How to Preapare A Agency Agreement this is farmat of Agency Agreemet , if you have any suggestion on that please feel free to comment
AGENCY AGREEMENT
This Agreement made and entered into at Mumbai, India, this ____ day of April , ____ by and between :
1. PRIME Ltd a Company organized and existing under the laws of India having company number _______-, having its registered office at ADD., India, hereinafter also referred to as “PRIME“, which expression shall, unless incorrect to the context or meaning thereof, mean and include its successors and assigns, of the One Part ; and
2. XYZ, a Partnership Firm having its office at A---------------------------, India, hereinafter also referred to as “XYZ.”, which expression shall, unless incorrect to the context or meaning thereof, mean and include its successors , of the Other Part ;
WHEREAS
1. PRIME is engaged in business of manufacturing and supply of Gold & Silver Jewellery (hereinafter referred to as “the Products” as detailed in Appendix “A” to this Agreement) all over the world, and is desirous of appointing a representative on non exclusive basis with a view to promote sales of its Products in _______________________________ (hereinafter referred to as the Territory”).
2. XYZ is engaged in the business of _______________possesses the necessary technical skills, knowledge and infrastrcuture and is otherwise equipped to render the requisite services to PRIME.
3. XYZ has aproached PRIME expressing its desire to act as the representative of PRIME for promoting the sale of the products in the territory to the customers of PRIME in the territory.
4. PRIME and XYZ have agreed that XYZ will act as the representative of PRIME for assistance in canvassing the sale of the products to the customers in the Territory, on non exclusive basis.
6. The parties hereto have decided to put in writing the terms and conditions governing their relations inter se.
NOW THIS AGREEMENT WITNESSETH AND IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS :
1. PRIME appoint XYZ , and XYZ has agreed to act as Authorised Representative of PRIME in the Territory, on non-exclusive basis (as per agreement it is exclusive basis) , to promote the sale of the products to the customers in the territory on the terms and conditions contained hereinafter. However, the arrangement made by this Agreement would not confer any right or authority to XYZ to negotiate, conclude or sign any contract on behalf of PRIME or in any manner bind XYZ.
2. PRIME shall, during the term of this Agreement :
a) make available to XYZ any new prospects and details of sales plans and objectives with respect to the products for the customers in the Territory & will also keep XYZ advised on updates in these areas ;
b) furnish XYZ with any information necessary for the performance of his obligations under this Agreement ;
c) notify XYZ , within 15 days, of the acceptance or rejection of any transaction with a customer notified by XYZ . Additionally, PRIME will promptly provide XYZ with details on the performance, partial performance or failure of performance of a transaction ;
d) support the efforts of XYZ by furnishing reasonable quantity of printed commercial and technical data and information and other publications which PRIME may have available from time to time ;
e) supply the products related to orders received and accepted by PRIME from customers in the Territory ;
f) indemnify XYZ against all claims arising out of the sale of products except those claims arising out of negligence or willful default of XYZ ;
g) reserves the right to sell the products directly to customers, from time to time, in the territory, and shall keep XYZ informed of any direct sales carried out.
3. Further, PRIME shall transmit to XYZ , immediately, and without delay, any complaint or request received from the customers within the Territory so as to enable XYZ to attend to and service the customers promptly and efficiently ;
4. XYZ shall during the term of this agreement :
a) build-up an adequate sales promotion organization to assist PRIME in promoting the sale of the products to the customers in the territory ;
b) keep in constant contact with the present and potential customers (“the customers”) of the products within the territory ;
c) keep PRIME fully informed of governmental, commercial and industrial activities and plans which do or could affect the sale of Products to the Customers in the Territory ;
d) transmit proposals and technical data to the Customers in the Territory, interpret the Customers inquiries, requirements and attitude and assist in contract negotiations. No proposal shall be transmitted to the Customers unless the terms and conditions of the proposal have been approved by PRIME ;
e) forward immediately to PRIME any inquiries/orders obtained, along with all technical, commercial and financial information necessary to enable PRIME to evaluate them and execute them correctly ;
f) perform such liaison services with the Customers in the Territory as PRIME may from time to time direct in connection with any order awarded to PRIME for the supply of Products including assistance and resolution of any claims or complaints of such customers arising out of PRIME performance of such orders ;
g) advertise the products in trade publications in the Territory as may be agreed to by PRIME;
h) prepare and send a report on a regular basis to PRIME, containing details of sales visits, inquiries, projected sales and strategy, and describing the market situation, actions of local and foreign competitors and generally any other information that may be related to PRIME’s sales within the territory ;
i) recommend improvements to sales plans, assist in developing strategy and clarify the product requirements of the Customers in the Territory.
j) inform PRIME of any suspected unfair trade practices, infringement of PRIME’s industrial or intellectual property rights or any other activities within the territory contrary to Elements Six’s interests.
k) assist PRIME in collecting outstanding debts owed by customers in the territory to PRIME;
l) appoint sub-agents and representatives for the purpose of promoting the sale of products in the territory subject to the prior written consent of PRIME;
m) obtain all necessary license, permits and approvals for promotion of sale of products in the Territory and for the performance of its duties hereunder;
n) comply with all applicable laws and regulations relating to the promotion of sale of products in the territory.
o) attend and participate in such meetings, discussions, exhibitions and conferences, as PRIME may request, on its behalf.
5. XYZ while promoting the sale of the products of PRIME shall :
a) disclose all the terms and conditions as specified in Appendix B ,which may be amended by PRIME from time to time by notice in writing which shall be brought to the notice of the customers from time to time;
b) offer credit terms after obtaining prior approval of PRIME;
c) follow all the instructions of Element Sic, whether written or oral, in all commercial matters relating to the promotion of sale of the products;
d) prohibited from making or giving any promises, warranties, guarantees or representations concerning the products save those contained in PRIME terms and conditions of sale, or as specifically advised by PRIME in writing;
e) quote the prices for procuring of orders at the rates specified by PRIME from time to time.
6. XYZ and its legal representatives and employees shall have no authority to accept orders on behalf of PRIME from customers in the territory, nor shall XYZ have any authority to conclude or otherwise finalize or sign any contract with any customer in the territory on behalf of PRIME, nor shall it have any authority to bind PRIME in any manner whatsoever. It is specifically agreed and recorded herein that orders shall become definitive, concluded and binding only after written acceptance by PRIME, and the customers of the products within the territory will be bound directly by, and shall make all payments directly to, PRIME; and XYZ will have to draw the attention of the customers to this fact and to PRIME’s general sales condition.
7. All Contracts between PRIME and its customers in the territory shall be on a principal to principal basis, and XYZ shall have no liability whatsoever arising out of any disputes or claims between PRIME and its customers nor shall XYZ have any authority to settle disputes or claims.
8. XYZ undertakes to restrict its canvassing activities to the territory, and agrees not to seek the canvassing of the products outside the territory, unless specifically requested by PRIME.
9. PRIME shall diligently perform the services of the quality expected of an experienced corporation and in keeping with the high standards of quality maintained by PRIME, and would not do or cause to be done anything which would harm or damage the reputation and goodwill of PRIME.
10. XYZ agrees to diligently perform the assistance contemplated by this Agreement in a manner consistent with the care and attention that is normally expected of an experienced corporation with respect to similar activities.
11. Compensation
a) As Compensation to XYZ for services rendered under this Agreement, PRIME shall pay a fees as set out in Appendix C .Fees would be based on the nest sales income received by PRIME and shall be paid in U.S. Dollars monthly. The fees set out in Appendix C may be varied by mutual agreement of the parties hereto from time to time.
b) XYZ shall also charge Service Tax and such other levies as may be applicable in accordance with the state and central laws.
c) XYZ shall also be entitled to receive performance based incentive as indicated in Appendix C.
d) PRIME shall make advance payments of fees to XYZ to finance XYZ ’s working capital requirements based on the annual budget formally agreed amongst the parties. Diabrasive shall keep PRIME informed in advance of any material factors which may affect its costs from year to year Before the last day of the month following the end of each calendar quarter, XYZ shall issue an invoice for the fees due for that quarter.
e) XYZ agrees to permit PRIME and its auditors access to XYZ ’s accounting records at all times to satisfy queries concerning the nature and quantification of the operating cost.
12. Confidentiality
XYZ shall not during the terms of this agreement not at any time thereafter disclose or use without the written consent of PRIME any Confidential Information made available to it during the term of this Agreement. This undertaking shall not apply to such information as XYZ can show:
i) was at the time of such disclosure or use published or generally available to the public;
ii) has after receipt become published or become generally available to the public, otherwise tha through any unlawful act or omission on the part of XYZ;
iii) was in its possession at the time of receipt and was not acquired directly or indirectly from PRIME or other companies within the PRIME group;
iv) was rightfully acquired from another who did not obtain it under pledge of secrecy or confidentiality to PRIME or other companies with the PRIME group; or
v) was acquired by XYZ other than pursuant to this Agreement and not in violation of any of its provisions applicable to XYZ.
Upon termination of this Agreement all confidential information in the possession of XYZ shall be immediately returned to PRIME.
13 Intellectual Property
13.1 XYZ may describe itself as an “Authorised Representative for PRIME”. XYZ may during the terms of this agreement use the “PRIME-advancing diamonds” logo on its business letterhead, business cards and business documents in conjunction with its own description provided always that example of proposed use has been submitted for approval to Shannon and that it has been so approved.
13.2 Except as is specifically provided in clause 13.1 above, nothing in this agreement shall give XYZ any rights in respect of PRIME`s Intellectual Property, including any trade names or tarde marks used by the PRIME Group in relation to the Products or any of them or of the goodwill associated therewith and XYZ hereby acknowledges that all such rights and goodwill remain vested in the Elements Six Group.
13.3 XYZ shall not during the term of this Agreement or at any time thereafter, use any trade marks or trade names so resembling the trade marks or trade name of PRIME as to be likely to cause confusion or deception.
13.4 XYZ shall promptly and fully notify PRIME of any actual, threatened or suspected infringement in the Territory of any Intelelctual Property which comes to the XYZ notice.
14. This Agreement shall be effective from 1st April, 2005 and unless terminated earlier by mutual agreement or in accordance with the provisions of this clause, shall continue to remain in force till 31st December 2007. The duration of this agreement may however be extended for further periods by mutual agreement of the parties.
15. XYZ shall obtain from all its employees a confidentiality letter, or ensure a clause in the employment contract, binding its employees to maintain in confidence and refrain from divulging all business and technical information which becomes available to them in connection with this Agreement and which is of a confidential or proprietary nature relating to PRIME or its affiliates, the products or services, the customers, or the financial condition, business prospects of any of the foregoing , without the prior consent of PRIME to any person, firm, corporation or entity for any reason, purpose whatsoever.
16. This agreement may be terminated for reasons including but not limited to the following :
i) By mutual written consent of the parties ; or
ii) By either party at will with or without cost on the expiry of the term of this agreement or any subsequent extensions of this agreement with a six months prior written notice of termination; or
iii) If either party commits any breach of this agreement and has failed to remedy it within thirty days; or
iv) If a liquidator or receiver is appointed over any of the property or assets of the other party; or
v) if XYZ makes any voluntary arrangement with its creditors or become subject to an administration order;
vi) any changes in the management or ownership of XYZ, in particular, if Sanjay Maliah ceases to be a partner thereof or if partnership is dissolved;
17. Upon the termination or expiration of this Agreement, XYZ shall promptly restore to PRIME all brochures, drawings or information concerning the products of PRIME which are in its possession.
18. XYZ agrees to indemnify and keep harmless PRIME and its officers, directors, employees, successors and assigns against all claims, losses, liabilities, damages or expenses of whatsoever form or nature, including attorneys’ and paralegals’ fees and other costs of legal defense whether direct or indirect, that they or any of them, may sustain or incur as a result of any acts or omissions of XYZ , including but not limited to :
a) XYZ ’s material breach of any of the provisions of this Agreement ;
b) XYZ`s gross negligence or other tortuous conduct ; and
c) Violation by XYZ`s of any applicable law, regulation or order in the Territory .
19. PRIME agrees to indemnify and keep harmless XYZ and its officers, directors, employees, successors and assigns against all claims, losses, liabilities, damages or expenses of whatsoever form or nature, including attorneys’ and paralegals’ fees and other costs of legal defense, whether direct or indirect, that they, or any of them, may sustain or incur as a result of any acts or omissions of PRIME, including but not limited to :
a) PRIME material breach of any of the provisions of this Agreement.
b) PRIME gross negligence or other tortuous conduct ; and
c) Violation by PRIME of any applicable law, regulation or order in the Territory .
20. The failure of either party to enforce at any time or for any period of time the provisions hereof in accordance with the terms shall not diminish the right of such parties thereafter to enforce each and every provision.
20. This agreement constitutes the entire and only Agreement between the parties respecting the sales and service representation to the Customers in the Territory of the Products. Any changes to this agreement must be made in writing.
21. Any notice may be effectively given by sending the same by prepaid registered air mail or fax to the party at the address referred to below or as may be changed from time to time by written notice, provided that the party giving notice shall be obliged to use the most expeditious means of giving notice at that time. Any notice so mailed shall be deemed to have received on the 10th day following mailing unless proven otherwise provided that the applicable postal systems are in full continuous operation at such time. If given by fax, notice shall be deemed as given upon transmission.
22. Each provision of this Agreement shall be interpreted in such manner as to be effective and valid, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. This Agreement shall be binding upon the parties hereto. The words “hereof”, “herein” and “hereunder” are words of similar import when used in this Agreement, shall refer to this Agreement as a whole, including all exhibits hereto, and not to any particular provision of this Agreement and unless otherwise specified, all references herein to sections, articles or exhibits shall refer to sections or articles of this Agreement or exhibits to this Agreement.
23. This Agreement is subject to and shall be governed by and construed in accordance with the laws of India and is under the jurisdiction of the courts of Mumbai, in the State of Maharashtra, India .
24. Any dispute or difference relating to this Agreement shall be finally settled according to the rules of conciliation and arbitration of the International Chamber of Commerce in Mumbai (India) by one or more arbitrators appointed pursuant to the said rules. The arbitration shall take place in Mumbai (India).
IN CONSIDERATION of the mutual covenants herein contained the parties hereto execute this Agreement on the date indicated above.
PRIME Limited XYZ
By : __________________________ By : _____________________________
In the presence of : In the presence of :
Sales Assistance & Technical Assistance Agreement
Appendix A
Details of the Products
Sales Assistance & Technical Assistance Agreement
Appendix B
Terms and Conditions of Sale
Sales Assistance & Technical Assistance Agreement
Appendix C
Commission