Would this be a breach of contract?

[QuestionAsker2]

What is the name of your state (only U.S. law)? Arkansas

I worked as an independent contractor over the summer selling Cutco kitchen knives. While doing so I bought some knives for my sales demo kit (at reduced pricing). I now wish to sell them, but I asked my manager and he said that doing so online would be a breach of contract. Here is the pertinent part of my contract:

1. Sales Rep may from time to time personally solicit orders for CUTCO consumer products through various marketing methods to be determined by Sales Rep on an inhome
basis or otherwise than in a permanent retail establishment. These products are to be sold directly by Sales Rep and shall not be advertised or sold through
electronic media, or on the internet, unless agreed to in writing by the Company. Sales Rep agrees to turn in all orders to the Company within a reasonable amount of
time, not to exceed one week. Upon approval from his/her manager, the Sales Rep shall be authorized to conduct on-line presentations for the purposes of soliciting
CUTCO orders. This authorization does not include the sale of CUTCO through shopping websites and/or online auctions, including but not limited to E-Bay, Amazon or
others.

To me, this seems to only refer to sales I make on behalf of the company, not of knives I personally own. Would selling my knives online be a breach of contract?

 

[quincy]

What is the name of your state (only U.S. law)? Arkansas

I worked as an independent contractor over the summer selling Cutco kitchen knives. While doing so I bought some knives for my sales demo kit (at reduced pricing). I now wish to sell them, but I asked my manager and he said that doing so online would be a breach of contract. Here is the pertinent part of my contract:

1. Sales Rep may from time to time personally solicit orders for CUTCO consumer products through various marketing methods to be determined by Sales Rep on an inhome
basis or otherwise than in a permanent retail establishment. These products are to be sold directly by Sales Rep and shall not be advertised or sold through
electronic media, or on the internet, unless agreed to in writing by the Company. Sales Rep agrees to turn in all orders to the Company within a reasonable amount of
time, not to exceed one week. Upon approval from his/her manager, the Sales Rep shall be authorized to conduct on-line presentations for the purposes of soliciting
CUTCO orders. This authorization does not include the sale of CUTCO through shopping websites and/or online auctions, including but not limited to E-Bay, Amazon or
others.

To me, this seems to only refer to sales I make on behalf of the company, not of knives I personally own. Would selling my knives online be a breach of contract?

Get permission in writing from the company.

 

[adjusterjack]

To me, this seems to only refer to sales I make on behalf of the company, not of knives I personally own. Would selling my knives online be a breach of contract?

I don't see anything in there that applies to knives that you bought for personal use and own.

You do what you want, but if it was me, I wouldn't be asking for permission, I'd just sell them.

 

[quincy]

I don't see anything in there that applies to knives that you bought for personal use and own.

You do what you want, but if it was me, I wouldn't be asking for permission, I'd just sell them.

There could be an issue with buying the product as a sample at a discount and then selling these discounted products online.

QuestionAsker2 should not "just sell them" without a personal review of the contract in its entirety and/or a desire to lose his job. QuestionAsker2 was already told by his manager that selling the products online was not permitted.

 

[adjusterjack]

QuestionAsker2 should not "just sell them" without a personal review of the contract in its entirety and/or a desire to lose his job.

OP wrote that he "worked for" the company. Past tense. Not "works for."

But, yes, if he actually still "works for" the company, I agree that he should tread carefully.

 

[quincy]

OP wrote that he "worked for" the company. Past tense. Not "works for."

But, yes, if he actually still "works for" the company, I agree that he should tread carefully.

Clarification from QuestionAsker2 might be nice.

He implies he is still under contract with the company and he also says he asked his manager about selling online the products he owns and was told he couldn't.

If he no longer works for the company, and there is nothing in the contract that binds him to its terms after he leaves the company, there is no contract to breach. Not only does his current position with the company need to be known, the contract he signed with the company would have to be read in its entirety.

 

[latigo]

What is the name of your state (only U.S. law)? Arkansas

I worked as an independent contractor over the summer selling Cutco kitchen knives. While doing so I bought some knives for my sales demo kit (at reduced pricing). I now wish to sell them, but I asked my manager and he said that doing so online would be a breach of contract. Here is the pertinent part of my contract:

1. Sales Rep may from time to time personally solicit orders for CUTCO consumer products through various marketing methods to be determined by Sales Rep on an inhome
basis or otherwise than in a permanent retail establishment. These products are to be sold directly by Sales Rep and shall not be advertised or sold through
electronic media, or on the internet, unless agreed to in writing by the Company. Sales Rep agrees to turn in all orders to the Company within a reasonable amount of
time, not to exceed one week. Upon approval from his/her manager, the Sales Rep shall be authorized to conduct on-line presentations for the purposes of soliciting
CUTCO orders. This authorization does not include the sale of CUTCO through shopping websites and/or online auctions, including but not limited to E-Bay, Amazon or
others.

To me, this seems to only refer to sales I make on behalf of the company, not of knives I personally own. Would selling my knives online be a breach of contract?

Of course the knives are you property, but the are also "CUTCO consumer products".

On the other hand such personal sales would not constituted "soliciting Cutco orders" of which the prohibition of the use of "shopping websites" and/or "online auctions" seems to apply.

Personally, I think the company would have much difficult trying to apply the covenants to those products sold directly to you. If it were a major concern, they could have made it a condition to the sale of the demos. Or required that they be returned with full refund.

Seems like a big fuss over a bunch of stupid knives. Geez! When I was a kid working an my grandparent's ranch I remember the family carving knife was cut from an old steel hand saw blade.

 

[quincy]

Of course the knives are you property, but the are also "CUTCO consumer products".

On the other hand such personal sales would not constituted "soliciting Cutco orders" of which the prohibition of the use of "shopping websites" and/or "online auctions" seems to apply.

Personally, I think the company would have much difficult trying to apply the covenants to those products sold directly to you. If it were a major concern, they could have made it a condition to the sale of the demos. Or required that they be returned with full refund.

Seems like a big fuss over a bunch of stupid knives. Geez! When I was a kid working an my grandparent's ranch I remember the family carving knife was cut from an old steel hand saw blade.

It can be a question of how the products were purchased. If a sales rep purchases several of the products at a discounted price (as samples) and then markets these samples online at a price that undercuts the regular sales price, that can be a problem for the company.

Another concern is that QuestionAsker2 already asked his manager about selling the purchased samples online and he was told that he couldn't do it. There could be a clause in the contract that addresses more clearly the prohibition or conditions of sales.

But, even if it is learned that in selling the samples online there is no breach of the contract terms, by going against what his manager told him, he could lose his job.

 

[latigo]

. . . . Another concern is that QuestionAsker2 already asked his manager about selling the purchased samples online and he was told that he couldn't do it. There could be a clause in the contract that addresses more clearly the prohibition or conditions of sales.

But, even if it is learned that in selling the samples online there is no breach of the contract terms, by going against what his manager told him, he could lose his job.

Is all that really necessary?

Can't we give the OP credit for having the common sense of knowing the consequences of "going against his manager" and allowing that he is fully cognizant that right or wrong he's still the manager?

Why must we speculate as to whether the OP has the ability to accurately read his contract and is able to underscore and cite those provisions that relate to his question, which incidentally has nothing to do with job security?

Besides it seems unreasonable for a salesperson interested in continuing to peddle a given manufacturer's products to dump the demos illustrating the products.

 

[quincy]

Is all that really necessary?

Can't we give the OP credit for having the common sense of knowing the consequences of "going against his manager" and allowing that he is fully cognizant that right or wrong he's still the manager?

Why must we speculate as to whether the OP has the ability to accurately read his contract and is able to underscore and cite those provisions that relate to his question, which incidentally has nothing to do with job security?

Besides it seems unreasonable for a salesperson interested in continuing to peddle a given manufacturer's products to dump the demos illustrating the products.

We mustn't speculate on anything.

With the number of posters who come here thinking their jobs are secure if they don't break a law or breach a contract, however, advising these posters that they can lose their jobs is not necessarily a bad thing to point out.

As to selling at a higher price some products purchased at a discounted price for use as samples, this might not be a problem or it could be a problem. Doctors, for one example, are not allowed to legally sell to patients drug samples provided them by drug companies. Often company samples will be labeled not-for-resale.

Because facts will always matter, I do not feel comfortable telling QuestionAsker2 that he can sell the samples online - at least not without knowing more.

 

[latigo]

Because facts will always matter, I do not feel comfortable telling QuestionAsker2 that he can sell the samples online - at least not without knowing more.

Not comfortable?

With all due respect that comes off as a novel attitude and calls for an explanation of how you can feel comfortable offering any help to the users of this website. (Must we first walk in their shoes or what?)

In this instance it seems a convenient alternative to conceding that you are selling the OP short as inferring he is unable to read, understand and cite significant language in his agreement with the manufacturer/supplier.

A more purposeful and less awkward alternative would have been to offer your opinion on the facts as presented. (Sound familiar?)

 

[quincy]

Not comfortable?

With all due respect that comes off as a novel attitude and calls for an explanation of how you can feel comfortable offering any help to the users of this website. (Must we first walk in their shoes or what?)

In this instance it seems a convenient alternative to conceding that you are selling the OP short as inferring he is unable to read, understand and cite significant language in his agreement with the manufacturer/supplier.

A more purposeful and less awkward alternative would have been to offer your opinion on the facts as presented. (Sound familiar?)

No, we mustn't first walk in a poster's shoes. I am a bit fussy when it comes to footwear.

But I do not feel comfortable providing a course of action when to do so could create additional problems for a poster. Selling the products online without prior permission could create additional problems for QuestionAsker2 (e.g., breach of contract suit, loss of job) - hence the advice offered in my first post.

 

[PayrollHRGuy]

Assuming the knife selling OP want to continue to sell knives for the same company I strongly suggest he NOT sell them online. My wife at one point was selling a product on the side and she decided to sell some of the product that she had purchased for her personal use on eBay. She received a very firm letter from the company telling her that she had violated their agreement renline selling that had wording much the same as the OP's.

I have no idea if it would stand up in court but it doesn't have to for them to discontinue an IC from selling their product.

 

[quincy]

Assuming the knife selling OP want to continue to sell knives for the same company I strongly suggest he NOT sell them online. My wife at one point was selling a product on the side and she decided to sell some of the product that she had purchased for her personal use on eBay. She received a very firm letter from the company telling her that she had violated their agreement renline selling that had wording much the same as the OP's.

I have no idea if it would stand up in court but it doesn't have to for them to discontinue an IC from selling their product.

I agree that, if QuestionAsker2 wants to sell products online, he needs to get an okay from his employer first. That is the best way for him to avoid problems.