and generally upon trade conditions in the territory.

20. Nothing in t his agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute the distributors as agents of the company for any purpose whatever and the distributors shall have no authority or power to bind the company or to contract in the name of and create a liability against the company in any way or for any purpose.

21. The company shall have the right at any time by giving notice in writing to the distributors to terminate the agreement forthwith  in any of the following events:

(a) If the distributors commit a breach of any of terms or conditions of this agreement.

(b) If the