Sales Consultant Agreement

Sales Consultant Agreement

This Sales Consultant Agreement (“Agreement”) is entered into and made effective as of the ____ day of _________, 201_ (“Effective Date”) by and between [NAME OF BUSINESS ENGAGING THE SALES CONSULTANT] (“Company”) a [STATE OF ORGANIZATION] &nbsp corporation, having a principal place of business at [ADDRESS] and [NAME OF SALES CONSULTANT] (“Sales Consultant”) residing at [ADDRESS].  Each of Company and Sales Consultant may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.”

            WHEREAS, Company wishes to have Sales Consultant provide assistance to Company in soliciting, marketing, and selling certain of Company’s products and/or services (“Services”) to prospects and customers (“Clients”) in the _____________________________(“Territory”); and

            WHEREAS, Sales Consultant wishes to market the Services to Clients and represents possessing the necessary marketing capacity and abilities to do so in a manner that reflects favorably on the image of Company and the Services.

            NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth in this Agreement, and for other good, valuable, and legal consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:

1.         Appointment.  Company hereby appoints Sales Consultant as its representative to devote best efforts in the promotion and marketing of the Services to Clients in the Territory in accordance with the terms and conditions of this Agreement.  It is understood and agreed that Sales Consultant will not enter into similar agreements or arrangements with a competitor of Company after the Effective Date and during the term of this Agreement without the express written approval of Company.

2.         Independent Contractor.  The relationship of the Parties under this Agreement is, and will at all times remain, one of independent contractors and not that of employer and employee, franchisor and franchisee or joint venturers.  This Agreement does not establish Sales Consultant as Company’s representative or agent for any purposes other than to solicit Services.  Sales Consultant is not authorized to make contracts in Company’s name or to transact any business in the name of Company, or to assume or create any obligation or responsibility binding on Company in any matter whatsoever.

3.         Sales Consultant Duties. 

a.  [Sales Consultant agrees to comply with all applicable requirements of federal, state and local laws, ordinances, administrative rules and regulations relating to Sales Consultant’s performance of the obligations under this Agreement.]

b. [Sales Consultant will not use any employees of Company or materials referencing Company or Services that have not been approved by Company.  Sales Consultant will make no representations or warranties relating to the Services.  All prices quoted for the Services will be prices as provided by Company.]

c.  [Sales Consultant will be identified as an authorized sales agent of Company only with respect to the Services and will otherwise be identified as an independent business.  Neither Party will make any express or implied agreements, guarantees, or representations or incur any debt in the name of or on behalf of the other Party.]

d. [Sales Consultant will, at all times, maintain a professional appearance and will not perform any duties set forth in this Agreement, while intoxicated in any manner or under the influence of any illegal drug.]

e. [Sales Consultant will not use deceptive, illegal, misleading or unethical practices and will not make any false or misleading representations with regard to the Services or Company.]

f. [All costs and expenses incurred by Sales Consultant in performing the Services (including by way of example only, phone and travel) and other marketing and sales expenses will be borne by Sales Consultant and will not be reimbursed by Company.]

g. [Sales Consultant represents that no law or agreement with other parties that would prohibit Sales Consultant from entering into this Agreement with Company.]

4.         Company Obligations.     

a.  Company will compensate Sales Consultant on a commission basis as described in Exhibit A attached hereto and incorporated herein by reference.  This compensation may be amended by mutual agreement of the Parties.

b. Company will review all orders for the Services submitted by Sales Consultant.  Company reserves the right to reject, for any or no reason, any Client order solicited by Sales Consultant.

c. Company may terminate a Client’s Services at any time in its sole discretion.  Company agrees to provide Sales Consultant reasonable advance notice of such termination.

d. Company will comply with all applicable requirements of federal, state, and local laws, ordinances, administrative rules, and regulations relating to Company’s performance of its obligations under this Agreement.

e. Company reserves the right to solicit orders directly from and sell directly to any Clients or other buyers within the Territory.

f.  Company may, but is not obligated to, provide and maintain personnel to adequately provide after-sales support with respect to the Services.

5.         Confidentiality.

a.  Under this Agreement, “Confidential Information” refers to any and all information of Company that has been disclosed to Sales Consultant, which is designated in writing as confidential, proprietary, or secret or under the context of its disclosure ought to reasonably be considered as confidential.  Confidential Information includes, but is not limited to, all information concerning Company’s existing business, business systems, business plans and information systems, trade secrets, pricing information, identities of third party contractors, software, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and documentation, network designs, know-how and any related intellectual and intangible property rights throughout the world, and also including any derivatives, improvements, enhancements or extensions to software conceived, reduced to practice, or developed before, during or after the term of this Agreement by or for Company.     In addition, Confidential Information includes data that relates to or is associated with any Client of Company including but not limited to identifying information that is either provided to Sales Consultant by or at the direction of Company or received, stored, or processed by Sales Consultant as part of providing the Services (“Client Data”).]

b. Sales Consultant agrees to use all reasonable efforts to protect unauthorized use or distribution of Confidential Information and Sales Consultant agrees to use at least the same degree of care to prevent disclosing to third parties the Confidential Information as Company uses to protect its own Confidential Information. Sales Consultant further agrees not to disclose or permit any third party access to the Confidential Information, except such disclosure or access will be permitted in order to perform the Services. 

c.  Company owns all right, title, and interest in and to all of the Confidential Information.  Except as explicitly stated in this Agreement, Sales Consultant is granted no license or conveyance of the Confidential Information or any intellectual property or intangible rights therein.  Title to the Confidential Information shall remain solely with Company.

d. Sales Consultant acknowledges and agrees that he will not compile, use, sell or otherwise distribute any lists containing Client Data other than as expressly permitted in this Agreement.  The foregoing restrictions on disclosure of Client Data will survive and continue in full force and effect indefinitely after the expiration or termination of this Agreement.  Sales Consultant agrees and represents to Company that administrative, physical and technical safeguards will be used to preserve the integrity, confidentiality, and availability of all Client Data that is collected, received, transmitted, stored, used, and disclosed by Sales Consultant.    

e. Sales Consultant will immediately notify Company in writing of all circumstances surrounding any possession, use, or knowledge of Client Data by any person or entity other than those authorized by this Agreement.  If Company should discover a security breach which impacts any Client Data or results in unauthorized third party disclosure or access to Client Data, Sales Consultant agrees to immediately notify Company of such breach and provide reasonable assistance to and cooperate with Company in investigating the breach and Sales Consultant agrees to provide the following information in writing to Company: (a) Identification of each Client who is the subject of the information that has been, or is reasonably believed by Sales Consultant to have been accessed, acquired, or disclosed; (b) a brief description of the events; (c) date of the potential breach; (d) date of discovery; (e) type of information involved; and (f) any preliminary steps taken to mitigate the damage.

f.  Upon termination of this Agreement, Sales Consultant will cease all use of the Confidential Information and will immediately destroy all such Confidential Information in his or her possession.  Sales Consultant will certify destruction upon written request from Company.  Confidential information shall be destroyed by shredding, erasing, or otherwise modifying the data to make it unreadable or undecipherable through any means. 

f.  Sales Consultant agrees that any unauthorized use or disclosure of the Confidential Information in a manner inconsistent with the terms of this Agreement may cause Company irreparable damage for which remedies other than injunctive relief may be inadequate.  Accordingly, if Sales Consultant discloses or uses (or threatens to disclose or use) any Confidential Information in breach of the protections hereunder, then Company will have the right, in addition to any other remedies, to seek injunctive relief to enjoin such acts.

6.         Term.  This Agreement will commence on the Effective Date and will continue in full force and effect until terminated by either Party. 

7.  Termination.  Either Party may terminate this Agreement for convenience upon [NUMBER] days prior written notice to the other Party.  Either Party may terminate this Agreement effective immediately by written notice if it is discovered that the other Party has intentionally or in a willful, wanton or reckless manner made any material, false representation, report or claim relative to this Agreement; or engaged in any deceptive trade practices.  Upon termination of this Agreement, Sales Consultant will immediately: (a) discontinue any and all uses of Client Data; (b) destroy any and all Client Data and other Confidential Information; and (c) cease representation, in any manner, as a Sales Consultant of Company.  Upon termination of this Agreement, Sales Consultant will receive no further compensation from Company and Sales Consultant waives all rights to such compensation. 

8.          Non-Compete.  Beginning on the Effective Date and during the remainder of the term of this Agreement and for [NUMBER] months thereafter, Sales Consultant will not represent, promote or otherwise market or try to sell within the Territory any products or services that, in Company’s judgment, compete with the Services.

9.  Non-Solicitation.  In recognition of the support to be provided to Sales Consultant, including access to Confidential Information, for the term of this Agreement and thereafter for a period of ___ years following termination or expiration of this Agreement, Sales Consultant shall not contact or use Company’s Clients in any way except for the benefit of Company. 

10.       Indemnification. Sales Consultant will, at all times, defend, indemnify and hold harmless Company, its officers, directors, successors and assigns (collectively, “Company Indemnified Parties”) from and against, and pay and reimburse the Company Indemnified Parties  for, any and all liabilities, obligations, losses, damages, out-of-pocket costs or expenses arising out of or relating to claims of third parties with respect to (a) any alleged act or omission of Sales Consultant in the performance of the activities contemplated hereby or any failure by Sales Consultant to abide by any of the obligations set forth herein; (b) Sales Consultant’s failure to comply with all applicable laws; and (c) Sales Consultant’s gross negligence or willful misconduct under this Agreement.

11.       Miscellaneous

a.  Assignment.  Sales Consultant will not assign any right or interest under this Agreement, or delegate any work or other obligation to be performed or owed by Sales Consultant under this Agreement without Company’s prior written consent.  Company may assign this Agreement, in whole or in part, to any affiliate or successor.  Any attempted assignment or delegation in contravention of these provisions will be void and ineffective.

b. Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, the remainder of the Agreement will be valid and enforceable and the Parties will negotiate in good faith a substitute, valid and enforceable provision which most nearly puts into effect the intent of the Parties.

c.  No Waiver.  This Agreement may not be altered, modified, or amended in any way except in writing signed by both Parties.  The failure of a Party to enforce any provision of the Agreement will not be construed to be a waiver of the right of such Party to thereafter enforce that provision or any other provision or right.

d. Entire Agreement.  This Agreement and the attachments hereto represent and constitute the entire agreement between the Parties, and supersede and merge all prior negotiations, agreements, and understandings, oral or written, with respect to any and all matters between the Sales Consultant and Company.

e. Governing Law.  The Parties hereby agree that this Agreement is governed by the laws of the United States and the state of [STATE], without reference to rules governing choice of laws.  If any dispute arises concerning this Agreement, venue shall be laid exclusively in the state and federal courts of [COUNTY] County, [STATE] which shall have exclusive jurisdiction over such dispute and the Parties consent to the personal jurisdiction of such courts. 

f.              Notices.  All notices, demands or other communications required or permitted to be given under this Agreement by either Party to the other may be effected either by personal delivery in writing or by U.S. mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the other Party at the address appearing in the introductory paragraph of this Agreement, but each Party may change such address by written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of two (2) days after mailing.

            IN WITNESS WHEREOF, the persons signing this Agreement on behalf of the Parties hereto warrant, covenant and represent they are duly authorized to execute this Agreement on behalf of the parties for whom they are signing.  The Parties, by their authorized representatives, have executed this Agreement as of the Effective Date.

EXHIBIT A

Compensation Schedule

1.    [Insert the commission percentage that will apply]

2.    [Insert the amount of time the company has to forward commission payments to sales consultant.]

3.    [Insert whether the company may or may not deduct offsets or charge-backs relating to past sales from future commissions.]

4.    [Explain the circumstances under which no commission will be given.]

5.    [Describe other compensation the sales consultant may receive from company or emphasize that the commission percentage is the sales consultant’s only compensation from company.]

6.    [Explain that sales consultant is responsible for paying its own taxes on the compensation received.]

7.    [Describe any process to resolve commission disputes.  For example, the parties may agree that any dispute or claim with respect to the entitlement and/or amount of commissions will be made in writing to company within 45 days from the end of the month for which commissions are claimed as to entitlement and/or amount.  Failure to timely raise in writing any claim or dispute with respect to entitlement or amount will constitute total waiver by sales consultant of any such commissions.]