In the form of an individual as well as a partnership (OHG, KG) or corporation (AG, GmbH), the commercial agent plays a decisive role for entrepreneurial success and the marketing of the goods and services offered by the company. In addition to authorised dealers, franchise companies and commission agents, commercial agents are of course an integral part of economic distribution structures. This characteristic of the commercial agent as the central figure in the distribution of a company is accompanied by a multitude of rights and obligations on both sides. For this reason, some essential legal aspects must be considered when drafting a commercial agency contract, often of many years’ standing. Our commercial law legal team reviews, drafts and revises your commercial agency contracts and ensures that the rights and obligations of both parties to the contract are clearly and comprehensibly formulated.
The commercial agent’s first and foremost duty is to actively mediate and conclude transactions in the interests of the company. In addition, they have to fulfil far-reaching duties to inform the entrepreneur and must comply with their non-competition clause. This can be maintained on a contractual basis even after termination of the agency agreement. In return, the entrepreneur has the obligation to instruct the commercial agent and to provide them with the materials and documents necessary for the performance of their commercial agency duties. During the term of the contract, the commercial agent is also entitled to commission payment from the principal and, after termination, to compensation in accordance with § 89 b HGB.
All in all, the following contractual elements should be discussed in any case in the commercial agency contract:
- Contract territory, regional limitation
- Authorisation of the entrepreneur or third parties to independently market the goods in the contract territory
- Design of the product description and marketing
- Subagent and vicarious agent
- Need for a directory of customers and turnover
- Mediation and conclusion of transactions, as well as subsequent customer care
- Takeover of the existing customer base
- Commercial agent’s rights of use of industrial property rights
- Liability agreements
- Obligation of secrecy
- Mutual information obligation
- Obligation of the entrepreneur to cooperate
- Credit assessment
- Confidentiality obligations
- Non-competition clause, in particular regulation of the post-contractual
- Settlement of commission and compensation claims
- Termination of the contract (duration, termination)
In addition, the classic sales structures, such as distribution through sales representatives, are also subject to the changes brought about by globalisation and digitalisation. The importance of e-commerce, the variety of Internet platforms and the revenue generated through Internet sales is constantly increasing. Commercial agents also use this to perform their intermediary and brokerage activities via the Internet. However, other digital requirements may become relevant, which also require special attention when concluding or extending a commercial agency agreement.
In addition to the drafting of commercial agency contracts, we also offer our support in the calculation of compensation claims after termination of the contract in accordance with § 89 b HGB. An appropriate compensation payment is to be granted to the commercial agent for the transfer of his established customer base. The correct calculation is based on several factors, is therefore very complex and often a reason for dispute between commercial agents and companies. The value of the customer base on a given date, the prospect of further contracts being concluded and prior payments by the company to the commercial agent must be taken into account.
If a prior contractual arrangement is not sufficient to secure the claims, we represent both companies and commercial agents in their enforcement after the termination of the contract. An out-of-court settlement of the disputes is always preferred by us. However, if this cannot be avoided – even with a comprehensive dispute resolution strategy – our qualified and experienced lawyers are of course also available to represent you in court.