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
- 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 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
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-
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:
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………
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.
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
b) commissions
on sale of Products, entered into by Principal with Clients having business in
the rest of
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
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.
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
16.2
The competent Federal Court or
Exhibit
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:
…
.
.
.
.