_valuable customers data: commercial agent - compensation claim
A commercial agent is an independent entrepreneur. He sells goods/services for another company. He does not earn directly from the business but receives an agreed commission. The customer base gained in this way is valuable. If the commercial agent's cooperation with the company is terminated, the agent may be entitled to compensation.
Compensation for the built-up customer base
The contractual agreement between a company and an independent agent is an agency agreement. The agent is to conclude transactions in an unspecified number in return for a reward. A customer network grows out of this sales activity. A network that the commercial agent has built up and maintained. If the cooperation is terminated, the commercial agent loses his right to commission - at the same time, the company keeps the customer file. This customer file is worth much money. On the one hand, existing customers purchase additional products or services; on the other hand, existing customers can be approached more easily. However, since the commercial agent is now excluded from using this customer base, he is entitled to appropriate compensation under Section 89b HGB.
On behalf of thirdparty and On behalf of alien account
The right to compensation exists when a contractual relationship between an entrepreneur and a commercial agent is terminated. The commercial agent must perform this activity full-time (Section 89b (1) HGB) and as an independent trader. Self-employed means that the agent is factually and temporally free from instructions from the company. The representative continues to act ion behalf of the represented party and on the latter's account. The entrepreneur does not have to be a merchant within the meaning of the HGB.
Not every ending establish a compensation claim, § 89b (3) HGB
Not every end of the contract gives rise to a compensation claim. Roughly speaking, the contract must have been terminated by the entrepreneur. The claim must be asserted within 12 months. Initially, it does not have to be substantiated.
The claim is generally excluded if the commercial agent terminates the contract himself for personal reasons without the principal giving cause. If the commercial agent wishes to change his career and therefore quits, he loses his right to compensation. On the other hand, if the entrepreneur is responsible for the commercial agent's wish to resign, the claim can be maintained. This is the case, for example, if the entrepreneur maliciously fails to pay significant portions of the commission over a more extended period.
However, the entrepreneur is also entitled to an extraordinary reason for termination, for example, in the event of a culpable breach of duty by the commercial agent. This critical reason causes the claim to lapse.
In contrast, the claim remains intact if the termination is due to the commercial agent's age or illness. The heirs could be entitled to the claim if the commercial agent dies.
Amount of the compensation: Significant benefits and fairness
The actual amount of the compensation claim is often the subject of detailed court negotiations. The calculation is based on the monetary potential of the customer base (including forecast of its development in the next 2-5 years), commission payments made, and other benefits and conditions granted. Has the entrepreneur financed the pension plan? Did the entrepreneur benefit from particularly favorable contract conditions? Was there any remuneration independent of success?
Mainly new customers acquired by the commercial agent are taken into account. However, existing customers that have been intensified can also be taken into account. Intensified existing customers have brought in a 50-100% higher economic advantage. Furthermore, a customer churn rate of around 10% is often deducted.
The compensation is capped by a maximum amount (§ 89b para. 2 HGB) in the amount of the average annual commission from the last 5 years. The basis of the claim is the gross compensation (§ 89b (1) HGB). This is calculated from the commission income with new customers from the last twelve months.
It therefore depends on what was agreed in the contract and how the value of the customer base can be calculated. We will be happy to advise you on formulating an agency agreement and assist you in asserting or defending a claim.
Contact
Niki Feric, Lawyer, Associate.