Briefly describe any legal requirements regarding recalls of distributed products. Can the distribution agreement specify which party is responsible for performing and covering the costs of a recall? So what are the implications of this law? This means that whenever a commercial agency contract comes under Swiss law, the customer (or agent) can terminate the contract at any time without notice. A fixed-term, indefinite commercial agency contract may be terminated at any time with immediate effect for just cause, i.e. if there are circumstances that make the continuation of the agency relationship unreasonable for the party to terminate. For example, uncertainty as to whether the procuring entity is able to deliver, the refusal of the representative to carry on its business or the bankruptcy of the representative may be an important reason. The parties may try to define the “right reasons” in the agency contract. However, such a definition serves only to indicate what the parties consider to be unacceptable. However, the court will continue to have the opportunity to recognize other well-established or unlisted valid grounds as sufficient to set a time limit with immediate effect. Except in serious cases, the party who wishes to terminate a commercial agency contract with immediate effect is obliged to notify the other party and ask him to remedy a breach before terminating with immediate effect. If none of the parties to a commercial agency contract is domiciled in a Member State of the Lugano Convention, Article 5 of the IPRG shall apply.
According to this provision, an agreement conferring jurisdiction may be concluded in writing, by telegram, telex, fax or by any other means of communication which proves the terms of the contract by a text. Article 5 of the IPRG is therefore stricter than Article 24 of the Lugano Convention. Yes, § 418g CO stipulates that the contractor is entitled to the agreed or usual commission for all transactions that he has facilitated or concluded during the term of the contract. This rule is mandatory and therefore cannot be repealed in advance by the parties. Unless otherwise agreed in writing, the commercial agent is also entitled to the agreed or customary commission for all transactions during the agency relationship by the client without the participation of the agent, but with clients acquired by him for such transactions as well as for transactions concluded during the agency relationship with clients belonging to an exclusive territory or to an exclusive clientele, be completed. Most service contracts are subject to Swiss agency law. This is due to the fact that, with the exception of employment contracts, Swiss legislation does not lay down separate provisions for the provision of services for remuneration. Due to the size and spectrum of this sector of activity, a wide variety of contracts are therefore subject to agency law. Therefore, it is worth considering including an appropriate arbitration clause in an international or even national agency contract. It is often advisable to use a standard clause of an arbitration institution, such as. B the model clause of the Swiss Rules of International Arbitration of the Arbitration Institution of the Swiss Chambers. At the end of the agency relationship, all of the Contractor`s commission claims become due, unless the parties have agreed otherwise in writing.
In principle, the intermediary is entitled to commissions for all customer orders that he has acquired during the mediation relationship if these orders are placed before the end of the mediation contract. However, the client and the agent are free to agree on a different rule. In addition, each party must return to the other party everything it has received from the other party or from third parties on behalf of the other party during the agency relationship. This applies in particular to movable property, funds and other documents (e.g. B marketing materials, samples, customer-related materials, etc.) that are in the possession of the contractor. However, the agent has a special inalienable privilege over the client`s movable property and funds in order to guarantee claims against the client of the commercial agency contract. As already mentioned, Swiss antitrust law prohibits in principle all agreements which significantly restrict competition in a market for certain goods or services and which are not justified on grounds of economic viability, as well as all other agreements which eliminate effective competition (Article 5, paragraph 1 of the Cartel Act). In the case of vertical agreements, agreements fixing fixed or minimum prices and distribution agreements for the division of territories, in so far as sales by other distributors in those territories are not authorised, are presumed to eliminate effective competition (`hardcore restrictions`). The vertical notice sets out the criteria according to which vertical agreements may unlawfully restrict or eliminate competition. The question of a possible analogous application of Article 418u OR to the franchise agreement has not yet been clarified by the Federal Court. However, a majority of the authors are of the opinion that the franchisee, because of its status as a quasi-subsidiary of the franchisor, can probably claim compensation for customers under the analogous application of § 418u CO.
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