TERMS & CONDITIONS OF SALES AGENT REPRESENTATION
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TERMS & CONDITIONS OF SALES AGENT REPRESENTATION
entered into between:
SaYes (Pty) Ltd (Reg No: 2019/437716/07), a company incorporated under the laws of the Republic of South Africa, having its registered office at Bloem Straat 50, Bloemhof, 2660 (hereinafter called “the Company”, which expression shall, where the context allows, include any assigns of the company)
The Registered Sales Agent (hereinafter called “the Agent”), which expression shall, where the context allows, include any permitted assigns of the agent.
Clause headings are used in this agreement for convenience only and shall not affect the interpretation hereof.
In this agreement, unless the context otherwise requires, reference to the singular includes the plural and vice versa and the expressions set out below bear the meanings stated opposite them (and cognate expressions their corresponding meanings):
“the agent” means the person registered as an agent in terms of the scheme;
“commission” means the commission due to the agent in terms of this agreement as set out in Appendix C;
“the Agency District” means the Republic of South Africa;
“the Customer” means those persons who purchase the Goods within the Agency District from time to time and who shall have been procured through the efforts of the agent,
“day” means any day except a Saturday, Sunday or public holiday;
“notice” means the written application made by the agent, in such format as prescribed by the Company, to be appointed as an agent and accepted in writing by the Company
“register/registration” means the electronic listing of the any person that have applied to the Company to be accepted as an agent on the website;
“the signature date” means the date upon which the agent has been registered on the website portal as an agent by the Company;
“supplier” means the manufacturer and/or distributor of the Goods from which the Company acquires the Goods;
“Company” means SaYes (Pty) Ltd;
“the Goods” means all products marketed by SaYes (Pty) Ltd as set out on the website;
“sale/s” means each and every transaction in terms of which Goods were sold by the Company to a Customer solicited by the Agent registered on the website as linked to the agent code via the website;
“specified price” means the retail selling price of the products determined by the Company from time to time and published on the website.
“website” means www.sayes.co.za.
IT IS HEREBY AGREED as follows:
Appointment and duration
The Agent appointed by registration and acceptance by the company, as a non-exclusive agent of the Company in the Agency District for selling Goods distributed by the Company or an indefinite period unless terminated by notice in terms of clause 6.2 hereof on the terms and subject to the conditions hereinafter set out. Under no circumstances will this agreement constitute an employer-employee relationship.
The Agent hereby undertakes that it will at all times during the continuance in force of this agreement observe and perform the terms and conditions set out in this agreement and in particular:
To promote sales of Goods and the procurement of Customers on the terms and conditions set by the Company.
The Agent shall use its best endeavours to promote and extend the sale of the Goods throughout the Agency District to all potential Customers thereof and work diligently to obtain orders and Customers, in respect thereof on the terms and conditions set by the Company.
To act loyal
The Agent shall in all matters act loyal and faithfully to the Company and obey the Company’s orders and instructions and, in the absence of any such order or instructions in relation to any particular matter, will act in such manner as the Agent reasonably considers to be most beneficial to the Company’s interests.
Not to deal in competing goods
The Agent shall not engage or be interested either directly or indirectly as principal, agent or employee in selling goods of any description or kind similar to the Goods of the Company or designed to perform the same function as the Goods of the Company or any similar function, whether alone or in conjunction with any other goods, without obtaining the previous consent in writing of the Company.
Not to give unauthorised warranties
The Agent shall not in selling the Goods make any representations or give any warranties other than those contained in the Company’s and/or suppliers’ conditions of sale or Company’s and/or suppliers terms and conditions.
To inform company of disputes with Customers
In the event of any dispute arising between the Agent and a purchaser in relation to the sale or usage of the Goods, the Agent shall forthwith inform the Company of the dispute and shall not without the Company’s consent in writing take any proceedings in respect thereof, or compromise the dispute or grant a release to any debtor of the Company.
To give company information as to marketing matters
The Agent shall promptly bring to the notice of the Company any information received by the Agent which is likely to be of use or benefit to the Company in marketing the Goods.
Invoicing, Payments, credit card details and cash
The Agent shall under no circumstances receive any money on behalf of the Company. The Agent will provide the Company with an Invoice for commission earned. All Customer invoicing will be done by the Company directly to the Customers. Any commissions will be paid over to the Agent on receipt of payment of the Customer invoices on a monthly basis. The Agent shall under no circumstances obtain (or endeavour to obtain) access to the Customers credit cards or the details on the card.
Not to assign agency
The Agent shall not assign, transfer, charge or in any manner make over, or purport to assign, transfer, charge or make over, this agreement or its rights there under or any part thereof without obtaining the previous consent in writing of the Company.
Not to tamper with company’s marks
The Agent shall not alter, remove or tamper with the marks on any marketing material provided or introduced by the Company to the Agent.
Not to incur liabilities binding on the company
The Agent shall not incur any liability on behalf of the Company or in any way pledge or purport to pledge to the Company’s credit.
To indicate the nature of agency in dealings
The Agent shall in all correspondence, commercial documents and on the name plate or other signs at the place of business describe itself as a selling Agent for the Company and shall not describe itself as the Company’s agent except in conjunction with the word “selling”.
To defray expenses
The Agent shall defray all his own expenses of and incidental to the agency.
Intellectual Property Rights
All intellectual property will vest in the Company. Whether it be know-how, methodology or any other form. This will also include intellectual property gain in the period of this agreement. By signing this agreement both parties acknowledge this fact. This fact is not influenced by the termination of this agreement.
Not to interfere with other Agent’s Customers
The Agent shall not interfere with the Customers of other Agents and it is agreed that the Agent that has registered a Customer shall be entitled to all commissions arising from that Customer irrespective of who the cause of the sale might be.
Duties of company
The Company hereby agrees that it will undertake the following during the continuance of the agreement.
To supply Goods
The Company shall provide all Goods to be sold by the agent via the website to the Customers.
Reserved rights of company
The Company reserves to itself the following rights notwithstanding anything to the contrary herein contained:
To continue sales to particular customers
The Company reserves the right to continue to sell and supply the Goods to the customers in the Agency District in pursuance of the relationship currently in force between the Company and those customers as well as future transactions that can be obtained and supplied directly by the Company, and no right to commission shall accrue to the Agent in respect of any such sale. The Company will delegate certain delivery of services or products to the agent at its sole discretion, and the agent will be remunerated as set out in clause 5.
To withdraw goods ceasing to be distributed or to add new classes of goods
The Company reserves the right to vary the Goods either by the withdrawal therefrom of a class or classes of Goods named therein in the event of the Company ceasing to supply that class or those classes of Goods, or by the addition thereto.
To assign rights and obligations
In the event of the Company’s business or any part thereof being transferred to any other company, the Company reserves the right to assign its rights and obligations under this agreement to that other company after giving one month’s notice of such assignment in writing to the Agent.
To Continue Sales after termination of the agreement
The Company reserves the right to continue to sell and supply the Goods to the customers in the Agency District in pursuance of contracts in force between the Company and those customers as well as future contracts that can be supplied by the Company, and no right to commission shall accrue to the Agent in respect of any such sale after the termination of the agreement.
Remuneration of agent
In consideration for the Agent’s services to the Company in pursuance of this agreement the Agent shall receive specified percentages of the full list price excluding VAT on each and every Sale as follows:
8% of full list price excluding VAT in respect of the first 12-month period after the Signature date.
6% of full list price excluding VAT in respect of the second 12-month period after the Signature date.
4% of full list price excluding VAT in respect of the third 12-month period after the Signature date.
After a period of 36 months from the Signature date all commissions payable in respect of any specific Customer will terminate.
The said remuneration shall be excluding delivery costs.
The aforementioned remuneration schedule shall pertain respectively to each and every Sale: consequently, irrespective of the number and date of Sales to a specific Customer, the Agent shall be remunerated in terms of the remuneration schedule and after a period of 3 years the Agent’s remuneration in respect of Sales to a specific Customer shall terminate.
Termination of agreement
Termination by company
Without prejudice to any other remedies that the Company may have against the Agent, the Company shall have the right at any time by giving notice in writing to the Agent to terminate the agreement forthwith without giving any reasons.
Termination by notice of either party
Either party may terminate this agreement at any time by giving to the other party one month’s notice in writing sent per e-mail as the case may be.
Termination on principal ceasing to carry on business
If at any time the Company shall cease to carry on business or shall cease to deal in the Goods, this agreement shall forthwith terminate unless the rights and obligations of the Company hereunder are assigned in accordance with clause 4.4 hereof.
Effect of termination
The termination of this agreement shall not terminate the rights and obligations of the parties that have accrued prior to such termination.
Any dispute between the parties in regard to any matter arising out of this agreement or its interpretation or their respective rights and obligations under this agreement or its cancellation or any matter arising out of its cancellation, shall be submitted to and decided by arbitration, should either of the parties so demand by written notice to the other.
The arbitrator shall be a practicing attorney of not less than 20 years’ standing who shall be agreed upon between the parties, or failing agreement, appointed by the then President of the Association of Law Societies of South Africa or its successor in title.
The arbitration shall be held in Kroonstad in accordance with such procedures as may be determined by the arbitrator and shall be held in an informal and summary manner on the basis that, it shall not be necessary to observe or carry out the usual formalities or procedures including the delivery of pleadings, the making of discovery of the observance of the strict rules of evidence. The parties shall, however, be entitled to legal representation.
It is the parties’ intention that as far as is practicable in the circumstances the arbitration shall be held and completed as soon as possible and in any event within 30 days after it is demanded and that the arbitrator should determine the procedures for the arbitration accordingly.
The decision of the arbitrator shall be final and binding on the parties to the dispute and may be made an order of court at the instance of any of the parties to the dispute.
The parties agree to keep the arbitration, including the subject matter of the arbitration and the evidence heard during the arbitration, confidential and not to disclose it to anyone except for purpose of a court order to be made.
The provisions of this clause:
constitute an irrevocable consent by the parties to any proceedings in terms hereof and no party shall be entitled to withdraw therefrom or claim at any such proceedings that it is bound by such provisions;
are severable from the rest of this agreement and shall remain in effect despite the termination of or invalidity for any reason of this agreement.
This clause shall not preclude any party from obtaining interim relief on an urgent basis form a court of competent jurisdiction pending the decision of the arbitrator.
There shall be no right of appeal against the decision of the arbitrator, save that any decision may be taken on the view.
Notices and Domicilium
The parties choose as their domicilia citandi et executandi for all purposes under this agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the following addresses:
Agent: As per the Notice
Company: SaYes (Pty) Ltd
Postal address – P.O.Box 5, Bloemhof, 2660
Street address – 53 Markstree, Bloemhof, 2660
Email: firstname.lastname@example.org marked for the attention of: Dr Cizelle Naude
Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing.
Either party may be notice to the other party change its domicilium citandi et executandi to another physical address in the Republic of South Africa provided that the change shall become effective on the 7th (seventh) day after the latest receipt of the notice.
Any notice to a party contained:
in a correctly addressed envelope and:
sent by prepaid registered post to it at its domicilium citandi et executandi, or;
delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi;
in the event of an email sent to the email address set out in its domicilium citandi et executandi during ordinary business hours; shall be deemed to have been received, in the case of clause postal communication on the seventh business day after posting (unless the contrary is proved) and, in the other cases on the day of delivery by hand or dispatch by email, provided such day is a business day or otherwise on the next following business day.
Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium.
“Business day” means any day except a Saturday, Sunday or public holiday.
Applicable Law and Jurisdiction
The provisions of this agreement shall be interpreted, and its validity determined in accordance with the laws of the Republic of South Africa.
This document constitutes the entire record of the agreement between the parties in regard to the subject matter hereof.
None of the parties shall be bound by any representation, warranty, promise or the like not recorded herein.
No addition to, variation, or agreed cancellation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties.
Any indulgence which any of the parties may grant to any of the others in terms of or pursuant to this agreement shall not constitute a waiver of any of the rights of the party which granted such indulgence or a novation hereof.
No amendment or consensual cancellation of this agreement or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this agreement shall be binding unless recorded in a written document signed by the parties. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly constituted as relating strictly to the matter in respect whereof it was made or given.
No extension of time or waiver or relaxation of any of the provisions or terms of this agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement, shall operate as an estoppel against any party in respect of its rights under this agreement, nor shall it operate so as to preclude such party thereafter from exercising it’s rights strictly in accordance with this agreement.
No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
It is hereby agreed between the parties that this agency agreement constitutes the entire agreement and contract between them and that no representations or statements made by or on behalf of any of the parties hereto, including the negotiations preceding this agency agreement shall in any way affect the respective rights and obligations of the parties under this agency agreement, save and except insofar as the same is repeated and recorded in this agency agreement;
If any provision of this agreement is found or held to be invalid or unenforceable, the validity of all the other provisions hereof will not be affected thereby and the parties agree to meet and review the matter and if any valid or enforceable means are reasonably available to achieve the same object as the invalid or unenforceable provision, to adopt such means by way of variation of this agreement;
This agreement will inure for the benefit of and be binding upon the successors and permitted assigns of the parties, or any of them;
may be executed in separate counterparts, none of which need contain the signatures of all of the parties, each of which shall be deemed to be an original and all of which taken together constitute one agreement;
shall be valid and binding upon the parties thereto, notwithstanding that one or more of the parties may sign a facsimile copy thereof and whether or not such facsimile copy contains the signature of any other party.
This agreement supersedes all prior representations, communications, negotiations and understandings between the Parties concerning the subject matter of this agreement.
No Party may rely on any representation which allegedly induced that Party to enter into this agreement, unless the representation is recorded in this agreement.
This agreement shall be binding on all the successors in title and assignees of the Parties.
Each party hereto shall be responsible for its own cost incidental to the preparation, negotiation and finalisation of this agreement.
The Agent, irrevocably and in rem suam indemnifies and holds the Company harmless against any injury, loss and damages that the Company may suffer as a consequence of the Agent failing to adhere to the obligations imposed upon him in terms of this Agreement or arising from his fault, omission or commission.