| AGENCY AGREEMENT
THIS AGREEMENT is made on the 9th of March 2009
Between
(1) Contractor, a company incorporated under the laws of China and having its registered office at xxxxx, Beijing 100055, China (hereinafter called "Principal"); and
(2) Agent, a corporation according to law of USA and having its registered office at xxxxx USA (hereinafter called “Agent").
WHEREAS:
a. The Principal is engaged in the turnkey construction and equipment of Thermal 3 1x150 MW Project (hereinafter called “Principal’s Products and Services�?.
b. The Agent has the market knowledge, experience and contacts connected to the market relevant to the Principal’s Products and Services.
c. The Principal agrees to appoint the Agent as its exclusive Agent for the Thermal 1x150 MW Project (hereinafter called “Project�? in xxxxx and the Agent agrees to accept the appointment on the terms and conditions appearing hereinafter.
NOW IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
1. Appointment
The Principal hereby appoints the Agent as its exclusive agent in the Project, and the Agent hereby acknowledges and agrees to accept the Principal’s appointment.
2. The responsibilities and obligations of the Agent:
The Agent shall, during this Agreement:
a) Procure the Tender Documents of the Project, discuss the details of the Tender Documents with the Principal and remind the Principal of Tender’s special conditions and all information relevant to the Project. After considering the Principal’s benefit sufficiently, the Agent will advise the Principal to offer a competitive price which can be accepted by the Owner so that the Principal can win the Project;
b) Assist the Principal to visit site, prepare and submit the Bidding Documents, participate the clarification meeting and negotiate the related terms (including the final price) with the Owner;
c) Provide his best assistance, advice and guidance as to how the Project should be achieved and how to win the Project and further to execute it;
d) Use its best endeavors to help the Principal win the Project;
e) Coordinate the relationships between the Principal and Owner on all the activities of the Projects during the preparing, bidding and executing the Project period;
f) Support the Principal in its collection of the payment for the Project during each stage of implementation;
g) Inform the Principal details of the discrepancies, differences arising between the Principal and the Owner promptly, provide its advice and if necessary, assist the Principal to solve those discrepancies or differences in the course of negotiation and during the execution period of the Project;
h) if necessary, recommend the local famous law and/or account firm to the Principal to acquaint the latter with local laws and taxes;
i) Announce that the Principal has not expressly or impliedly give, permit or encourage him to do anything, which is breach the local law;
j) not, directly or indirectly, on behalf of any other party or himself, to bid this Project except as the exclusive agent of the Principal in this Project;
k) not provide any assistance or services to the Principal’s competitors or third parties, excluding publicly available information, documents, data.
l) not, in the name of the Principal, promise, accept or sign any condition and/or document issued by the Owner without the Principal’s special authority prior in written;
m) not , during the period of this Agreement, breach the local law;
n) not disclose any information to the public provided by the Principal except the Principal agreed prior in written during and after the period of validity of the agency agreement;
o) Provide all other assistances which required by the Principal.
3. The responsibility and obligations of the Principal:
The Principal shall, during this Agreement:
a) Pay a Commission to the Agent during the implementation of the contract under the Project;
b) Give instruction to the Agent when the Agent poses questions to the Principal as soon as possible;
c) Furnish the Agent with all information concerning the Project, which may reasonably be required by the Agent from time to time, for the awarding of the Project;
d) Not appoint other party as its agent in this Project during the period of this Agreement except the Agent waives its character as exclusive agent impliedly or expressly or breach its obligation under this Agreement.
4. Commission
- Principal shall pay Agent a commission fee, equal to 3.5% of total EPC contract amount, to the Agent after signing the EPC Contract for the Project with the Owner and the EPC Contract comes into force. However, the Agent agrees that if the final awarding price of the Project is lower than the Principal reasonable expected which has been disclosed to the Agent, the Commission fee shall be decreased proportionately.
- Both parties hereby acknowledge and agree the Commission is fully and finally satisfied to the Agent. Except that, the Agent shall not ask the Principal for any other fees whatever it is named, unless the Principal agrees to pay expressly.
- The Commission to be paid to the Agent by the Principal shall be conducted and disbursed in the manner as below:
Paying the First installment of the Commission by 30% within 30 days after the Principal receives the down payment completely and the EPC contract has been come into force.
Paying the Second installment of the Commission by 40% within 30 days after the Principal receives all payment of equipment & material.
Paying the Third installment of the Commission by 30% within 30 days after the Owner issued the Final Acceptance Certificate to the Principal.
- The Principal will not transfer any of this Commission or responsibilities without the specific written approval of the Agent arising out of specific conditions and circumstances.
- It is also fully understood that the Commission to be paid to the Agent under this Agency Agreement shall be conducted and disbursed after the Principal successfully received the relevant payment.
5. Termination of this Agreement
5.1 This Agreement shall come into force on the date hereof and, subject as provided in Clause 5.2, shall continue in force until 90 days after the principal’s receipt of the Final Acceptance Certificate unless or until terminated earlier by either party giving to the other not less than 60 days' written notice.
And if a successful Project Contract has not been achieved within 24 months from the effective date of this Agreement, the agreement will automatically ceases to be effective, and either party shall not be entitled to claim the other party for any costs and expenses except there is any other specification in this Agreement.
5.2 Notwithstanding Clause 5.1, either party shall be entitled forthwith to terminate this Agreement if the other party:
l commits any materially breach of any of the provisions of this Agreement;
l appoint a receiver, trustee, liquidator or similar officer of itself of all or a substantial part of its assets, or admits in writing its insolvency, or bankruptcy or its inability to pay its debts as they become due, or makes a general assignment for the benefit of creditors, or files a petition of bankruptcy, or (being insolvent) seeks relief under the provisions of any bankruptcy or other similar law which provides the protection, reorganization or winding up for insolvent corporations (other than for the purpose of amalgamation or reconstruction).
5.3 In case the Agent violates one of its obligations specified in Clause 2 i) �?n), the Principal will have the right, except terminating this agreement immediately, to claim the Agent for damages and/or expenses resulting from such violation.
6. Severability
If any provision of this Agreement is declared invalid by any tribunal or competent authority, then such provision shall be deemed to be automatically adjusted to conform to the requirements for validity as declared at such time and as so adjusted, and shall be deemed to be a provision of this Agreement as though originally included. If the provision invalidated is of such a nature that it cannot be so adjusted, the provision shall be deemed deleted from this Agreement as though the provision had never been included, unless such deletion causes the purpose of the whole agreement can’t be achieved, and the settlement will be up to the parties�?further discussion. Otherwise, in either case, the remaining provisions of this Agreement shall remain in full force and effect.
7. Waiver
The failure of either party to enforce at any time any of the provisions of this Agreement or to require at any time performance by the other party of any of such provisions, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of the Agreement or any provision thereof, or the right of either party thereafter to enforce each and every provision.
No waiver of any default hereunder by either party or any failure to enforce any right hereunder shall be deemed to constitute a waiver of any subsequent default with respect to the same or any other provisions hereof.
8. Variation of Agreement
No variation of the terms of this Agreement shall apply unless such variation is expressly accepted in writing by the Principal and the Agent respectively.
9. Entirety of Agreement
This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all previous negotiation, representations and agreements whether written or oral.
10. Agency Agreement Execution and Arbitration
This Agency agreement should be executed on good faith and as per the international Law and regulations. Disputes arising out of or from the execution of this Agency Agreement shall be settled amicably. In case of failure to reach amicable agreement by negotiation, any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be finally settled in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or three arbitrators designated in accordance to said Rules in Paris. The language of the arbitration shall be English.
The award(s) made by the arbitrator(s) shall be final and binding upon both Parties. Both parties agree that, once an award is made finally in the jurisdiction of choice, the award cannot later be appealed in a foreign jurisdiction.
11. Notices
All notice and correspondence between the two parties to this Agency Agreement shall be in writing and served to either party’s stipulated registered mail fax or email, or hand delivery against deliver receipt.
The Principal:
To: xxxxx
E-mail Address: xxxxx
The Agent:
Address: xxx
To: xxxxx
Any such notice, demand or communication shall be deemed to have been duly served (if given or made by fax) immediately or (if given or made by letter) immediately or (if hand delivered) 2 days after posting or 5 days after posting (if to an address overseas) and in proving the same, it shall be sufficient to show that the envelope containing the same was duly addressed, stamped and posted.
12. Assignment
The Principal may assign this Agreement and the rights and obligations thereabove.
This Agreement is personal to the Agent. The Agent shall not without the written consent of the Principal, assign, mortgage charge or dispose of any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereabove.
The Agent shall not without the prior written consent of the Principal employ sub-agents and if with such consent it does so, every act or omission of the sub-agent shall for the purposes of this Agreement be deemed to be the act or omission of the Agent.
13. No Partnership
Nothing in this Agreement shall create, or be deemed to create a partnership or the relationship of employer and employee between the parties.
14. Language of the Agreement
The text of this Agreement herein written in the English Language is the authentic text and any difficulties and uncertainties in interpretation arising shall be solved referring to this text and it shall prevail over any translation version made hereof.
15. Interpretation
In the contract, except where the context requires otherwise:
a. words indicating the singular also include the plural and words indicating the plural also include the singular;
b. provisions including the word “agree�? “agreed�?or “agreement�?require the agreement to be recorded in writing, and
c. “written�?or “in writing�?means hand-written, type-written, printed or electronically made, and resulting in a permanent record.
16. Signature and Effective date
In witness whereof, both parties hereto executed this Agency Agreement in Duplicate by their duly authorized representatives, and affixed their signature on the date written above. Each Party will hold one original copy.
17�?/B> Governing Law
The construction, validity and performance hereof shall be governed by and construed in accordance with the laws of Hong Kong, SAR.
18. Costs
Each Party shall bear its own costs and expenses arising from or in connection with this Agency Agreement and its obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement the day and year first above written.
Signed by )
for and behalf of )
Principle
In the presence of;
Signed by )
For and behalf of )
)
In the presence of; |
China National
Electric Wire&Cable Imp./Exp. Corp
