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Commissionaire Agreement

1 Definitions, inclusion of standard terms and conditions

1.1 The Parties have agreed that, unless otherwise agreed, their contractual relations in connection with the execution of transactions under the Commissionaire Model will be governed solely by the terms set out in this Commissionaire Agreement.

1.2 Definitions

1.2.1 ‘Mercateo’ means the respective national Mercateo subsidiary performing the contract and specified at https://unite.eu/en_GB/howTo/mercateo-commission-agents for the respective contract territory.

1.2.2 ‘Provider’ means the company on whose account Mercateo sells Items from the respective Unite BusinessShop for the respective contract territory in Mercateo´s own name to a Customer under the Commissionaire Model.

1.2.3 ‘Customer’ means the company to which Items are offered and sold under an agreement between the Provider and the Customer as well as between Mercateo and the Customer.

1.2.4 ‘Parties’ means Mercateo and the Provider.

1.2.5 ‘Third Party’ means anyone not covered by the term ‘Party’.

1.2.6 ‘Affiliated Company’ of a Party means any legal entity, person or organisation that …

  1. … is controlled by the respective Party, or

  2. … controls the respective Party, or

  3. … is controlled by the same company as the one controlling the respective Party.

‘Control’ means the direct or indirect ownership of more than 50% of the voting rights in such a company or the contractually or otherwise granted power to appoint the management of this company.

1.2.7 ‘Items’ means goods and services presented by the Provider in its Catalogue.

1.2.8 ‘Catalogue’ means the product catalogue made available by the Provider in accordance with General Contractual Conditions for Unite Providers.

1.2.9 ‘Unite’ means the B2B network of Unite Network SE.

1.2.10 The ‘Commissionaire Model’ between Unite Network SE and the Provider is described in the document Commissionaire Model: Service Description.

1.3 Any terms of the Provider which are not subject to this Commissionaire Agreement – in particular the standard terms and conditions of the Provider, or any terms which contradict the Commissionaire Agreement – are expressly excluded unless Mercateo has explicitly consented in writing to their application. Consent to such terms being included will not be granted even if there is no explicit objection to a declaration aimed at their inclusion (e.g. referencing in business documents, delivery notes, etc.). Moreover, any constructive change – especially the rendering of the agreed service or payment, or the unconditional acceptance thereof – should not be construed as consent to the inclusion of standard terms and conditions.

2 Subject of the Commissionaire Agreement

2.1 Under the Commissionaire Model, the Customer’s orders are executed via Mercateo.

2.2 Acting as the Commissionaire, Mercateo sells the Provider’s Items in its own name and for the account of the Provider to prospective Customers. Mercateo will process the enquiries in each individual case and the resulting transactions for the account of the Provider while exercising all reasonable and usual care, skill and forethought. The legal basis of the Commission Model is provided by either Sections 383ff. of the German Commercial Code (HGB – Handelsgesetzbuch) whenever German law applies or the statutory regulations corresponding to Sections 383ff. German Commercial Code which are applicable in the domicile of the respective Mercateo company executing the Commissionaire Agreement.

2.3 On the basis of the terms and conditions of business contained in the Special Section of the Unite Terms of Use (posted at https://unite.eu/en-global/terms-of-use), Mercateo acts towards the Customer as the provider of the Items of the Provider (hereinafter ‘Sale to the Customer’). In the Commissionaire Model, ‘Provider’ in Part B of the Unite Terms of Use is to be read as ‘Mercateo’.

2.4 Upon receipt of a Customer’s order via Unite, Mercateo will place a corresponding order in electronic form with the Provider to execute the order.

2.5 Mercateo guarantees the Provider that orders will only be placed on Unite by Customers where it has been ensured that the purchase price claim arising from the order will be met. To this end, Mercateo will check the creditworthiness of the respective Customer as follows:

  1. Mercateo will obtain information from a recognised credit reference agency (e.g. Creditreform, SCHUFA, Creditsafe, Compagnie Française d’Assurance pour le Commerce Extérieur SA [‘Coface’], CRIF or similar);

  2. The information used may not be more than six months old. This will not apply if Mercateo has a monitoring agreement with the credit reference agency – instead, the credit agency’s most recent rating will apply;

  3. Mercateo will assign an appropriate limit for the respective Customer depending on its credit score calculated by the credit agency as well as payment experience with this Customer. More significance is attached to positive payment experience (meaning the Customer pays its invoices no later than 34 days after the due date, there are no outstanding claims which have been due for more than 34 days, and the most recent payment was received no longer than 12 months ago) than the credit report. On request, Mercateo will inform the Provider about current limits and the requirements to be met in order for them to be granted.

3 Invoicing

3.1 Mercateo hereby assigns to the Provider all claims arising from Sale to the Customer; the Provider accepts this assignment. Mercateo will remain authorised to collect these claims in the course of its business operations.

3.2 Sale to the Customer and the issuance of the invoice for the Customer take place with the net purchase price quoted by the Provider in the Catalogue plus taxes at the rates quoted and any other applicable public charges. The Provider will invoice Mercateo directly for the order received from Mercateo and will not invoice the Customer. No deviations are permitted in the Provider’s invoice for Mercateo from the data specified in the order unless the Customer has agreed to such deviation.

3.3 The Provider’s invoices to Mercateo are to be paid as follows:

3.3.1 Whenever Mercateo makes payments to the Provider under the guarantee contained in Section 2.5, the Provider will assign its claims against the Customer arising from Sale to the Customer pursuant to Section 3.1 to Mercateo, which will accept this assignment.

3.3.2 If the claims settled under the guarantee contained in Section 2.5 exceed (i) the limit set by Mercateo for the respective Customer or (ii) the limit set by the Provider, the Provider’s invoice to Mercateo will only be deemed to have been settled after payment in full has been received from this Customer and recorded by Mercateo, irrespective of any agreed payment terms.

3.3.3 If the outstanding claims according to Section 3.3.2 exceed the limit set by the Provider, the Provider has the option to reject orders from Merctaeo for orders until the limit is cleared by fulfilment of the Provider´s claims. The Provider´s right to terminate the framework contract regarding the respective BusinessShop vis-à-vis the Customer remains unaffected.

3.3.4 This does not include the assumption of del credere risk by Mercateo.

3.4 Payment is deemed to have taken place once Mercateo has transferred the amount to an account specified by the Provider. The Party making payment will bear the charges incurred for processing the payment except for those costs incurred at the recipient’s bank for receiving and crediting payment.

4 Obligations of the Provider

4.1 Transaction-related obligations

4.1.1 Mercateo’s respective order to the Provider will be performed in execution of the Commissionaire Agreement in accordance with the criteria quoted by the Provider such as price, availability and delivery time.

4.1.2 The Provider will ship the Items directly to the Customer specified in the order, notify Mercateo on request of the time when they were handed to the forwarder, and if possible promptly inform Mercateo once the Items have been delivered to the Customer using an electronic remittance advice. This electronic remittance advice recording dispatch to the Customer must also contain the same information as that included in the delivery note addressed to the Customer and which allows the shipment to be tracked and/or traced.

4.1.3 All Customer enquiries regarding Items as well as orders and their processing must be directly and exclusively dealt with by the Provider, unless otherwise agreed. The Provider is obliged to deal with the Customer’s claims as agreed while exercising all reasonable and usual care, skill and forethought. If the Provider agrees on customer support or comparable services those services will not be provided by Mercateo but an Affiliated Company.

4.1.4 Irrespective of the legal basis, any returns are to be sent directly to the Provider by the Customer.

4.1.5 The Provider will be solely responsible for the preparation, execution and follow-up of any product recalls. Mercateo will assist the Provider with any product recalls if necessary.

4.1.6 The Provider will pay Mercateo commission on the net invoice amount including all shipping costs for completed Customer contracts as described in Section 2. Commission is payable on each Sale to the Customer concluded with legal effect via Mercateo. The amount of commission to be paid to Mercateo is set out in the Product Data Sheet for the Commissionaire Model.

4.1.7 The Provider will be invoiced separately for commission after receipt of payment from the Customer.

4.1.8 The Provider agrees to issue all VAT (value-added tax) relevant documents including credit notes and corrected invoices to Mercateo (and not to the Customer) in order to ensure that transactions are executed exclusively via the Commissionaire Mercateo.

4.2 Item-related obligations

4.2.1 Upon request by Mercateo, the Provider must furnish a supplier’s declaration for items having preferential origin status.

4.2.2 The Provider is responsible for the merchantability of the Items listed in its Catalogue as well as for having the wherewithal to offer and market the Items, especially through an online platform.

4.2.3 All Items offered and delivered must comply with the applicable European regulations and directives, their provisions for implementation in national legislation, and any other relevant national regulations within the Contract Territory as applicable.

4.2.4 The Provider is obliged to note the requirements concerning Items and posted at https://www.mercateo.co.uk/corporate/mercateo-articlerequirements-uk/, and in particular to ensure that the Items offered in its Catalogue comply with these requirements. Mercateo will notify the Provider by email of any amendments to these requirements so that the Provider can continue to meet its obligations.

4.2.5 On the website http://www.mercateo.com/corporate/unterlassungserklaerungen the Provider with a list of cease-and-desist declarations and declarations of commitment already submitted and signed by Mercateo with and without penalty. The Provider undertakes to actively observe this list and, in particular, to ensure that the circumstances prompting these cease-and-desist declarations and declarations of commitment are not repeated in its Catalogue or in any other form of presentation via Unite. Mercateo will promptly notify the Provider of any amendments to this overview by email so that the Provider can continue to meet its obligations in this regard.

5 Indemnity

5.1 If a Third Party asserts claims against Mercateo in connection with the nonperformance of assurances, warranties or obligations of the Provider based on this Commissionaire Agreement or the respective order, or on the basis of statutory regulations relating to Items offered by the Provider, the Provider agrees to indemnify Mercateo against any such claims and the related costs, expenses and damages.

5.2 If the Provider is obliged to indemnify Mercateo against claims for damages asserted by Third Parties, the Provider agrees to defend Mercateo at its own expense against such claims or to support Mercateo in its defence if called upon to do so by Mercateo.

5.3 This indemnity applies to the same extent to the executives, board members, employees, legal representatives and attorneys-in-fact of Mercateo and/or any companies affiliated with Mercateo.

6 Liability

6.1 Mercateo will be fully liable for any loss arising from death or personal injury resulting from any breach of its obligations by Mercateo or Mercateo’s legal representatives or vicarious agents.

6.2 Furthermore, Mercateo will also be liable for any other loss resulting from any intentional or grossly negligent breach of obligations by Mercateo or its legal representatives or vicarious agents.

6.3 In the event of any other loss attributable to ordinary negligence, Mercateo will bear liability if it has infringed a material contractual obligation. However, its liability will be limited to the loss foreseeable at the time when the Agreement was concluded and typical of the nature of the Agreement, i.e. no more that € 5 million per case. Material contractual obligations are obligations whose performance is essential for the proper execution of the Commissionaire Agreement and on whose performance the Provider may reasonably rely.

6.4 Liability for fraud and/or warranties remains unaffected.

6.5 The above provisions regarding liability apply equally in favour of the Provider and also to the Provider’s indemnification obligation pursuant to Section 5.

7 Sanctions lists, embargo measures

7.1 Neither the Provider nor any of its Affiliated Companies or financial institutions are subject to any sanctions, are included on any list of prohibited or restricted persons or companies, or are owned or controlled by any person named on such a list, including but not limited to the sanction lists maintained by the United Nations, the European Union or its Member States as well as lists of prohibited or restricted parties maintained by the government of the United States of America.

7.2 The Provider’s legal transactions to be processed via Unite, including the related capital and payment transactions, are not affected by any embargo measures.

8 Fiscal responsibility

8.1 In the relationship between Mercateo and the Provider, each Party is responsible for submitting all relevant VAT (value-added tax) returns. Mercateo and the Provider undertake to provide each other with all tax returns as well as all notices and certificates in relation to any other taxes or public charges required by the contractual relationship.

8.2 The Provider is responsible to Mercateo for issuing legally compliant invoices as well as corrected invoices.

8.3 The Provider is responsible for the correct calculation, reporting and payment of all taxes and/or any other public charges to the proper authorities which are levied or arise in connection with the commissionaire relationship unless the Provider cannot be held responsible for the accrual and/or payment of these taxes and other public charges.

8.4 If any taxes or other public charges are levied on Mercateo or any of its Affiliated Companies in connection with the rendering of services for the Provider, the Provider will be liable for these taxes or other public charges in so far as the Provider can be held responsible for the accrual and/or payment of these taxes and other public charges.

8.5 The Provider must indemnify Mercateo or its Affiliated Companies from paying these taxes and/or other public charges and/or reimburse any taxes and/or other public charges that have already been paid.

8.6 Regarding the aforementioned responsibilities, the Provider must comply with the regulations concerning taxes and other public charges in force in the domicile of the Mercateo company executing the Commissionaire Agreement and in the Contract Territory.

9 Data protection

9.1 Mercateo and the Provider agree to observe the applicable laws and agreed rules on data protection, and to adequately place those entrusted with the implementation of this Agreement under obligation to act appropriately regarding compliance with the laws and agreed rules on data protection.

9.2 The Provider undertakes to use the Customer’s data received from Mercateo exclusively for processing an order from Mercateo. The Provider is obliged to obtain the Customer’s express consent before any data sent by Mercateo may be used for any purpose other than processing the order.

9.3 The Provider agrees not to share any Customer data sent by Mercateo with Third Parties in any way, e.g. by selling or exchanging it. Data may only be shared with a Third Party by Mercateo in connection with order processing if the Third Party concerned has undertaken to the Provider to comply with the relevant data protection regulations.

9.4 The Provider undertakes to delete any and all Customer data obtained from Mercateo once the order has been executed. This shall not apply if the Provider has received legally required consent from the Customer (especially under data protection legislation) to use the data. If there are any statutory regulations and/or reasons for preserving evidence which prohibit deletion at the time, access to the data will be blocked; such data must be deleted as soon as blocking access can no longer be justified.

9.5 The Provider agrees to delete Customer data sent by Mercateo on request. If the Provider breaches the foregoing provisions, Mercateo will have the right to demand the deletion of all data obtained from Mercateo by the Provider unless there are legal objections to said deletion.

If any of these requirements is not met, Mercateo will be entitled to terminate the Commissionaire Agreement without notice for good cause.

10 Contractual period

10.1 The Commissionaire Agreement is concluded for an indefinite period of time and will come into force when signed unless otherwise agreed.

10.2 The Commissionaire Agreement may be terminated in writing with three months’ notice with effect from the end of a month.

10.3 The right to immediate termination for good cause remains unaffected.

10.4 Mercateo and the Provider agree that, notwithstanding the termination of the Commissionaire Agreement, orders which have not been processed by the time termination takes effect will still be duly processed in accordance with the Commissionaire Agreement.

10.5 Furthermore, Mercateo and the Provider agree that the obligations regarding indemnity shall survive the termination of this Commissionaire Agreement for as long as Third Parties assert claims against Mercateo or the statutory limitation and warranty periods last.

11 Jurisdiction; governing law; form

11.1 The exclusive place of jurisdiction for all disputes between the Provider and Mercateo arising from or regarding this Commissionaire Agreement as well as concerning its conclusion and validity is the domicile of the respective Mercateo company executing the Commissionaire Agreement.

11.2 The Commissionaire Agreement, in particular its conclusion, validity, form, execution, termination and liquidation, shall be governed by the law in force in the domicile of the respective Mercateo company executing the Commissionaire Agreement. The United Nations Convention on Contracts for the International Sale of Goods is excluded. The same applies to any unilateral or implied legal transactions pertaining to this Agreement.

11.3 The written form can be replaced by the electronic form.

12 Severability clause; amendment of the Commissionaire Agreement

12.1 If any of the foregoing provisions is or becomes invalid or unenforceable, the validity of the other provisions shall remain unaffected. Unless the Parties affected by the provision individually agree otherwise, the invalid or unenforceable provision will be replaced by the corresponding statutory provision.

12.2 If it transpires once the Commissionaire Agreement has been signed that it does not regulate a circumstance which the Parties would have dealt with if at least one Party had foreseen it when the Commissionaire Agreement was concluded, this loophole will be closed with the corresponding statutory provision unless the Parties individually agree otherwise.

12.3 Mercateo reserves the right to amend this Commissionaire Agreement as well as any other contractually relevant documents with future effect as long as this does not affect any material aspects of the contractual relationship and is necessary in order to reflect any developments which were not foreseeable when the Agreement was concluded, and if neglecting them would significantly disrupt the balance of the contractual relationship. In such an event, Mercateo agrees to notify the Provider of any amendments in text form before they come into effect. The amendments will be deemed to have been accepted if the Provider does not object to them in writing within six weeks of notification. If the Provider objects to an amendment, Unite Network SE and Mercateo will be entitled to terminate the contractual relationship as long as the proper notice period is observed.

12.4 The obligation to comply with data protection regulations shall survive the termination of this Commissionaire Agreement.

Last updated 09/2021