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Explanatory Notes
Appointment of Sales Consultant
This Agreement is for the appointment of an individual to act as a sales consultant. It is prepared in the form of a letter to be issued on the headed notepaper of the company making the appointment. Two copies of the letter should be signed on behalf of the company and one of these should be countersigned by the consultant and returned to the company, thus constituting the legally binding contract between them. Under the terms of the Agreement, the consultant operates on a self-employed basis and submits invoices for his fees and expenses to the company and is responsible for payment of his own taxes. (Clauses 7 and 11). The detailed terms of the Agreement covering the services to be provided, the products which are being promoted, the territory covered by the Agreement and details concerning commission and expenses are to be inserted in the schedule which will be attached to the letter and form part of the Agreement. Although the consultant's role is to promote sales of products, he is not acting as an agent and the Agreement, in Clause 9, makes it clear that he has no authority to commit the Company or to accept any orders for products - unless expressly authorised in writing on a case by case basis. Legal advice is recommended as to whether this agreement might be interpreted as creating the appointment of an agent and, in consequence, whether the law governing agency, in particular the agent's rights on termination, might apply. The consultant, while not an employee, is required under Clause 3, to provide services for an agreed number of hours/days per week/month and holidays need to be taken after the dates have been cleared with the company. Clause 4 deals with the possibility of either the company or the consultant being responsible for maintenance of office and other facilities. one of the alternatives in this Clause will have to be deleted or amended depending on the circumstances. There are clauses which set out some fairly generally worded obligations on the part of the consultant (Clause 8) and on the part of the company (Clause 10). So far as the consultant's obligations are concerned, specific services which are not covered by Clause 8 should be dealt with in the schedule. Clauses 12 and 13 deal with confidentiality and the protection of the intellectual property rights of the company and of any manufacturer of the products which are covered by the Agreement. Other clauses deal with such issues as assignment and subcontracting, both of which are prohibited under Clause 14; termination (Clause 15); ruling language, the resolution of disputes and governing law.
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