This Agreement is made on the ........... day of ....................... 2013 by and between:
...................., a Malaysian business entity duly registered under the Registration of Businesses Act, 1956 and presently having its principal place of business at ................. (hereinafter called "XXX") on one part, and
..................... (and its affiliates, subsidiaries etc.), duly organized and existing under the laws of Scotland and having its address at ................................... (hereinafter called "YYY") of the other part.
Whereas:
1 YYY wishes to appoint a local consultant for the South East Asian countries which include Malaysia, Indonesia, Singapore, Brunei, Thailand, Vietnam, Laos, Myanmar and the Philippines (hereinafter referred to as the "Territory") for the products and or services as hereinafter defined in Clause 1.1.
2 XXX is operating a business in the Territory with extensive experience within the Territory and is qualified to act as consultant in accordance with the laws and regulations of the Territory and is willing to be the consultant of YYY for the Territory upon and subject to the terms and conditions of this Agreement.
NOW it is hereby agreed as follows :
1.0 Parties’ Agreement
1.1 YYY hereby appoints XXX to be its consultant exclusively for the Territory and XXX agrees to act as the consultant of YYY for the provision and/or supply of products and/or services, namely:
1.1.1 .................;
1.1.2 .................; and
1.1.3 ........................
(hereinafter collectively referred to as “Products and Services”) to be provided by YYY for the period of this Agreement upon the terms and subject to the conditions covenants and representations as hereinafter set forth.
1.2 YYY hereby represents and warrants to XXX as from the date hereof (which representations and warranties shall survive the execution, delivery and completion of this Agreement) that it possesses all rights, licenses and authorizations in connection with the aforesaid Products and Services and has the full power and authority to enter into this Agreement and to incur the obligations as hereby contemplated, and to carry out the provisions of this Agreement.
1.3 If in the event of XXX being held liable for any amount in respect of any claim(s) from whatsoever source(s) against YYY, whether connected with YYY's Products and Services or its indebtedness or for infringement of or failure to observe any law, rule and regulation or otherwise however,YYY shall, unless the same shall have arisen as a result of any act, omission or fault on the part of XXX, pay or become liable to pay in settlement of such claim(s) as aforesaid including the cost, charges and expenses incurred in connection therewith.
2.0 Consideration
2.1 As consideration for XXX’ services for the provision and/or supply of the aforesaid Products and Services in the Territory,YYY agrees to pay to XXX as follows:
2.1.1 A monthly retainer of US$ .......... to be paid irrespective of sales in the Territory (hereinafter referred to as “monthly retainer”), and
2.1.2 a commission, subject to any increase or decrease in the amount or percentage as agreed in advance between the parties hereto including any amendment or variation thereto, in relation to every contract or order awarded to YYY so procured by XXX during the continuance of this Agreement. For this purpose, the said commission is based on net revenues, that is to say after deduction of local taxes, agency fees and other commissions, and mobilization/demobilization costs and charges.
“This commission shall be calculated to provide an annual ‘On Target Earnings’ figure comprising of both the monthly retainer and the commission component of a total of US$ ....................... initially but will allow for ‘over target’ earnings with no upper limit. The annual targets will be achievable and agreed by the end of each calendar year.” *(Require redefinition)
2.2 In addition to the commission payable to XXX as hereinabove provided, XXX shall be entitled to reimbursement for certain out-of-pocket expenses supported by appropriate receipts for such items as the cost of tender documents, travel expenses, visa, permits, official registration of YYY and its Products and Services with local authorities and or body corporate and any renewal thereof. XXX shall periodically submit a list of applicable charges for approval in writing by YYY prior to commitment of any expenses.
2.3 YYY shall, within thirty (30) days after the actual receipt by it of any payment whatsoever under any such contract as is required to in clause 3 hereof, pay to XXX on account of its commission such percentage of the amount so received as corresponding to the total commission amount or percentage applicable to the contract concerned.
2.4 Both parties shall have the the right to audit each other’s accounting records regarding transactions related to this Agreement. Each party must give each other thirty (30) days’ written notice before accessing the aforementioned accounting records.
3.0 XXX’ Obligations
3.1 XXX shall, at all times during the period of this Agreement, use its best endeavors:
3.1.1 To promote, and publicize whenever appropriate, YYY Products and Services in the Territory;
3.1.2 To provide YYY with full information concerning all projects, venture and other opportunities in which any of its Products and Services may be utilized;
3.1.3 To assist YYY in contract, negotiations and resolution of disputes, if any, as required;
3.1.4 To advise and assist YYY in dealing with government ministries, departments, municipalities and other offices and agencies thereof or allied thereto;
3.1.5 To arrange, procure and maintain contacts with potential customers of YYY in the Territory;
3.1.6 To take steps as may be reasonable and necessary to assist YYY satisfactorily to effect and perform contracts and agreements in the public and private sector in the Territory;
3.1.7 To assist YYY by sponsoring at YYY’s cost the employees, servants and consultants of YYY working in or visiting the Territory for all necessary visas, permits and licenses which may be required;
3.1.8 To provide YYY with all such services as YYY’s consultant in the Territory is accustomed to provide.
3.2 XXX shall assist YYY in obtaining legal advice as to all government taxes and charges whether Federal, Municipal or local and all other duties including customs duty which may be levied upon it in the Territory prior to submission of YYY's offer on any tender and such costs will be payable by YYY.
3.3 XXX shall be solely responsible for, and hold harmless, indemnify and defend YYY from and against XXX’ own civil, labour, and social security obligations arising from its commercial activity in any of the Territory.
3.4 XXX shall not, without the express written authority of YYY to do so in each case, hold itself out as having authority to accept orders on behalf of YYY or create any binding obligations on YYY or otherwise, commit YYY in any way.
4.0 Compliance With Laws
4.1 XXX shall, and shall procure persons associated with it or other persons who are performing services in connection with this Agreement:
4.1.1 To comply with all applicable laws and regulations relating to anti-bribery and anti-corruption (“Relevant Requirements”) including, without limitation, the UK Bribery Act 2010;
4.1.2 To promptly report to YYY any request or demand for any undue financial or other advantage of any kind received by XXX or persons associated with it in connection with the performance of this Agreement; and
4.1.3 To have and maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the UK Bribery Act 2010, to ensure compliance with the Relevant Requirements and the Policy and enforce them where appropriate.
4.2 In performing its obligations under this Agreement, XXX warrants and represents that it shall not give any money or anything of value, directly or indirectly, through one or more intermediates or otherwise, to any official employee, government or any agency or subdivision thereof or any other employee of any business associate of YYY, for the purpose of influencing any official act or decision of such official or employee or for the purpose of inducing such official or employee to use his influence to affect any act or decision of such government or business associate, to obtain, retain business or direct business to YYY or any business associate of YYY.
4.3 XXX further warrants and represents that it will notify YYY (in writing) if any official employee or any employee of any business associate of YYY suggest or propose to undertake any action (or omission) inconsistent with the business conduct of XXX described in clause 3 above.
5.0 Confidentiality
5.1 In connection with the business relationship postulated by this Agreement, each party may receive or have access to commercially valuable technical and non-technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including source code and documentation for trade secrets, know how, customer lists, pricing strategies, marketing and business plans, information concerning a party’s vendors, and such party’s contemplated plans, strategies and prospects (hereinafter referred to as "Confidential Information").
5.2 Each party hereby acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed without the prior written consent of the other party except as may be necessary to perform the obligations required under this Agreement or as may be required by law. This provision shall continue to be binding on the parties after the expiration of this Agreement.
5.3 If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party’s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible.
5.4 Any breach of the obligations under this clause by any of the parties hereto shall be regarded as a material breach of the Agreement and upon which the damaged party may terminate same with no further obligations.
6.0 Independent Contractor
6.1 The relationship of the parties established by this Agreement is that of independent contractors, and neither party is an employee, partner or joint venture party of the other.
6.2 It is hereby agreed that neither party shall be liable to be involved or implicated in the day-to-day running of business, financial or otherwise, of the other.
7.0 Duration
7.1 Without prejudice to the termination provision hereinafter contained, this Agreement shall be for a period of three (3) years from the date hereof and shall continue thereafter unless and until terminated by either party giving to the other not less than ninety (90) days written notice thereof expiring on or any time after the anniversary of the date thereof. In the case that any of YYY’s employees or employee family members has resident visa registered with XXX, XXX shall have no objections to transfer the said resident visas to the new consultant or entity.
7.2 If in the event YYY is awarded any contracts within the valid time frame of this Agreement, then the Agreement shall be extended and countable for that specific customer until the expiry of that contract.
7.3 If in the event YYy is being bought over either partly or wholly by another entity, XXX is entitled to keep the full rights given to him by this Agreement. Accordingly, this Agreement would abide the new principal in fulfilling the duties of YYY.
8.0 Termination of Agreement
8.1 Notwithstanding the provisions of clause 8 hereof, this Agreement may be terminated by XXX or YYY, in the event of any material breach of the terms and conditions of this Agreement and the party in breach fails to rectify same within thirty (30) days after receiving a written notice of the existence of the breach from the party not in breach.
8.2 YYY shall have the right to terminate this Agreement with thirty (30) days’ notice in the event of any conflict of interest relating to the Products and Services.
8.3 If, at the time of expiry and/or termination, there are any outstanding amounts between the parties, the parties shall be bound to settle these amounts even though the Agreement as such is no longer in force. Both parties further agree that if the Agreement is terminated on account of any reason enumerated in this Agreement,YYY agrees to pay to XXX all amounts due and payable in the terms of this Agreement including but not limited to payments in respect of all contracts awarded until the date of termination and contracts that are awarded within 120 days from date of termination where the bids/proposals had been submitted prior to the date of termination.
9.0 Goverming Laws
10.1 This Agreement shall be construed and governed in all respects in accordance with the laws for the time being in force in Scotland and the parties hereto hereby agree to submit to the jurisdiction of the courts of that country.
10.0 Notices
10.1 Any notices from one party to the other shall be given by hand delivery, mail or fax transmission to the following addresses :
If to XXX XXX Consult:
................
Email:
Fax No:
If to YYY
YYY Limited:
................
Email:
Fax No:
11.0 Entire Agreement
11.1 This Agreement may not be changed or modified, or any provision waived, except by an agreement in writing, signed by the parties hereto.
11.2 Neither party shall have the right to assign this Agreement and/or to assign, license or otherwise transfer any or all of its rights, powers, privileges and obligations hereunder to any third party without the written consent of the other party.
IN WITNESS WHEREOF, the parties hereto acknowledge their approval and understanding of the terms and condition of the Agreement the parties hereto have executed this Agreement as of the day and year first above written.
Signed by:
for and on behalf of XXX Consult
----------------------------
NAME Signed by:
for and on behalf of BellGeospace Ltd
-------------------------------
NAME
...................., a Malaysian business entity duly registered under the Registration of Businesses Act, 1956 and presently having its principal place of business at ................. (hereinafter called "XXX") on one part, and
..................... (and its affiliates, subsidiaries etc.), duly organized and existing under the laws of Scotland and having its address at ................................... (hereinafter called "YYY") of the other part.
Whereas:
1 YYY wishes to appoint a local consultant for the South East Asian countries which include Malaysia, Indonesia, Singapore, Brunei, Thailand, Vietnam, Laos, Myanmar and the Philippines (hereinafter referred to as the "Territory") for the products and or services as hereinafter defined in Clause 1.1.
2 XXX is operating a business in the Territory with extensive experience within the Territory and is qualified to act as consultant in accordance with the laws and regulations of the Territory and is willing to be the consultant of YYY for the Territory upon and subject to the terms and conditions of this Agreement.
NOW it is hereby agreed as follows :
1.0 Parties’ Agreement
1.1 YYY hereby appoints XXX to be its consultant exclusively for the Territory and XXX agrees to act as the consultant of YYY for the provision and/or supply of products and/or services, namely:
1.1.1 .................;
1.1.2 .................; and
1.1.3 ........................
(hereinafter collectively referred to as “Products and Services”) to be provided by YYY for the period of this Agreement upon the terms and subject to the conditions covenants and representations as hereinafter set forth.
1.2 YYY hereby represents and warrants to XXX as from the date hereof (which representations and warranties shall survive the execution, delivery and completion of this Agreement) that it possesses all rights, licenses and authorizations in connection with the aforesaid Products and Services and has the full power and authority to enter into this Agreement and to incur the obligations as hereby contemplated, and to carry out the provisions of this Agreement.
1.3 If in the event of XXX being held liable for any amount in respect of any claim(s) from whatsoever source(s) against YYY, whether connected with YYY's Products and Services or its indebtedness or for infringement of or failure to observe any law, rule and regulation or otherwise however,YYY shall, unless the same shall have arisen as a result of any act, omission or fault on the part of XXX, pay or become liable to pay in settlement of such claim(s) as aforesaid including the cost, charges and expenses incurred in connection therewith.
2.0 Consideration
2.1 As consideration for XXX’ services for the provision and/or supply of the aforesaid Products and Services in the Territory,YYY agrees to pay to XXX as follows:
2.1.1 A monthly retainer of US$ .......... to be paid irrespective of sales in the Territory (hereinafter referred to as “monthly retainer”), and
2.1.2 a commission, subject to any increase or decrease in the amount or percentage as agreed in advance between the parties hereto including any amendment or variation thereto, in relation to every contract or order awarded to YYY so procured by XXX during the continuance of this Agreement. For this purpose, the said commission is based on net revenues, that is to say after deduction of local taxes, agency fees and other commissions, and mobilization/demobilization costs and charges.
“This commission shall be calculated to provide an annual ‘On Target Earnings’ figure comprising of both the monthly retainer and the commission component of a total of US$ ....................... initially but will allow for ‘over target’ earnings with no upper limit. The annual targets will be achievable and agreed by the end of each calendar year.” *(Require redefinition)
2.2 In addition to the commission payable to XXX as hereinabove provided, XXX shall be entitled to reimbursement for certain out-of-pocket expenses supported by appropriate receipts for such items as the cost of tender documents, travel expenses, visa, permits, official registration of YYY and its Products and Services with local authorities and or body corporate and any renewal thereof. XXX shall periodically submit a list of applicable charges for approval in writing by YYY prior to commitment of any expenses.
2.3 YYY shall, within thirty (30) days after the actual receipt by it of any payment whatsoever under any such contract as is required to in clause 3 hereof, pay to XXX on account of its commission such percentage of the amount so received as corresponding to the total commission amount or percentage applicable to the contract concerned.
2.4 Both parties shall have the the right to audit each other’s accounting records regarding transactions related to this Agreement. Each party must give each other thirty (30) days’ written notice before accessing the aforementioned accounting records.
3.0 XXX’ Obligations
3.1 XXX shall, at all times during the period of this Agreement, use its best endeavors:
3.1.1 To promote, and publicize whenever appropriate, YYY Products and Services in the Territory;
3.1.2 To provide YYY with full information concerning all projects, venture and other opportunities in which any of its Products and Services may be utilized;
3.1.3 To assist YYY in contract, negotiations and resolution of disputes, if any, as required;
3.1.4 To advise and assist YYY in dealing with government ministries, departments, municipalities and other offices and agencies thereof or allied thereto;
3.1.5 To arrange, procure and maintain contacts with potential customers of YYY in the Territory;
3.1.6 To take steps as may be reasonable and necessary to assist YYY satisfactorily to effect and perform contracts and agreements in the public and private sector in the Territory;
3.1.7 To assist YYY by sponsoring at YYY’s cost the employees, servants and consultants of YYY working in or visiting the Territory for all necessary visas, permits and licenses which may be required;
3.1.8 To provide YYY with all such services as YYY’s consultant in the Territory is accustomed to provide.
3.2 XXX shall assist YYY in obtaining legal advice as to all government taxes and charges whether Federal, Municipal or local and all other duties including customs duty which may be levied upon it in the Territory prior to submission of YYY's offer on any tender and such costs will be payable by YYY.
3.3 XXX shall be solely responsible for, and hold harmless, indemnify and defend YYY from and against XXX’ own civil, labour, and social security obligations arising from its commercial activity in any of the Territory.
3.4 XXX shall not, without the express written authority of YYY to do so in each case, hold itself out as having authority to accept orders on behalf of YYY or create any binding obligations on YYY or otherwise, commit YYY in any way.
4.0 Compliance With Laws
4.1 XXX shall, and shall procure persons associated with it or other persons who are performing services in connection with this Agreement:
4.1.1 To comply with all applicable laws and regulations relating to anti-bribery and anti-corruption (“Relevant Requirements”) including, without limitation, the UK Bribery Act 2010;
4.1.2 To promptly report to YYY any request or demand for any undue financial or other advantage of any kind received by XXX or persons associated with it in connection with the performance of this Agreement; and
4.1.3 To have and maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the UK Bribery Act 2010, to ensure compliance with the Relevant Requirements and the Policy and enforce them where appropriate.
4.2 In performing its obligations under this Agreement, XXX warrants and represents that it shall not give any money or anything of value, directly or indirectly, through one or more intermediates or otherwise, to any official employee, government or any agency or subdivision thereof or any other employee of any business associate of YYY, for the purpose of influencing any official act or decision of such official or employee or for the purpose of inducing such official or employee to use his influence to affect any act or decision of such government or business associate, to obtain, retain business or direct business to YYY or any business associate of YYY.
4.3 XXX further warrants and represents that it will notify YYY (in writing) if any official employee or any employee of any business associate of YYY suggest or propose to undertake any action (or omission) inconsistent with the business conduct of XXX described in clause 3 above.
5.0 Confidentiality
5.1 In connection with the business relationship postulated by this Agreement, each party may receive or have access to commercially valuable technical and non-technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including source code and documentation for trade secrets, know how, customer lists, pricing strategies, marketing and business plans, information concerning a party’s vendors, and such party’s contemplated plans, strategies and prospects (hereinafter referred to as "Confidential Information").
5.2 Each party hereby acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed without the prior written consent of the other party except as may be necessary to perform the obligations required under this Agreement or as may be required by law. This provision shall continue to be binding on the parties after the expiration of this Agreement.
5.3 If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party’s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible.
5.4 Any breach of the obligations under this clause by any of the parties hereto shall be regarded as a material breach of the Agreement and upon which the damaged party may terminate same with no further obligations.
6.0 Independent Contractor
6.1 The relationship of the parties established by this Agreement is that of independent contractors, and neither party is an employee, partner or joint venture party of the other.
6.2 It is hereby agreed that neither party shall be liable to be involved or implicated in the day-to-day running of business, financial or otherwise, of the other.
7.0 Duration
7.1 Without prejudice to the termination provision hereinafter contained, this Agreement shall be for a period of three (3) years from the date hereof and shall continue thereafter unless and until terminated by either party giving to the other not less than ninety (90) days written notice thereof expiring on or any time after the anniversary of the date thereof. In the case that any of YYY’s employees or employee family members has resident visa registered with XXX, XXX shall have no objections to transfer the said resident visas to the new consultant or entity.
7.2 If in the event YYY is awarded any contracts within the valid time frame of this Agreement, then the Agreement shall be extended and countable for that specific customer until the expiry of that contract.
7.3 If in the event YYy is being bought over either partly or wholly by another entity, XXX is entitled to keep the full rights given to him by this Agreement. Accordingly, this Agreement would abide the new principal in fulfilling the duties of YYY.
8.0 Termination of Agreement
8.1 Notwithstanding the provisions of clause 8 hereof, this Agreement may be terminated by XXX or YYY, in the event of any material breach of the terms and conditions of this Agreement and the party in breach fails to rectify same within thirty (30) days after receiving a written notice of the existence of the breach from the party not in breach.
8.2 YYY shall have the right to terminate this Agreement with thirty (30) days’ notice in the event of any conflict of interest relating to the Products and Services.
8.3 If, at the time of expiry and/or termination, there are any outstanding amounts between the parties, the parties shall be bound to settle these amounts even though the Agreement as such is no longer in force. Both parties further agree that if the Agreement is terminated on account of any reason enumerated in this Agreement,YYY agrees to pay to XXX all amounts due and payable in the terms of this Agreement including but not limited to payments in respect of all contracts awarded until the date of termination and contracts that are awarded within 120 days from date of termination where the bids/proposals had been submitted prior to the date of termination.
9.0 Goverming Laws
10.1 This Agreement shall be construed and governed in all respects in accordance with the laws for the time being in force in Scotland and the parties hereto hereby agree to submit to the jurisdiction of the courts of that country.
10.0 Notices
10.1 Any notices from one party to the other shall be given by hand delivery, mail or fax transmission to the following addresses :
If to XXX XXX Consult:
................
Email:
Fax No:
If to YYY
YYY Limited:
................
Email:
Fax No:
11.0 Entire Agreement
11.1 This Agreement may not be changed or modified, or any provision waived, except by an agreement in writing, signed by the parties hereto.
11.2 Neither party shall have the right to assign this Agreement and/or to assign, license or otherwise transfer any or all of its rights, powers, privileges and obligations hereunder to any third party without the written consent of the other party.
IN WITNESS WHEREOF, the parties hereto acknowledge their approval and understanding of the terms and condition of the Agreement the parties hereto have executed this Agreement as of the day and year first above written.
Signed by:
for and on behalf of XXX Consult
----------------------------
NAME Signed by:
for and on behalf of BellGeospace Ltd
-------------------------------
NAME
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