Drafting a commercial intermediary contract

You want to organize your distribution by using commercial intermediaries: brokers, agents, commercial agents, commission agents. 

You need secure contracts that allow you to fully execute your commercial policy, protecting your image vis-à-vis your customers. 

These contracts are intended to anticipate, deter and allow the settlement of disputes in the best possible conditions. 

If at the time of the conclusion of the contract between the commercial intermediary and the network organizer, the prevailing trust and the enthusiasm to start a distribution relationship sometimes lead to underestimating the content of the contract, it is this one that will be called upon in the event of subsequent difficulties of execution and at the end of the contract, in particular of mandate or agency, when the interests of the parties will be totally divergent, concerning the commissions remaining to be paid and the customer compensation in particular. 

Gouache Avocats, as a lawyer in law of the commercial agent, and because of his in-depth knowledge of all intermediary contracts, will ensure: 

• the correct qualification of the chosen contract: brokerage, mandate, commercial agent, commission; 

• the absence of the possibility of reclassifying this contract into another type of contract (for example, a brokerage contract under a mandate, or a mandate in a commercial agency, the latter point being particularly delicate to manage and technical since the judgment of 4 June 2020 of the Court of Justice of the European Union (CJEU) (Case C-828/18, Trendsetteuse SARL v DCA SARL),  

• the compliance of all the clauses of the contract with the mandatory provisions of the law: for example, the status of commercial agents of Articles L. 134-1 et seq. of the Commercial Code, or of the Monetary and Financial Code for credit brokers. 

 Beyond this requirement which is due to you, but which it must be remembered that it ensures the strength of your distribution network and is a determinant of the valuation of your company, Gouache avocat will allow your contract to reflect your commercial policy and ensure that you can supervise the commercial action of your commercial intermediaries: 

• use of your marketing materials, 

• use of your commercial speeches, 

• respect for your prices, 

• adherence to your sales promotions, 

• use of your pre-contractual consumer/customer information documents, 

• gathering the information necessary for opening customer accounts, 

• collection of the supporting documents necessary for the opening of accounts receivable, the execution of contracts, the collection, 

• subscription to a loyalty program, 

• satisfaction measurement, etc. 

It is the loyalty of your business practices that depends on it, as well as the image of your brand with your customers. 

Our Method for Drafting a Commercial Intermediary Agreement

There is no standard contract, no template. Beyond the clauses necessary for the qualification of each intermediary contract, all other clauses are intended to reflect your choices: 

• commercial policy, 

• d’organisation de votre réseau de distribution. 

We therefore ask you first of all about what is important to you, in terms of what you expect from your distributors. 

This approach is organized around a comprehensive questionnaire that structures our exchanges around concrete themes. For each question, we present the possible response options, their advantages and disadvantages, share our market benchmarks and make our recommendations. 

This method guarantees you a brokerage contract, mandate, or a sales agent or sales commission contract that is personalized and effective with regard to your commercial policy. 

To delve deeper: The content of a sales agent contract 

There is no “template” for a sales agent contract. Moreover, a commercial agent contract can perfectly well be verbal, and therefore not be the subject of any formalisation. 

This is not in anyone’s interest: firstly, proof of its content will be difficult, if not impossible, and neither party will be able to establish its rights. Then, you will not have any duplication clause of your commercial policy and your risks of damage to your brand image will be maximum. Finally, no rules guiding the relationship will be accessible to the agent, which will quickly be detrimental to the relationship, as everyone is unaware of the agreed standard of behavior. It should be noted that the agent must produce a copy of his commercial agent contract if he must register in the register of commercial agents. 

The sales agent contract must include at least the following clauses.