(Principal)
AND
(Agent)
Appointment of Purchasing Agent
DATED:
TABLE OF CONTENTS
1.
Definitions .................................................................................................................. 3
2.
Grant.......................................................................................................................... 3
3.
Principal’s obligations................................................................................................. 3
4.
Termination ................................................................................................................ 5
5.
Termination consequences ........................................................................................ 5
6.
Miscellaneous ............................................................................................................ 6
7.
Retention of title ......................................................................................................... 7
8.
Reservation of rights .................................................................................................. 8
9.
Interest....................................................................................................................... 8
10.
Receipt ...................................................................................................................... 8
11.
Force majeure............................................................................................................ 8
12.
Severance.................................................................................................................. 9
13.
Whole agreement ...................................................................................................... 9
14.
Prior agreements ....................................................................................................... 9
15.
Discretion ................................................................................................................... 9
16.
Change of address .................................................................................................... 9
17.
Notices ....................................................................................................................... 9
18.
Headings.................................................................................................................... 9
19.
Joint and several .......................................................................................................10
20.
No partnership ..........................................................................................................10
21.
Assignment ...............................................................................................................10
22.
Jurisdiction ................................................................................................................10
APPOINTMENT OF PURCHASING AGENT
Dated
Parties
(the principal)
(the agent)
Recitals
The principal wishes to appoint the agent as its sole and exclusive agent for the purchase of
the goods in the territory for the term upon the stipulations of this agreement.
1.
2.
Definitions
1.1
Key Director of the Agent is
.
1.2
Goods: all or any of the goods listed in SCHEDULE 1;
1.3
Term: the period starting on
and ending on
or and continuing until terminated by the principal or the agent upon
days’ notice unless terminated sooner as provided in the conditions;
1.4
Territory: the area described in SCHEDULE 2.
Grant
2.1
The principal appoints the agent as its sole or exclusive agent for the
purchase of the goods in the territory for the term.
2.2
The agent is authorised upon making purchases of the goods on behalf of the
principal to ship them to such destinations as it may be notified by the
principal from time to time and to arrange suitable insurance cover for the
goods in transit.
2.3
The agent must always disclose the identity of the principal in acting as agent
of the principal unless the principal directs the agent not to disclose the
identity of the principal to any purchaser in any class or type of case.
The agent must always disclose the identity of the principal in acting as agent of the
principal unless the principal directs the agent not to disclose the identity of the
principal to any purchaser in any class or type of case.
3.
Principal’s obligations
3.1
The principal agrees with the agent during the term:
3.1.1
not to purchase the goods within the territory other than through the
agent;
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3.2
3.3
3.1.2
to repay to the agent all reasonable expenses incurred by the agent in
respect of which accounts are required to be kept in accordance with
clause 4.1.4 on receipt of an account of them which the agent is to
prepare and send to the principal within
days after the last day
respectively of March, June, September and December in each year;
3.1.3
in consideration of the services undertaken by the agent under this
agreement to pay the agent a commission of
per cent on the
wholesale price of the goods bought by the agent on behalf of the
principal and accepted by the principal such commission to be paid
monthly or as the parties may otherwise agree in writing.
The agent agrees with the principal throughout the term:
3.2.1
promptly to execute orders for the purchase of the goods
communicated to the agent from time to time by the principal and to
effect all purchases at the price and on the most advantageous terms
obtainable for the principal;
3.2.2
in placing such orders to have regard to any export or currency
restrictions of the countries within which the purchases are to be made
and to obtain or provide for the obtaining of any necessary licences or
permissions so as to prevent any frustration of or delay in delivery;
3.2.3
to act as general consultants to the principal on all matters concerning
purchases of the goods in the territory and to keep the principal
informed of the:
(a)
sources of supply of the goods;
(b)
general level of market prices of the goods ruling from time to
time in the territory;
(c)
general conditions appearing likely to affect the future price or
conditions of the goods or to interfere with the prompt supply of
them to the principal.
In making purchases:
3.3.1
to inform the seller of the purposes for which the goods are intended
to be used and of the fact that the agent is acting as agent;
3.3.2
to obtain such warranties as to the nature, quality and suitability of the
goods purchased as the principal may require;
3.3.3
to keep separate, proper and accurate accounts and records of
purchases of the goods made on behalf of the principal including full
details of the persons from whom they are purchased, the quantity, the
total price paid and wherever possible the price per unit quantity and
also the expenses incurred by the agent in making those purchases
and arranging delivery as required by the principal and of mail and
telecommunications charges incurred in relation to such purchases
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and to permit the principal by its duly appointed agents to inspect
those accounts and records at such times as it may respectively
require;
3.3.4
4.
Termination
4.1
5.
to pay for the goods purchased on behalf of the principal in
Currency by bills of exchange payable in
place
days
after sight drawn on the principal which the principal undertakes to
accept on receipt of the shipping documents.
The principal may terminate this agreement immediately:
4.1.1
upon the principal’s discovery that the agent has committed a
fraudulent act or acts in the nature of fraud upon the principal;
4.1.2
upon the principal’s discovery that the agent has been guilty of a
misrepresentation in its dealings with the principal;
4.1.3
upon the commencement of the liquidation of the agent or dissolution
if a partnership;
4.1.4
upon the breach by the agent of any of the terms and conditions of
this agreement which the parties have agreed are fundamental terms,
any breach of which would go to the root of the contract between them
and if that breach is not rectified within seven (7) days after the
principal serves a notice on the agent identifying the breach and
directing the agent to rectify the breach.
Termination consequences
5.1
Procedure — on the expiry or other termination of this agreement the agent
undertakes:
5.1.1
to dispose of all products in its possession in accordance with the
principal’s directions;
5.1.2
to procure the transfer of the telephone numbers, email addresses and
web address URL’s of the business to such person as the principal
directs;
5.1.3
to destroy all stationery used in the business;
5.1.4
to return to the principal or to dispose as directed by the principal all
samples and publicity, promotional and advertising material used in
the business;
5.1.5
to sign such notification of cessation of use of the intellectual property
as is required by the principal;
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to return to the principal all originals and copies of all documents and
information in any form containing or covering in any way any part of
the intellectual property;
5.1.7
immediately to cease carrying on the business.
5.2
Financial consequences —
days prior to the expiry of the term or
days after the receipt of notice terminating this agreement the agent
must provide to the principal a complete and accurate account of all
transactions subsequent to those incorporated in the last set of accounts in
clause 4.1.4 and not later than seven days after such date pay to the principal
any sums due to the principal under this agreement.
5.3
Commission on termination — the agent is entitled to commission only in
respect of orders obtained by it and transmitted to the principal before the
date of termination and not in respect of orders transmitted to the principal
after the date notwithstanding that the agent has been responsible, in whole
or in part for the placing of such orders with the principal.
5.4
No competition — for a period of
agent undertakes:
5.5
6.
5.1.6
years after expiry or termination the
5.4.1
not to engage directly or indirectly in any capacity in any business
venture competitive with the business in the territory;
5.4.2
not to solicit customers or former customers of the business with the
intent of taking their custom;
5.4.3
not to employ any employees or former employees who were
employed in the business by the principal or any other representative
of the principal;
5.4.4
and to procure that all directors and shareholders of the agent enter
into direct covenants of a similar nature with the principal.
Existing rights — the expiry or termination of this agreement shall be without
prejudice to any rights which have already accrued to either of the parties
under this agreement.
Miscellaneous
6.1
Warranty — each of the parties warrants its power to enter into this
agreement and has obtained all necessary approvals to do so.
6.2
Death or incapacity
6.2.1
If the agent dies, the personal representatives of the agent must notify
the principal of their decision:
(a)
to continue the business; or
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(b)
to assign this agreement to any beneficiary of the will or
intestacy or to a third party, or
within
days from the date of death of the agent or from the date
they receive notice of the death of the agent.
7.
6.2.2
If the agent or
(the key director of the agent) becomes
incapacitated from performing his or her duties, or if he or she dies,
the principal may appoint personnel to supervise the conduct of the
business to ensure that the business is operated in a satisfactory
manner to preserve the goodwill associated with the business pending
the recovery of the agent or
(the key director of the agent) or
such assignment.
6.2.3
If the incapacity of the agent or the key director of the agent continues
for a period of
days or a total period of
working days the
principal may require the agent to dispose of the business.
6.2.4
If so requested by the agent or the personal representatives of the
agent the principal may act as a non exclusive agent for the sale of the
business and in such event shall be paid a reasonable fee and its
expenses for the same.
Retention of title
7.1
The principal and the agent agree that:
7.1.1
the property of the seller in the goods remains with the principal until
the principal has been paid in full for the goods under all individual
contracts for the supply of the goods between the principal and the
agent;
7.1.2
the agent is a bailee of the goods until such time as property in them
passes to the agent bailment continues in relation to each of the
goods until the price of the goods has been paid in full;
7.1.3
pending payment in full for the goods, the agent:
(a)
must not supply any of the goods to any person outside of its
ordinary or usual course of business;
(b)
must not allow any person to have or acquire any security
interest in the goods;
(c)
must insure the goods for their full insurable or replacement
value (whichever is the higher) with an insurer licensed or
authorised to conduct the business of insurance in the place
where the agent carries on business;
(d)
must not remove, deface or obliterate any identifying plate,
mark or number on any of the goods.
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7.1.4
Despite clause 7.1, if the agent supplies any of the goods to any
person before all moneys payable by the agent have been paid to the
principal (and have not been claimed or clawed-back by any person
standing in the place of or representing the agent), the agent agrees
that:
(a)
it holds the proceeds of re-supply of the goods on trust for and
as agent for the principal immediately when they are receivable
or are received;
(b)
it must either pay the amount of the proceeds of re-supply to
the principal immediately when they are received or pay those
proceeds into an account with a bank or a financial institution or
deposit-taking institution as trustee for the seller;
(c)
any accessory or item which accedes to any of the goods by an
act of the principal or of any person at the direction or request
of the agent becomes and remains the property of the principal
until the principal is paid in accordance with clause 7.1.1 when
the property in the goods (including the accessory) passes to
the agent;
(d)
if the agent fails to pay for the goods within the period of credit
(if any) extended by the principal to the agent, the principal may
recover possession of the goods at any site owned, possessed
or controlled by the agent and the agent agrees that the
principal has an irrevocable licence to do so.
8.
Reservation of rights
All rights not specifically and expressly granted to the agent by this agreement are
reserved to the principal.
9.
Interest
All sums due from either of the parties to the other which are not paid on the due
date (without prejudice to the rights of the principal under this agreement) carry
interest from day to day at the annual rate of
per cent over the current bank
daily base rate with a minimum of
per cent per year.
10.
Receipt
The receipt of money by either of the parties does not prevent either of them from
questioning the correctness of any statement in respect of such money.
11.
Force Majeure
11.1
Both parties will be released from their respective obligations in the event of
national emergency, war, prohibitive governmental regulation, or if any other
case beyond the reasonable control of the parties or either of them renders
the performance of the agreement impossible where:
11.1.1 all money due under this agreement must be paid immediately; and
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11.1.2 the agent must forthwith cease carrying on the business provided that
this clause only has effect at the discretion of the principal except
when such event renders performance impossible for a continuous
period of not less than 12 calendar months.
12.
Severance
If any provision of this agreement or these conditions is declared by any judicial or
other competent authority to be void, voidable, illegal or otherwise unenforceable or
indications to that effect are received by either of the parties from any competent
authority the parties must amend that provision in such reasonable manner as
achieves the intention of the parties without illegality or at the discretion of the
principal it may be severed from this agreement or the remaining provisions of this
agreement remain in full force unless the principal in the principal’s discretion
decides that the effect of such declaration is to defeat the original intention of the
parties in which event the principal is entitled to terminate this agreement by 30
days’ notice to the agent and the provisions of clause 6 shall apply accordingly.
13.
Whole agreement
The agent acknowledges that this agreement and these conditions contain the
whole agreement between the parties and it has not relied upon any oral or written
representation made to it by the principal or its employees or agents and has made
its own independent investigations into all matters relevant to the business.
14.
Prior agreements
This agreement supersedes any prior agreement between the parties whether
written or oral and any such prior agreements are cancelled as at the
commencement date but without prejudice to any rights which have already accrued
to either of the parties.
15.
Discretion
Any decision, exercise of discretion, judgment or opinion or approval of any matter
mentioned in this agreement or arising from it is only binding upon the principal if in
writing and are at its sole discretion unless otherwise expressly provided in this
agreement.
16.
Change of address
Each of the parties must give notice to the other of the change of address or
telephone telex or similar number at the earliest possible opportunity but in any
event within 48 hours of such change or acquisition.
17.
Notices
Any notice to be served on either of the parties by the other are to be sent by
prepaid recorded delivery or registered post or by telex or by electronic mail and are
deemed to have been received by the addressee within 72 hours of posting or 24
hours if sent by fax or email.
18.
Headings
Headings contained in this agreement are for reference purposes only and should
not be incorporated into this agreement and are not taken to be any indication of the
meaning of the clauses and sub-clauses to which they relate.
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19.
Joint and several
All agreements on the part of either of the parties which comprises more than one
person or entity are joint and several and the neuter singular gender throughout this
agreement shall include all genders and the plural and the successors in title to the
parties.
20.
No partnership
The parties are not partners or joint venturers nor is the agent able to act as agent
of the principal except as authorised by this agreement.
21.
Assignment
This agreement and all rights under it may be assigned or transferred by the
principal.
22.
Jurisdiction
22.1
This agreement is governed by the laws of
in every particular including
formation and interpretation and is taken to have been made in
.
22.2
Any proceedings arising out of or in connection with this agreement may be
brought in any court of competent jurisdiction in
.
22.3
The submission by the parties to such jurisdiction does not limit the right of
the principal to commence any proceedings arising out of this agreement in
any other jurisdiction it may consider appropriate.
22.4
Any notice of proceedings or other notices in connection with or which would
give effect to any such proceedings may without prejudice to any other
method of service be served on any party.
22.5
In the event that the agent is resident outside
its address for service in
is the address for such service nominated in the parties clause of this
agreement and any time limits in any proceedings are not to be extended by
virtue only of the foreign residence of the agent.
22.6
Rights cumulative — all rights granted to either of the parties are cumulative
and no exercise by either of the parties of any right under this agreement
restrict or prejudice the exercise of any other right granted by this agreement
or otherwise available to it.
22.7
Survival of terms — no term survives expiry or termination of this agreement
unless expressly provided.
22.8
Waiver — the failure by the principal to enforce at any time or for any period
any one or more of the terms or conditions of this agreement is not a waiver
of them or of the right at any time subsequently to enforce all terms and
conditions of this agreement.
22.9
Costs — each of the parties must pay their costs and expenses incurred by it
in connection with the negotiation and preparation of this agreement.
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EXECUTED as an AGREEMENT on the date first written above at the head of this
document.
EXECUTED by
Signature of Witness
Name of Witness
`
Signature of
(Please print)
EXECUTED by
Signature of Witness
Name of Witness
Signature of
(Please print)
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SCHEDULE 1
SCHEDULE 2
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