2. Agency is a legal system in which the agent acts independently with the third party in the name of the principal within the scope of agency, and the legal consequences arising therefrom are directly owned by the principal. Then, how to determine the standard of abuse of agency? As long as one of the following conditions is met, it constitutes abuse of agency:
(a) beyond the scope of authorization of the client.
(2) No agency right.
(3) The agent improperly uses the power of attorney, which damages the rights and interests of the client.
3. If the agent continues to exercise the agency right in the name of the principal after the termination of the agency right, the legal consequences arising therefrom shall be borne by the agent. However, if the power of attorney of the agent has expired due to the negligence of the principal, the agency relationship between the principal and the agent, that is, the internal relationship, has been terminated in time, and the agent continues to use the power of attorney after the termination of the power of attorney, the responsibility shall be borne by both the agent and the principal.
There are two situations in which an agent carries out activities in the name of the principal without being granted the power of agency: one is that the agent carries out activities in the name of the principal knowing that he has no power of agency; Secondly, due to some behaviors of the principal, such as putting the power of attorney at the agent's office, the agent mistakenly believes that he has the power of attorney and conducts activities in the name of the principal, which is usually called agency by estoppel. In the first case, if the principal exercises right of ratification, the principal shall bear the legal consequences. Before the principal exercises the right of ratification, when the third party knows that the agent has no power of agency, it can exercise the right of cancellation, that is, it only needs to restore the original state of both parties. If the principal remains silent, the third party has the right to urge the principal to exercise or refuse to exercise the right of ratification, or to presume that the principal exercises the right of ratification prescribed by law, so as to determine the ultimate undertaker of the corresponding legal consequences.
4. The law prohibits an agent from engaging in legal acts with himself within the scope of agency authority, that is, representing himself.
The law also prohibits agents from representing both parties at the same time.
What should I do if the legal agent abuses his power of agency and harms the interests of the principal? We can learn from foreign regulations on parental rights, restrict or even deprive legal agents of their power of agency, and make other appointments, so as to turn legal agents into appointed agents. The losses suffered by the principal shall be compensated by the agent.
The agency in the appointed agency is often based on the application of the principal, the ruling of the people's court and the appointment of the relevant authorities. The appointed agent shall bear all the consequences of abusing the agency right.
The people's court or the relevant organ as the designated organ shall not bear the responsibility. However, if the appointed agent abuses his power of agency due to improper designation by the court or the relevant authorities, the relevant authorities or the court shall be responsible for the losses caused by the client as a punishment for his dereliction of duty.
The above-mentioned forms of abuse of agency rights and their legal consequences are actually a correction of the unbalanced agency relationship, trying to stabilize a series of legal relations around the agency system, thus maintaining transaction safety, promoting the smooth circulation of goods and giving full play to the advantages of the agency system.
1.0 scope of cooperation
1. 1 Party A authorizes Party B to act as Party A's agent in the designated area and sell (branded) business communication products as follows;
I) Authorized agent products: (hereinafter referred to as "products");
Ii) The authorized area includes: (hereinafter referred to as "designated area").
1.2 The above designated areas are not exclusive to Party B, and Party A has the right to develop other agents.
1.3 Without the approval of Party A, Party B shall not authorize its subordinate agents.
2.0 Sales target and cooperation period
2. 1 Party B agrees that the first order amount after the signing of this agreement is RMB fifty thousand yuan only (50,000 yuan), which shall be paid to Party A in full. Thereafter, the order amount for each quarter shall not be less than RMB fifty thousand Yuan only (RMB 50,000).
2.2 This agreement shall come into force as of the date of signing and shall be terminated on. After examination, you can be transferred to a first-class agent.
3.0 Principles and Terms of Cooperation
3. 1 As the agent of Party A, Party B shall actively sell Party A's products in the designated area, develop potential customers and expand market share. Within the range of products sold by the agent, Party A's products shall be the main products.
3.2 When selling, Party B shall not compete at low prices, cross-border sales or intentionally slander the reputation of Party A and/or other agents. Party A has the right to cancel this agreement immediately if the relevant misconduct eventually leads to the user's termination of purchase, cancellation of contract or switch to other brand products.
4.0 Rights and obligations of Party A
4. 1 Party A provides qualified products to Party B at a fair, reasonable and uniform price, provides product sales materials and market information, and plans product advertising, product display and market promotion.
4.2 Party A shall provide business and engineering technical training and support to Party B, and establish a nationwide sales and after-sales service network with agents. As the general agent in North China and Northwest China, Party A does not sell to end users in the areas under its control.
4.3 Party A has the right to request Party B to provide the inventory, product flow direction, sales orders and details/sales outlets of its subordinate agents for Party A's review and filing, and Party A shall provide Party B with sales information and inventory.
4.4 Party A shall keep the business information provided by Party B strictly confidential and shall not disclose it to a third party without Party B's consent.
4.5 Party A and Party B will assess the progress and performance quarterly according to the agreed sales target. If it fails to meet the standards, Party A may notify Party B in writing 1 month in advance to cancel the agency right in part or in whole in the designated area until this Agreement is terminated.
5.0 Rights and obligations of Party B
5. 1 Party B shall sell the products in the designated area at the price specified by Party A, and shall not dump them across regions and/or at low prices. If there is cross-regional sales, you must negotiate with the general manager in charge of the region to buy goods.
5.2 Party B shall not compete with other agents for customers outside the designated area. For (brand) internal customers, their affiliated enterprises and Party A's major customers, Party B shall not use the products of this agreement to compete with Party A or (brand) series switches.
5.3 Party B may ask Party A to provide marketing and technical service support, and ask Party A to participate in product promotion and hold a demonstration meeting in the designated area.
5.4 In order to protect the interests of users and the brand image of (brand), Party B shall directly purchase all products and related supporting equipment/software from Party A to ensure the technical quality and normal use of products. Without the approval of Party A, it is not allowed to purchase from a third party.
5.5 Party B shall cooperate with Party A to establish a national market information network, provide accurate market and competitor information to Party A in time, and actively cooperate with Party A to promote and sell Philips communication products and services in business activities.
6.0 Sales Behavior Regulations
6. 1 product price
6. 1. 1 Party B must abide by Party A's price regulations. Please refer to Annex I for the detailed price.
6. 1.2 (brand) will review the price regulations at the beginning of each year, and Party A will notify Party B in writing according to the latest price regulations of (brand). For sales orders confirmed before price adjustment, the unit price will not be adjusted.
6.2 ordering process
6.2. 1 At the beginning of each month or quarter, Party B shall send it to Party A in the form of a standard purchase order. Each purchase order must specify the quantity, product type and delivery time. The purchase order may also be accompanied by other terms on procurement and transportation and other conditions agreed in writing in advance.
6.3 Payment Terms
6.3. 1 Party B shall, within three (3) days after the order is confirmed, remit the deposit of thirty percent (30%) of the total price to the account designated by Party A, and fax the remittance slip to Party A. The remaining seventy percent (70%) shall be paid in one lump sum before delivery, and Party A will arrange delivery after receiving the full amount. If Party B fails to pay the deposit and balance according to the payment terms, Party A has the right to postpone the agreed delivery date.
6.4 delivery date
6.4. 1 Party A shall arrange delivery within thirty (30) days after receiving the contract deposit. If there are special requirements for delivery arrangements, Party A and Party B can solve them through consultation. If the goods are lost or damaged in transit, Party A will be responsible.
6.5 Quality Assurance and After-sales Service
6.5. 1 the quality guarantee period of the products sold by party a is fifteen months (15), counting from the delivery date. During the warranty period, if the product fails under normal working conditions, Party A will provide maintenance services for the product free of charge, and Party B will be responsible for the transportation expenses of the first trip. In case of any fault caused by man-made, improper operation or natural loss/disaster, Party B shall be responsible for all maintenance expenses and pay all transportation expenses arising therefrom.
6.5.2 In case of product failure caused by product design and/or manufacturing defects and/or software defects, Party A shall be responsible for free maintenance, and Party B shall be responsible for transportation expenses for one-way maintenance.
6.5.3 In addition to the quality guarantee, Party A will charge maintenance fees and related transportation fees not higher than twenty percent (20%) of the product agency price, and the repaired hardware will enjoy a six (6) month quality guarantee period.
6.5.4 Party B shall collect the plates to be repaired and classify them according to the shelf life, and distribute them to Party A at the beginning of each month. Party A will check the damage after receiving the board, complete the maintenance within thirty (30) days and notify Party B, and Party B shall pay the related maintenance fee within seven (7) days after receiving the notice. Before paying the maintenance fee, Party A has the right not to return the relevant circuit board. If Party B fails to pay the relevant maintenance expenses within thirty (30) days after receiving the notice, Party A has the right to dispose of the plate sent for repair by itself to compensate Party A for the maintenance expenses and related expenses.
6.5.5 Party A will notify Party B to handle the unrepairable plate. If Party B fails to reply within thirty days (30 days) after the notice is issued, Party A has the right to deal with the board that cannot be repaired by itself, and Party B has no right to pursue it.
6.5.6 Party B shall provide users with good sales and technical services, train enough qualified engineers to provide on-site product installation and maintenance services, and reserve enough spare parts to meet customers' maintenance and replacement needs.
6.6 Anti-channeling and Anti-low-price management
6.6. 1 The act of Party B sending Party A's products to areas outside the designated area and accepting foreign orders is called goods smuggling.
6.6.2 Party A and Party B shall record the serial number of products and the receiving unit/agent in detail, so as to track the flow of products and supervise the smuggling of goods.
6.6.3 Party A has the right to supervise Party B and review sales orders and delivery records. If any goods are found to be smuggled, Party A may punish Party B to compensate the infringed agent.
6.6.4 The compensation for smuggled goods will be 100% of the price of smuggled goods. According to the agency price, 50% of the fine will be paid directly to smuggled goods as compensation for smuggled goods. If Party B is impacted by foreign goods, Party B has the right to obtain the same compensation from the buyer according to Party A's regulations.
6.6.5 When proving other people's goods smuggling behavior, Party B shall provide valid certificates such as product purchase invoice and serial number, and provide evidence objectively and honestly.
6.6.6 Party B shall sell in the designated area according to Party A's price system to prevent and stop dumping at low prices.
6.6.7 In case of serious goods smuggling and low-price dumping, Party A has the right to immediately cancel Party B's agency qualification and investigate its economic responsibility.
7.0 Trademark Use
Without the written approval of Philips, Party B has no right to use the trademarks and/or text marks of Philips.
8.0 Responsibility for Confidentiality
8. 1 As far as this agreement is concerned, Party B has only the right to consult the confidential information provided by Party A for cooperation.
8.2 Party B promises that it will not use, disclose or allow any third party to use the confidential information for purposes other than this agreement, nor will it disclose any confidential information belonging to Party A to its employees unless these employees need to know the confidential information for work reasons.
8.3 Party B will sign the same or similar confidentiality agreement with the employees who know and understand Party A's confidential information for the above reasons, and will take all reasonable measures to protect the confidential information, so as to prevent it from being used by employees who know and understand the confidential information or being mastered and understood by the public under the cooperation content determined by both parties.
8.4 The transfer of confidential information by Party A to Party B under this Agreement does not mean that Party A grants Party B any patent right or copyright, or that Party B has any other rights to such confidential information.
8.5 The above-mentioned confidentiality period shall be valid for three (3) years from the effective date of this Agreement to the end of the agency relationship between both parties.
8.6 If this Agreement is terminated, Party B shall return all business documents, catalogues, advertising materials, technical materials, samples and other materials required for selling Party A's existing products within ten (10) days from the date of termination. Party B shall also provide Party A with a detailed list of customers related to Party A and corresponding reports to ensure continuous service to customers, and Party B shall not use Party A's brand or name for business activities in any way.
8.7 If Party B violates the above agreement, Party B will unconditionally guarantee to compensate all the direct and indirect losses caused to Party A thereby.
9.0 Effective and Termination of the Agreement
9. 1 This agreement shall come into force after being signed and sealed by both parties. From the effective date of this contract, it will replace all previous oral or written agreements.
9.2 If one party fails to perform its obligations under this Agreement or violates the relevant provisions of this Agreement, the other party shall promptly notify the defaulting party in writing to stop the behavior. If the breaching party fails to make corrections within fifteen (15) days after receiving the correction notice, the party giving the notice has the right to terminate this contract immediately and demand the breaching party to compensate for the losses caused thereby.
9.3 During the validity period of this contract, either party may notify the other party in writing three (3) months in advance to terminate this contract. Under the following circumstances, Party A has the right to notify Party B in writing to terminate this contract at any time:
9.4 Party B goes bankrupt or receives bankruptcy order, or carries out rectification;
9.5 The shareholder or controlling party of Party B changes or Party B's business is transferred to other parties.
9.6 If the performance of this Agreement is delayed or cannot be fully performed due to an event of force majeure, either party shall notify the other party in writing within ten (10) days from the date of the event and explain the reasons, and shall take measures to prevent the loss from expanding. If the loss of the other party is enlarged due to the failure to notify the other party in time or take corresponding measures, the breaching party shall be liable for compensation for the enlarged loss. If the accident cannot be eliminated within ninety (90) days after the accident, both parties may terminate this contract through written negotiation. The above force majeure refers to unpredictable and uncontrollable emergencies including but not limited to natural disasters, government actions and wars.
10.0 dispute resolution
In case of any dispute between the two parties in connection with this agreement or in the course of performance, both parties shall settle it through consultation; If negotiation fails, a lawsuit can be brought to the people's court with jurisdiction where Party A is located.
1 1.0 notification address
If the address, telephone number and fax number indicated in Part I of this Agreement are changed, either party shall promptly notify the other party in writing, otherwise the responsible party shall bear the consequences caused by the failure to deliver the relevant notice.
12.0 partial failure
The invalidity of any part of this contract shall not affect the validity of the remaining clauses of this contract.
Title of 13.0 protocol
The title of this agreement is for identification only and does not affect the interpretation of this agreement or any part thereof.