APPOINTMENT OF SOLE AGENT IN OVERSEAS COUNTRY
Date_______________________________________________________________________(hereinafter called the company which expression shall where the context so permits include the assigns of the company) of the ONE PART
AND
___________________________________________________________________________ (hereinafter called the agents) of the OTHER PART.
WHEREBY IT IS AGREED as follows:
1. The company hereby appoints the agents to be its sole and exclusive agents for the sale of those of its products (hereinafter called the products) specified in the first schedule hereto in the territory (hereinafter called the territory) specified in the second schedule hereto subject to the terms and conditions hereinafter set out and to the power of the company to vary those schedules in accordance with the provisions of clause 5(c) and clause 5(d) hereof.
2. This agreement shall be deemed to have commenced on _______ and shall continue in force for a period of ______ years from that date and thereafter from year to year subject to the provisions as to determination hereinafter contained.
3. The agents hereby undertake and agree with the company that they will at all times during the continuance in force of this agreement observe and perform the terms and conditions set out in this agreement and in particular:
a. will use at all times their best endeavours to promote and extend sales of the products throughout the territory to all potential purchasers thereof and work diligently to obtain orders therefore;
b. will promptly submit to the company all inquiries or orders obtained by them for the products within the territory in sufficiently full and accurate detail as to enable the company with the least possible delay to respond effectively to the inquiries to fulfil the orders;
c. will in all correspondence and other dealings relating directly or indirectly to the sale of the products clearly indicate that they are acting as selling agents of the company;
d. will not accept orders or make contracts on behalf of the company other than subject to confirmation and acceptance by the company and to the company’s conditions of sale for the time being operative and will not make any promises representations warranties or guarantees with reference to the product except such as are consistent with those conditions of sale;
e. will not offer the product for sale at any price other than that for the time being fixed by the company without the previous consent in writing of the company;
f. will not without the previous consent in writing of the company be concerned or interested either directly or indirectly in the manufacture production importation sale or advertisement of any goods in the territory which are like or similar to or which either alone or in conjunction with some other product perform or are designed to perform the same or a similar function to or which might otherwise compete or interfere with the sale of any of the products;
g. will not incur any liability on behalf of the company or in any way pledge or purport to pledge the company’s credit or accept any order or make any contract binding upon the company without the company first approving its terms;
h. will observe all directions and instructions given to them by the company in relation to the sale distribution and exploitation of the products and in the absence of any such directions or instructions in relation to any particular matter will act in such manner as they reasonably consider to be most beneficial to the company’s interests;
i. will keep full and proper books of account and records showing clearly all inquiries transaction and proceedings relating to the agency and in particular all transactions undertaken by or through the agents in relation to the products such books and records being separate from those relating to matters not relating to the agency and remaining at all times the property of the company;
j. will promptly bring to the notice of the company any information received by them which is likely to be of use or benefit to the company in relation to the marketing of its products and will so far as they are able satisfy themselves by means of all proper inquiries as to the financial stability of intending purchasers of the products whose inquiries and orders they transmit to the company;
k. will immediately bring any improper or wrongful use in the territory of the company’s patents trademarks emblems designs models or other similar industrial or commercial monopoly rights which come to their notice to the attention of the company and will in and about the execution of their duties use every effort to safeguard the property rights and interests;
l. will allow the authorised officers of the company at all reasonable times to have access to the agents’ premises for the purpose of inspecting the said books and records;
m. will from time to time upon the written request of the company supply to the company reports returns and other information relating to the agency.
4. The company hereby agrees with the agents that it will during the continuance of this agreement at its own expense supply the agents with such amount of samples and patterns and of instruction books technical pamphlets catalogues and advertising material in [language] as it consider reasonably sufficient with a view to promoting sales of the products within the territory; whenever the company considers it necessary send at its own cost a representative to visit the agents for the purpose of promoting sales of the products; use its best endeavours to safeguard the sole and exclusive rights hereby granted to the agents including the taking of such steps as may be available to it to prevent the infringement of those rights by other agents of the company and to prevent the infringement of its patent trade marks emblems designs and other similar industrial or commercial monopoly rights within the territory.
5. The company reserves to itself the right notwithstanding anything to the contrary herein contained;
a. to trade direct outside the territory with any Government department or agency State-owned public utility or industry for ultimate delivery within the territory and also with any persons firms or bodies corporate or unincorporated who in the normal course of their business buy direct or through branches or agencies in India and no right to commission shall accrue to the agents in respect of any such trading;
b. in its absolute discretion to decline for any reason to accept any order transmitted to it through the agents or to submit any tender on any inquiry through the agents save that in any such event the company will promptly notify the agents of the decision not to accept such an order or submit such a tender but failure so to notify agents shall not be deemed to be proof of acceptance and no obligations to the agents shall be incurred by the company in so declining to accept any order;
c. to take such steps itself as may seem necessary or expedient to it to promote the sale of the products in the territory and to notify the agents of any persons firms or bodies corporate or incorporate carrying on business in the territory who appear to it to be potential purchasers of the products;
d. to vary the first schedule hereto defining the products either by the withdrawal there from of a class or classes of products named therein in the event of the company ceasing to manufacture that class or classes of products or by the addition thereto after consultation with [or with the agreement of] the agents of a further class or of further classes of products;
e. if in the opinion of the company the agents are not at any time producing adequate sales coverage throughout the whole of the territory and without prejudice to any other of its rights under this agreement either to vary the second schedule hereto so as to exclude from this agreement such part or parts of the territory therein defined as it thinks fit or to vary the first schedule hereto so as exclude from the agreement such one or more of the products therein defined as it thinks fit or to take both these courses of action save that neither of these actions shall be taken under this clause without prior consultation with the agents.
f. Save as hereinafter provided the company shall pay or allow to be paid to the agents in consideration for their services to the company in pursuance of this agreement a commission of _______ per cent in (currency) of the price of the products calculated (f.o.b. Indian port) sold by the company for use in the territory in accordance with this agreement to purchasers for the purposes of their business carried on in the territory.
g. No commission shall be paid or allowed by the company to the agents in respect of bad debts or on replacement made free of cost by the company or on repairs.
h. In the case of a sale made direct by the company to any of the persons or bodies mentioned in clause 5(a) hereof no right to commission shall accrue to the agents but the company may make such payments to the agents in respect of such sales as it may in its uncontrolled discretion decide.
i. Commission shall be paid or allowed by the company in respect only of those invoices of the company which have been paid in full by the purchasers except that where payments for purchases are made in instalments the agents shall be entitled to be paid or allowed a proportionate part of the commission on receipt by the company of each such instalment.
j. Payments of commission due to the agents shall be made in respect of sums accruing due in the preceding quarter as soon as possible after the last day of March, June, September and December of each year.
k. No commission shall be payable or allowed to the agents in respect of anyorder received by the company after the termination of this agreement howsoever caused notwithstanding that the agents may have been responsible for or concerned in the obtaining of that order and notwithstanding the quotations may have been submitted during the continuation in force of the agency.
l. As regards orders received during the continuation of the agency in respect of which payment has not been received (or where payment is being made by the purchasers in instalments in respect of which payment of any part of the price has not been received) at the date of the termination of this agreement howsoever caused the rights of the agents to commission shall be determined as follows:
I. Upon the termination of this agreement the company will supply to the agents a list of all orders and instalment payments outstanding at the date of the termination in respect of which the agents are entitled to commission;
II. Within [thirty days] after the receipt of the list by the agents they shall notify the company whether or not they agree with the list and in the event of their not agreeing therewith in what respects they disagree and if they fail so to notify the company they shall be deemed to have agreed therewith.
III. If within a period of [thirty days] from such notification of disagreement the agents and the company are unable to agree on the matters notified the dispute shall be referred to arbitration in accordance with clause 12 [or shall be settled by the auditors for the time being of the company in accordance with clause 12(b) hereof.
IV. The company shall pay or credit to the agents commission in respect of the orders in the said list as finally agreed as and when the company receives payment in full in respect of any such order or in the case of an order in respect of which instalments as being paid at the date of termination of the agreement as and when further instalments are received.
V. No commission shall be payable after the termination of this agreement except in respect of orders and outstanding instalment payments included in the agreed list.
VI. The company may in its discretion allow purchasers a discount of _____ per cent from the invoiced purchase price of the products calculated [f.o.b. Indian port.] on the understanding that the purchasers in such cases shall pay an amount equal to the said _____ per cent discount direct to the agents in (currency). In such cases the company shall not be liable to pay commission to the agents in respect of such sales but the agents shall look solely to the purchasers for the payment of the said _____ per cent discount.
VII. No claims for or deductions in respect of expenses incurred by the agents in the performance of their functions and duties under this agreement shall be made or allowed (except where expressly agreed to beforehand in writing by the company) but the said commission shall be deemed to be a sale commission.
VIII. The company shall have the right at any time by giving notice in writing to the agents to terminate the agreement forthwith in any of the following events:
If the agents commit a breach of any of the terms or conditions of this agreement.
If the agents enter into liquidation whether compulsorily or voluntarily or compound with their creditors or take or suffer any similar action in consequence of debt (or in the case of natural persons or partnership: If the agents or any of the members of the firm become insolvent or enter into any arrangement with their creditors or take or suffer any similar action in consequence of debt.)
If from any cause the agents are prevented from performing their duties hereunder for a period of three consecutive months or for a total period of six months in any one period of twelve calendar months.
If the agents are guilty of any conduct which in the opinion of the company is prejudicial to the company’s interests.
If the agents purport to assign the burden or benefits or charge the benefits of this agreement without the written consent of the company.
If any hostilities break out or are threatened which may affect trading conditions in the territory.
After (date of expiration of the original term of agreement) either party shall have the right to determine this agreement by giving _____ calendar months’ notice in writing expiring on the ____ day of _____ in the year _____ or in any subsequent year to the other party.
The agents hereby undertake that they will not at any time after the making of this agreement divulge any information in relation to the company’s affairs or business or method of carrying on business and that they will not during the period of ______ years after the determination of this agreement for any reason whatsoever be associated whether as principal agents or employers in the manufacture sale or distribution in the territory of any products of a like or similar kind to or designed to perform functions like or similar to the products of the company of which the agents are at any time selling agents under this agreement without the prior consent in writing of the company (or its successors in title).
Upon the termination of this agreement from any cause or at any time previous to such termination at the request of the company the agents shall promptly return to the company or otherwise dispose of as the company may instruct all samples patterns instruction books technical pamphlets catalogues advertising material specifications and other materials documents and papers whatsoever sent to the agents and relating to the business of the company (other than correspondence between the company and the agents) which the agents may have in their possession or under their control and also deliver up to the company upon the termination of this agreement all separate books of account and records relating to the agency kept in accordance with clause 3(1) of this agreement.
Upon such termination the agents shall forthwith deliver up to the company or otherwise dispose of as the company directs the products and any parts thereof the property of the company which the agents may have in their possession or under the control.
The cost of carriage insurance duty and charges incurred in any such return delivery up or other disposal shall be borne equally between the parties.
Where in order to enable the agents to maintain adequate sales coverage the appointment by the agents or sub-agents is desirable the agents shall be entitled with the previous consent in writing of the company to make such appointments but only on such terms as the company shall in writing approve land the agents shall be at all times responsible for the acts deeds or omissions of all persons firms or companies so appointed.
a. The company shall not be responsible for acts or defaults of the agents or of the agents’ employees or representatives.
b. Any act or omission which if it were an act or omission of the agents would be a breach of this agreement on their part shall be deemed to be such an act or omission for which the agents are responsible if done or omitted:
i. by any body corporate or unincorporated(whether constituted at the date of this agreement or not) which is controlled wholly or mainly or directly or indirectly in any manner by the agents or by any person or persons who controls or control or by any such body which itself controls wholly or mainly or directly or indirectly in any manner the agents or which is controlled wholly or mainly or directly or indirectly by a person or persons and/or body or bodies corporate and/or unincorporated who or which controls or control wholly or mainly or directly or indirectly the agents; or
ii. by any firm or unincorporated body of which the agents shall for the time being be a partner or member.
Any dispute difference or question which may arise at any time hereafter between the company and the agents touching the true construction of this agreement or the rights and liabilities of the parties hereto shall (except as provided by the paragraph (b) of this clause or) unless otherwise herein expressly provided be referred to the decision of a single arbitrator to be agreed upon between the parties or in default of agreement for fourteen days to be appointed at the request of either party by (appointer) in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof for the time being in force.
In the event of any dispute concerning the amount of any monies due or payable by either party to this agreement to the other under this agreement a certificate as to the amount signed by the auditors for the time being of the company shall be conclusive and binding on both parties.
This agreement shall be deemed to have been made in India and the construction validity and performance of this agreement shall be governed in all respects by Indian Law.
The text of this agreement herein written in English language is the authentic text and any difficulties of uncertainties in interpretation arising shall be solved solely by reference to this text.
All previous agreements and arrangements if any made between the company and the agents are hereby cancelled but without prejudice to any rights which have already accrued thereunder to either party.
This agreement embodies the entire understanding of the parties and there are no promises terms conditions or obligation oral or written express or implied other than those contained herein.
Any notice required to be given hereunder shall be sufficiently given to the agents if forwarded by registered post cable telegraph telex or wireless telegraphy to the last known postal address of the agents in territory and shall be sufficiently given to the company if similarly forwarded to its registered office in India. Every notice shall be deemed to have been received and given at the time when in the ordinary course of transmission it should have been delivered at the address to which it was sent.
The words “in writing” whenever contained in this agreement shall be deemed to include any communication sent by letter telegram or wireless telegraphy.
AS WITNESS etc.
FIRST SCHEDULE
The Products
(Specify particular classes of products and their intended use)
SECOND SCHEDULE
The Territory
(Describe area covered by agreement)
(Signatures of or on behalf of both parties)
_______________________________
_______________________________
