AGENCY AGREEMENT

 

This Agency Agreement is made on ……….2005 by and between  XYZ USA Inc., with its principal place of business at ………..Miami, Florida, represented by Mrs. …………… (hereinafter called  the “Principal”),

 

and

 

........ ........, INC., with its principal place of business at………, Miami FL. …., represented by Mr. …….. (hereinafter called "Agent"). 

 

WHEREAS

 

 

 

 

 *       Principal has acquired exclusivity in promotion, commercialization and sale in USA market for products of Xyz S.r.l., whose registered office is in ………..;

-  The Principal intends to use an agent, to the aim of the promotion and of the sale of products, as listed in Exhibit " A", hereinafter simply referred to as “Products”;

 

IL CONTRATTO È INCOMPLETO, A RICHIESTA SARÀ INVIATA UNA COPIA COMPLETA (artt.17 ss Cod.Deont.)

 

STUDIO

MISURACA, & Associati/Associates

Studio Legale

Law Firm

www.smaf-legal.com

 

Il contratto manca di molte clausole, lo studio legale SMAF invia su gentile richiesta una completa copia a titolo di prestazione professionale a pagamento ex artt.17 ss. Cod. Deont. Forense / The contract has missing clauses; please, consider SMAF law firm allowed to send a you a payable copy according to Italian Forensic Deontology Code.

 

 

20123 MILANO (MI), Italia

Via Monti, 8

tel.:   +(39) 02 006 15 017  

fax:   +(39) 02 700 50 81 00

e-mail: info@smaf-legal.com

 

00198 ROMA (RM), Italia

Via Savoia, 78

tel.:  +39 06 92 938 008

cell.: +39 06 8928 10 51

e-mail: info@smaf-legal.com

 

40123 BOLOGNA (BO), Italia

Via Urbana 5/3

tel.:    +(39) 051 64 40 543

fax.:   +(39) 051 09 52 565

2°fax: +(39) 051 33 70 177

e-mail: misuraca@smaf-legal.com

 

 

 

 

 

*    Principal is interested to the formation of a relationship of commercial agency with Agent and Agent is interested to promote and to sell the products of Principal in the territory as better described  in section 2 hereby and hereinafter simply called "Territory".

 

 

The Parties agree as follows:

 

ART. 1: OBJECT

 

     1.1   This Contract is a commercial and sole exclusive agency to promote the sale, but Agent cannot bind the Principal in any matter or sales transactions.

 

     1.2    Agent pledges, by commission, to permanently promote the sale of the Products on behalf and in the interest of Principal.

 

     1.3   Agent undertakes the obligation to pay the best collaboration to the Principal’s employees, who are in the Territory, without requesting fees or special compensations. Agent pledges to give upon request of the customers every information on the sale and payment conditions, also to inform Principal on the developments and evolutions of the market. Agent shall give to the Principal all useful information for the performance of business, which she will acquire independently from its fulfillment.

 

    1.4   The invoicing will be carried out directly by  Principal to the Clients and Agent is absolutely not authorized to accept any payments on behalf of Principal.

 

     1.5   Agent shall use samples, documentation, brochures, catalogue and advertising material which Principal shall deliver to it.

 

     1.6   Agent guarantees to be in good standing in its jurisdiction to validly exercise its activity under this Contract.

 

       1.7   Agent has no power of proxy nor any other authority to act on behalf of Principal, therefore it cannot sign contracts on behalf of Principal or undertake obligation toward third parties.

 

       1.8   The premises and the attachments are an essential part of this Contract.

 

 

ART. 2:  TERRITORY AND PRODUCTS

 

2.1.      Agent shall execute its activity in the following territory: United States of America.

 

2.2.      Under no circumstances may Agent carry out its activities related to the Products in zones which are not included within the limits of the Territory, unless it receives previous written authorization of Principal, but if this should occur, Principal may terminate this Contract under section 12.

 

2.3.      Clients, as listed at Exhibit “C”, are identified as………

 

ART. 3:  TERM OF THE CONTRACT AND NOTICE

 

3.1       This Contract has a term for a period of eighteen (18) months, as a trial period, and becomes binding and enforceable as of the date of its signature.

 

3.2       On maturity of aforesaid eighteen months, if neither party has terminated the Contract, by a written notice, to be sent by certified mail with return receipt, three (3) months in advance thereby, the Contract is automatically extended for twelve (12) months, and so on, time by time, unless either party terminates  by a written notice, to be sent by certified mail with return receipt, six (6) months in advance of the expiration of any such renewal period.

 

 

 

ART. 4:  MINIMUM TURNOVER

 

4.1   Three months before maturity of initial term for the trial period of eighteen (18) months, the parties shall agree by writing to an annual minimum sales, which  Agent shall obtain orders for transmission to the Principal during following year. In the same way, every year, if the Contract is extended, three months before the end of contractual year, parties shall agree by writing  to an annual minimum sales  for the following year.

 

4.2   If at the end of every six months seventy five per cent of minimum of budgeted orders is not attained, the Principal shall be entitled at its discretion to terminate this Contract.

Such option must be exercised by the Principal within the end of the second month following the six months in which the minimum of orders has not been attained, by written notice, to be sent by certified letter.

 

 

 

ART. 5: CONFIDENTIAL INFORMATION

 

5.1  Agent (including its officers, directors, employees and all the partners involved to the Agent) shall maintain the confidentiality as to all business regarding the activity or the corporate structure of Principal, or other proprietary items of Principal, including trade secrets, customers, pricing and the like, also after the termination of this Contract.

 

5.2  Any breach of these obligations entitles the Principal to immediately terminate this Contract.

 

 

ART. 6: TRADEMARKS AND DISTINGUISHING SIGNS

 

6.1  Agent shall use marks, names or other distinguishing signs of Principal to the exclusive aim to identify and to advertise the Products, during its activity as Agent of Principal, being meant that such use shall be in the exclusive interest of Principal.

 

6.2   Agent pledges not to register in the Territory or elsewhere, marks, names or distinguishing signs of Principal, nor to register, create or use any marks, names or distinguishing signs, which are similar to those of Principal.

 

6.3  The right of Agent to use marks, names and/or distinguishing signs of Principal immediately stops with the termination or maturity or cancellation, for whichever cause, of this Contract.

 

6.4  Agent shall return to Principal, on termination or cancellation of Contract, samples, documentation, brochures, catalogue, advertising material and all documents in its possession given by Principal.

 

 

ART. 7: PRICES, DISCOUNTS

 

7.1    Agent in the promotion of sales shall strictly comply with the prices listed in price-lists sent to it by Principal for Territory.

 

7.2    Agent will not concede any discount, reduction, abatement, free packages and other terms not authorized by prior written consent of Principal.

 

ART. 8: ORDERS

 

8.1   Agent in obtaining orders will have to exclusively use and comply with  the purchase order forms given by Principal, and the person signing on behalf of client is an authorized person to bind the client.

 

 

ART. 9:  AMOUNT OF COMMISSION

 

9.1   Payments due to Agent by Principal for its performance under this Contract consist of:

a)      commissions on sale of Products, entered into by Principal with Clients having business in Florida, promoted by Agent.

b)      commissions on sale of Products, entered into by Principal with Clients having business in the rest of territory of USA, promoted by Agent.

 

9.2   Commission is due only for completed sales, in which Principal has bees fully paid the price of the sale.

 

9.3   Agent is entitled to a commission on all sales completed and fully paid.

 

9.4   Commission in paragraph  9.1, (a) shall be calculated as follows:                               commission shall be equal to 20% of Principal’s net sales for completed sales as mentioned above in aforesaid paragraph. “Net sales” shall be mean the gross sales price less any possible discount, expenses, cost (for packing, transportation and insurance charges, stamp duty, collection cost) and of any credits. Aforesaid commission requires  the undertaking of Agent to provide a sales person who shall dedicate time in promotion of the Products with clients having their business in Florida. Only if there is exclusive use by Agent of a sales person on behalf of Principal, the Principal shall pay per month on the beginning of every month to Agent, in advance on commissions to be given, USD ………. (…………… USD).  The advance shall be deducted by commissions to be paid. In the event that Agent does not provide a sales person exclusively engaged in the promotion of Principal’s Products, commission will be reduced to 10% of net sales of Principal for completed sales mentioned in this section.

 

9.5   Commissions, in paragraph 9.1 (b), shall be determined as follows:  commission shall be equal to 10% of Principal’s net sales for completed sales as mentioned above in aforesaid paragraph. “Net sales” shall be mean the gross sales price less any possible discount, expenses, cost (for packing, transportation and insurance charges, stamp duty, collection cost) and of any credits.

 

9.6   Commissions include all travel expenses and all costs, activities of  Agent. Agent has no right to any severance compensation after termination of this Contract but Agent  is entitled only  to due commissions.

 

 

 

ART. 10:  METHOD OF CALCULATING COMMISSION AND PAYMENT

 

10.1   The commission shall be calculated monthly and shall be paid, on basis of a statement of account, within  30<sup>th day following the end of each month.

 

10.2   If any clients pay by credit letter or similar, commission shall be due, when,  60 (sixty) days after last expiration of said credit letter, related bank receipt is returned unpaid.

 

10.3   Principal shall send monthly to Agent of all copies of invoices (issued to Clients), which determine right to commission, and copies of credits and debts.

 

ART. 11: SPECIAL DUTIES

 

11.1</span></span><![endif]><span lang=EN-GB style='font-size:10.0pt;font-family:Tahoma;mso-ansi-language:EN-GB'>Agent will be permitted to conduct its own business operations that it thinks suitable for its performance hereunder. The parties can agree by writing, time to time, appropriate advertising and promotion and participation in fairs in Territory assigned to Agent. Agent will be also allowed to institute sub-agencies with the prior consent of Principal.

 

11.2</span></span><![endif]><span lang=EN-GB style='font-size:10.0pt;font-family:Tahoma;mso-ansi-language:EN-GB'>Agent, as representative of Principal, agrees to take act in the Territory, with ordinary business care, continuously visiting  the Clients. In particular, Agent shall transmit each six months a report on its activity.

 

11.3</span></span><![endif]><span lang=EN-GB style='font-size:10.0pt;font-family:Tahoma;mso-ansi-language:EN-GB'>Agent is obliged to the best of its efforts to ascertain, with due diligence the financial situation of clients relating to possible orders to Principal.

 

11.4</span></span><![endif]><span lang=EN-GB style='font-size:10.0pt;font-family:Tahoma;mso-ansi-language:EN-GB'>If there is any dispute or claim by clients, Agent pledges to give its best collaboration to Principal to resolve any such dispute or claim.

 

 

ART. 12: TERMINATION

 

12.1</span></span><![endif]><span lang=EN-GB style='font-size:10.0pt;font-family:Tahoma;mso-ansi-language:EN-GB'>The appropriate party has the right  to terminate without giving any prior notice this Contract, with immediate effect as of the day of a written communication, if :

*       Agent has breached obligations provided by section 4.2 (minimum turnover),  5 (confidential information), 6 (trademark);

*       Either party stops or threats to stop own business operations;

*       Either party is in state of insolvency;

*       Either party  is subjected to a bankruptcy proceeding;

*       Either party received an injunction against its assets:

*       Either party is not able to pay its creditors when due;

*       Either party is subjected (directly or indirectly is subjected) to criminal investigations;

*       Either party has substantially changed the shareholding control  of its company;

Except as stated above, either party may terminate this Contract if the other party has materially breached this Contract, which has not been cured within 30 days after notice.

 

 

12.2   In case of termination of this Contract by other party, then Principal shall send, within 60 (sixty) days from the effective termination final accountings, describing all sums to be paid between parties under this Contract, appropriate provisions by this Contract by their nature intending  and deriving by this Contract.

 

12.3    The payment due to each party as applicable, shall be made within 30 (thirty) days from the acceptance of the final accounting by both parties.

 

 

ART. 13: TRANSFER OF CONTRACT

 

Agent may not assign or in any way transfer this Contract, in whole or in part, without the previous express and written consent of the Principal. 

 

 

ART. 14: MODIFICATIONS

 

Any modification or amendment of this Contract  shall be documented by written  agreement of the Parties.

 

 

ART. 15: FORCE MAJEURE

 

15.1   Force Majeure shall mean any event or condition, not existing as of the date of signature of this Contract, not reasonably foreseeable as of such date and not reasonably within the control of either party, which prevents in whole or in material part the performance by one of the parties of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasonable. Without limiting the foregoing, the following shall constitute events or conditions of Force Majeure: interruption of railways and airways, war, epidemics, fire, act of government which forbids commercialization of the Products, etc.

 

15.2   Upon giving notice to the other party, a party affected by an event of Force Majeure shall be released without any liability on its part from the performance of its obligations under this Contract. Such notice shall include a description of the nature of the event of Force Majeure, and its cause and possible consequences. The party claiming Force Majeure shall promptly notify the other party of the termination of such event.

 

15.3   The party invoking Force Majeure shall provide to the other party confirmation or statement or certificate of the existence of circumstances constituting Force Majeure, when it happens.

 

15.4   During the period that the performance by one of the parties of its obligations under this Contract has been suspended by reason of an event of Force Majeure, the other party may likewise suspend the performance of all or part of its obligations hereunder.

 

15.5   Should the period of Force Majeure continue for more than 3 (three) consecutive months, either party may terminate this Contract without liability to the other party, except for payments due to such date, upon giving written notice to the other party, to be sent by certified letter.

 

 

ART. 16:  APPLICABLE LAW AND COMPETENT JURISDICTION

 

16.1        Notwithstanding the provisions  set forth in the above mentioned clauses, the Contract is governed in all respects by the laws of State of Florida.

 

16.2          The competent Federal Court or Florida Court of Miami-Dade County shall have jurisdiction in any action arising between Agent and Principal out of or in connection with this Contract and the losing party will pay the other party’s reasonable legal fees and costs.

 

Exhibit

A- Products

 

Date: …………………, 2005

 

The Principal                                        Agent

 

...................................                        ...................................


EXHIBIT A

 

In accordance to premises of this commercial agency Contract the parties agree that “Products” shall be meant the following, as listed:

.

.

.

.