The latest version was saved by David Blanco Giró on 2007-08-09 16:58:44
Between XXXXXXXXXX -hereinafter referred to as „The Company“- and XXXXXXXXX, -hereinafter referred to as “Service Provider”-. The Company and the Service Provider being the -“Parties”- hereto.
Whereas the Service Provider has a brought knowledge of the XXXX Market and it’s players and decision makers and
Whereas The Company is willing to enter this market whit it’s products and services
Now, therefore the parties agree as follows:
The Service Provider intends to co-operate with The Company on a non exclusive basis according to the terms of this Agreement with a view to The Company being awarded the projects (hereinafter referred to as the ”Projects” or individually as the ”Project”) in various countries as specified in Annex 1 of this Agreement, including such amendments and additions thereto which may from time to time be agreed upon,. The Company and the Service Provider enter into this Agreement and agree as follows:
1. Scope of Activities
1.1The Service Provider shall assist The Company to obtain and fulfil contracts for the Projects.
1.2The Service Provider shall in close co-ordination with The Company undertake through its Consulting Services to promote The Company’s interests with respect to the Projects.
1.3In particular, the Service Provider shall use its best efforts to support The Company by:
Provide The Company with information and trends regarding primarily the XXXXXXXXX Market
By legal support
1.4The Service Provider shall not assume obligations in the name of or on account of The Company and shall not make any representations or warranties on behalf of The Company, except as expressly authorised by The Company in writing.
1.5The Service Provider shall be deemed at all times to be an independent contractor and nothing contained herein shall be deemed to create the relationship of employer and employee, partnership or joint venture between the Service Provider and The Company.
1.6The Service Provider shall, in an appropriate manner, co-operate with The Company’ local representative with respect to the Projects.
1.7The expression ”Project” means the supply of products and services regardless of its technical content (including but not limited to anyconsulting, hardware, data/voice transmission systems, software, know-how, etc.) to the Customer(s) placing orders with The Company:
(i) directly by The Company, and/or of its departments, branches, offices or sub-offices;
(ii) indirectly by it´s subsidiaries, subcontractor, consortium partners.
pursuant to the terms of the Supply Agreement or Project Agreement to be concluded between any of the parties named in (i) or (ii) above and the Customer(s) in the specified countries.
1.8The Service Provider shall have successfully performed its obligations and therefore attained its targets, if a Supply Agreement(s) or a Project Agreements(s) becomes effective and if The Company (i and/or ii of Article 1.7) has effectively commenced delivery or services, whichever occurs later. If not specified otherwise, it is understood that for the purpose of the calculation of the Compensation according to Article 2 the value of the afore mentioned Agreement(s) or deliveries and services shall be the sum of all it´s elements but excluding any, taxes, duties or other levies should these be written into said Agreement(s).
1.9The Company shall issue Service Provider without delay with sufficient evidence in respect of every event entitling Service Provider to issue an invoice.
2.1Upon attainment by Service Provider of its targets according to Article 1.8, The Company shall pay to Service Provider a Compensation of 10 percent of each contract/order/delivery value(s) received / delivery commenced, whatever applies, according to Article 1.8 above, during the period according to Article 3, excluding VAT, fright, taxes and duties.
2.2All efforts and expenditures incurred by Service Provider in connection with this Agreement shall be deemed to have been compensated by the full and final payment of said Compensation if not otherwise expressively agreed.
2.3Payments of the Compensation as defined in Art 2.1 are due within 30 days of The Company having received it´s payment from the Customer and the respective invoice from the Service Provider
2.4Payments to be made by The Company in favour of the Service Provider shall be made to the bank and account number to be specified by the Service Provider. All obligations of The Company under this Agreement shall be deemed fulfilled at the moment all payments due have been received by said bank.
2.5If the Service Provider is obliged by law to charge VAT, The Company shall pay such amounts in addition to the Compensation.
3. Period of Validity and Termination
3.1 This Agreement shall become effective as of the date it is executed by the Parties.
3.2 This Agreement shall terminate automatically on XXXXXX if not previously extended by mutual agreement between the Parties. However the compensation mechanism is valid for all contracts/orders signed or delivered according to Article 1.8 on or before XXXXXXXX.
3.3 Notwithstanding the provisions of Art 3.1 and 3.2, each Party is entitled to terminate this Agreement before the above expiery date by written notice within 30 days of the date such a Party becomes aware of the existence of an important reason for terminating the Agreement.
The terminating Party shall identify such important reason.
In the event that the matter is remedied within 30 days of notification having been received by the other Party, termination shall not be permitted.
Important reason for the purposes of Art 3.3 means :
3.3.1the other Party materially breaches this Agreement so that adherence to this Agreement cannot reasonably be expected or
3.3.2 a petition is filed against the other Party and an order is made by the relevant court declaring said Party insolvent or bankrupt under the provisions of the laws of insolvency or bankruptcy;
3.3.3 the Service Provider violates the provisions of Art 4
3.3.4 the Service Provider or The Company´s legal or ownership status or management changes substantially
3.3.5 The Company is not longer interested to follow a specific project
3.3.6 The Service Provider is unable to fulfil the agreement for more than 3 months
3.4Notice of termination shall be given by registered letter. If transmittal by registered letter is not possible, any other form of transmittal shall be deemed sufficient.
3.5Termination of this Agreement shall not affect or prejudice the right of the Service Provider to full Compensation (Article 2) with respect to the targets achieved (Article 1.8) prior to such termination and the same shall continue to be paid by The Company in accordance with the stipulations of this Agreement.
3.6If the Agreement is terminated for reasons entirely attributable to The Company, all supplies and services rendered by The Company or agreements concluded between The Company an the relevant customer(s) thereafter and resulting from targets achieved (Article 1.8) prior to the termination date shall form an integral part of the Service Provider's entitlement to full Compensation (Article 2). However, any such right to Compensation shall end upon the definitions according to Article 3.2.
During the term of this Agreement, the Service Provider shall not promote the interests of Competitors of The Company with respect to the Projects and shall not act as intermediary for or distribute competing products relating to the Projects.
The Parties shall not disclose without prior approval in writing by the other party to third parties any technical or marketing information (e. g. drawings or specifications) or information of a confidential nature which it may acquire in the course of its co-operation or any information regarding any content of this agreement, and shall also prevent the aforementioned information from being disclosed to or used by unauthorised parties. Third Party is any Party not signed this agreement. The working together between The Company and named members of the Service Provider’s group shall not construe a breach of this Article 5. However, any exchange of any information of any content of this agreement shall be excluded. The terms of this provision shall survive the termination of this Agreement.
In the event of a dispute between the PARTIES arising out of this AGREEMENT, the PARTIES shall first endeavour to reach an amicable settlement.
If the PARTIES fail to reach such a settlement within two month of the occurrence of the dispute, all disputes arising out of this contract or related to its violation, termination or nullity shall be finally settled under the Rules of Arbitration and of the International Chamber of Commerce, Zurich ,by 3 (three) arbitrators to be appointed in accordance with these rules unless the PARTIES agree on the name of a sole arbitrator.
The arbitration shall take place in Zurich, Switzerland. The language to be used in thearbitral proceedings shall be English. The substantive law of this place shall apply wherethe Rules are silent.
The arbitral award shall be final and binding on the PARTIES and shall be substantiated in writing. The arbitral tribunal shall also decide in writing on the matter of costs of arbitration.
The contractual relations between the Parties shall be governed by the provisions of this Agreement and all other agreements and annexes regarding its performance, and otherwise in accordance with the substantive law in force in the Federal Republic of Germany, excluding the provision regulating commercial agents and the applications of the United Nations Convention on Contracts for the International sale of Goods of April, 1980.
Should individual provisions of this Agreement be legally void or unfeasible, the validity of the remaining Agreement shall not be affected thereby. In such a case the Parties shall by mutual agreement substitute for the provisions concerned with a valid provision considered substantially equivalent in economic terms.
All notices either required or desired to be served upon the other Party pursuant to the terms of this Agreement shall be in writing and shall be delivered to the following addresses:
to the Service Provider:
to The Company:
The Company shall remit all amounts due to the bank account specified in the respective invoices of the Service Provider.
Modifications of or amendments to this Agreement shall be valid only when made in writing and mutually agreed upon by the Parties.
12. OECD Confirmation and Compliance with the Law
The Service Provider confirms that neither the company nor any of its employees are public servants according to the definitions as stated in the OECD guideline for Public Management Policy. The Service Provider shall strictly comply with all laws and regulations applicable to the Service Provider and concerning the performance of its activities.Without limitation, the Service Provider agrees to abide by the stipulations of the OECD Convention on Combating Bribery of Foreign Public Officials.