AGENCY AGREEMENT
This Agreement made and entered into on this
E)th day of May 2009, by and between KB TRADING CORPORATION, a corporation duly
organized and existing under the laws of the Republic of Korea, having its
principal place of business at #630, Janggye-ri, Hwaseung Myeun,
Cheungyang-Gun, Chungcheongnam-Do, Korea, the Republic of Korea, (hereinafter
referred to as the "Company") and PT SHALOM KITA ABADL a corporation
duly organized and existing under the laws of INDONESIA, having its principal
office at KOMPLOK SATRUDAL JL, RAYA HANKAM, JAKARTA INDONESIA 17414, (hereinafter
referred to as the "Agent").
WITHNES
SETH:
WHEREAS, Company desires to appoint Agent on
a/an (exclusive/non-exclusive) basis to assist and promote its sales activities
in INDONESIA and Agent desires to provide such assistance and services to
Company.
NOW, THEREFORE, in consideration of the mutual
covenants contained herein, the parties hereto agree as flows:
Article
1. (Appointment of Agent)
1.1 The Company hereby appoints the Agent as its
(exclusive/non-exclusive) agent in the territory specified in Schedule A
attached hereto (hereinafter referred to as "Territory"), for the
sale of the products as specified in Schedule B hereto (hereinafter referred to
as "Products").
Schedule
A and B may be amended by mutual written consent of the parties.
1.2 The Agent shall not, in the Territory, deal
in any products and/or goods, nor shall it represent any other suppliers or
manufacturers of any products and/or goods, which are in the opinion of Company
similar to or competitive with the Products to be supplied or manufactured by
Company pursuant hereto.
1.3 It is hereby expressly agreed and declared
by and between the parties hereto that all customers heretofore or at any time
hereafter called on by or introduced to the Agent are customers of the Company
and are not customers of the Agent nor has the Agent any proprietorial interest
therein or in any list of such customers.
Article
2. (Duration)
This Agreement shall continue in full force and
effect from the date on which it is signed by both parties hereto, until 12th
May 2010 Upon expiration of the said term, this Agreement shall be
automatically renewed, unless no later than thirty (30) days prior to the date
on which this Agreement would otherwise be extended a party gives written
notice of termination to the other party hereto, and shall continue thereafter
in full force and effect until terminated at any time by either party giving
the other three(3) month notice in writing to terminate this Agreement.
Article
3. (Duties of Agent)
3.1 Best
Efforts
The Agent shall during the continuance of this Agreement
diligently and faithfully serve the Company as its agent and shall undertake to
use its best endeavors to maximize the sale of the Products in the Territory
and shall maintain and safeguard the goodwill, reputation, prestige and
interest of the Company and shall not do anything that will prevent such sale
or interfere with the development of the trade in the Territory.
3.2 Price
and Sales (Promotion)
(1) The Company may
from time to time furnish the Agent with a -statement of the minimum prices at which
the Products are respectively to be sold, and the Agent shall not solicit
orders or offer the sale of the Products at less than such minimum prices
unless it has first obtained the Company's express authorization to vary such
prices, but shall endeavor in each case to obtain the best price obtainable.
(2) The Agent may
not be entitled to sell any of the Products to any person or company residing outside the Territory except with the Company’s
prior written consent.
(3) The Agent shall
not give credit to or deal with any person, company or firm which the Company
shall from time to time direct the Agent not to give credit to or deal with.
(4) The Agent shall
keep the Company fully informed from time to time of market condition within
the Territory for the Products and of activities and prices of competitors and
provide any available information relevant for the purpose of furthering the
sale of the Products. The Agent shall render to the Company, during the term of
this Agreement and thereafter, such assistance as the Company may reasonably
require in receiving, collecting, recovering or suing for payment due from
purchases of the Products under orders solicited by the Agent.
3.3 Order
(1) The Agent agrees that it shall promptly
advise the Company of any enquiries or orders for the Products whether within
or outside the Territory which may from time to time be received by the Agent
and upon receipt by the Agent of any order for the Products the Agent shall
immediately transmit such order to the Company.
(2) If the Company decides to proceed with any
such enquiry or order it shall forward directly to the customer an
acknowledgement of the order for such Products. In cases where the Products are
to be delivered in the Territory, the Company shall forward to the Agent a
duplicate copy of the invoice sent with the Products to the customer and in
like manner shall from time to time inform the Agent when payment is made by
the customer to the Company.
(3) The Agent shall duly keep an account of all
orders obtained by it and shall on or before the 10th day of every month send a
copy of such account for the immediately preceding month to the Company.
(4) The Company
shall use its best endeavors consistent with its other demands and business to
meet any and all orders or enquiries for the Products received through or from the Agent but nothing herein contained shall
impose upon the Company any obligation to accept or fulfill any order in any
case where the Company considers it inexpedient or inconvenient so to do or
entitle the Agent to accept any order on behalf of the Company. Refusal by the
Company of any order in whole or in part shall not incur any liability to the
Agent, its officers or employees or any other person.
3.4 Payment
(1) The Agent shall cause any customer to open
with an international first class bank acceptable to the Company an irrevocable
letter of credit in favor of the Company in an amount equal to the sum of the
agreed purchase price of the Products to be delivered to the customer and the
amount of commission to be paid by the Company to the Agent in connection with
the sale of such Products. In the event that a customer is unable to and/or
fails to open a letter of credit, the Agent shall open such letter of credit or
T/T remittance in favor of the Company in the same amount as specified above,
in which case the Agent shall be reimbursed from the customer.
(2) The Agent shall not without the written
consent and the authority of the Company collect any monies from any customers.
3.5 Office
and Staff
The Agent shall establish, employ and maintain appropriate
offices and staff for the purpose of its duties hereunder and all costs and
expenses incurred by the Agent hereunder shall be borne and paid by the Agent.
3.6 Confidentiality
The Agent shall keep secret and shall not disclose to any
third party (including, but not limited to, individuals, firms or companies)
any confidential information disclosed to it by the Company to enable the Agent
to perform its duties under this Agreement, and upon termination of this
Agreement for any reason whatsoever, the Agent shall not at any time thereafter
use any confidential information so disclosed during the currency of this
Agreement. Upon termination of this Agreement, the Agent shall, at its expense,
promptly return to the Company all information and literature relating to the
Products and the Company including but not limited to price lists, samples,
documents and through or from the Agent but nothing herein contained shall
impose upon the Company any obligation to accept or fulfill any order in any
case where the Company considers it inexpedient or inconvenient so to do or
entitle the Agent to accept any order on behalf of the Company. Refusal by the
Company of any order in whole or in part shall not incur any liability to the
Agent, its officers or employees or any other person.
3.4 Payment
(1) The Agent shall cause any customer to open
with an international first class bank acceptable to the Company an irrevocable
letter of credit in favor of the Company in an amount equal to the sum of the
agreed purchase price of the Products to be delivered to the customer and the
amount of commission to be paid by the Company to the Agent in connection with
the sale of such Products. In the event that a customer is unable to and/or
fails to open a letter of credit, the Agent shall open such letter of credit or
T/T remittance in favor of the Company in the same amount as specified above,
in which case the Agent shall be reimbursed from the customer.
(2) The Agent shall not without the written
consent and the authority of the Company collect any monies from any customers.
3.5 Office
and Staff
The Agent shall establish, employ and maintain appropriate
offices and staff for the purpose of its duties hereunder and all costs and
expenses incurred by the Agent hereunder shall be borne and paid by the Agent.
3.6 Confidentiality
The Agent shall keep secret and shall not disclose to any
third party (including, but not limited to, individuals, firms or companies)
any confidential information disclosed to it by the Company to enable the Agent
to perform its duties under this Agreement, and upon termination of this
Agreement for any reason whatsoever, the Agent shall not at any time thereafter
use any confidential information so disclosed during the currency of this
Agreement. Upon termination of this Agreement, the Agent shall, at its expense,
promptly return to the Company all information and literature relating to the
Products and the Company including but not limited to price lists, samples,
documents and papers that may have been supplied to the Agent by the Company.
Neither expiration of this Agreement nor earlier termination hereof for any
reason of whatsoever shall release the Agent from any of its obligations set
forth in this paragraph 3.6.
3.7 Qualification
to do Business
The Agent shall make such filings and take such actions as
may be required to qualify to do business under all applicable state and local
laws in order to perform the services contemplated by this Agreement on behalf
of the Company forwarded by the Agent to the Company, where such Products are
to be delivered by the Company to a location within the Territory, and/or the
customer's address, from which such order or enquiry was received, is located
in the Territory.
4.3 Any commission stipulated and paid hereunder
shall be deemed to cover all the costs, fees, charges and other expenses
incurred by the Agent in connection with the respective sale of the Products.
4.4 All commissions payable to the Agent
hereunder shall be due and payable by the Company within ( ) from the time when the Company has
finally been
relieved of or exempted from any responsibility of repayment after the Company has negotiated the Letter of Credit issued by the customer or the Agent, as the case may be, in favor of the Company.
relieved of or exempted from any responsibility of repayment after the Company has negotiated the Letter of Credit issued by the customer or the Agent, as the case may be, in favor of the Company.
4.5 Upon termination of this Agreement, the
Agent is only entitled to receive the commission in respect of sales resulting
from orders received by the Company up to the date of such termination, for
which payment is subsequently made to the Company pursuant to this Agreement.
No further amounts, for indemnification or otherwise, shall be payable by the
Company to the Agent or to the Agent's officers, employees or subagents upon or
after termination of this Agreement.
Article
4. (Minimum Sales)
4.1 The Agent shall procure orders or enquiries
from customers and/or purchasers located in the Territory for the minimum
delivery of Products in the Territory resulting in the relevant periods as
follows:
|
No
|
PERIOD
|
MINIMUM
SALES AMOUNT
|
|
1
|
The First (Contract/Calendar) Year
|
US$ 500,000.-
|
|
|
|
|
|
2
|
The Second (Contract/Calendar) Year
|
US$ 700,000.-
|
|
|
|
|
|
3
|
Each (Contract/Calendar) Year
|
USS 1,000,000
|
|
Thereafter
|
|
4.2 Periodic evaluation of the Agent's sales
activities is made by the Company at the end of contract/calendar year to check
achievement by the Agent of the minimum sales as specified in Paragraph 4.1
above.
Article
5. (Warranties)
5.1 At all times when the Agent advises the
Company of any enquiries or orders for the Products in accordance with this
Agreement the Agent shall be deemed to warrant that the customers are, to the
best of its knowledge and belief, of commercial repute and financial stability
and in particular that, if as a result of acceptance of such customers, such
customer is worthy of the relevant period of credit to be granted by the
Company. The Agent shall supply the Company with details of any changes in
credit worthiness of existing customers. In any event the Company has the right
to refuse any enquiries or orders if it is not satisfied with the credit
worthiness of the proposed customer, and in such case, the evaluated amount
under the said enquiries or orders refused by the Company shall not be counted
to satisfy the minimum annual sales as specified in Paragraph 5.1
5.2. Nothing contained
herein shall be construed to give any right or interest to the Agent in any
trademark or trade name of the Company, except that Agent may use the trade name "SSEDA and 33 LUXKING solely for the
purpose of procuring orders for and sales of the Products in accordance with
this Agreement. The Agent agrees that any and all patent rights, trademarks,
trade names, copyrights and other property rights in and with respect to the
Products are and shall remain exclusively the property of the Company and its
affiliates. Agent shall immediately report to the Company any infringement by
third parties of any such patents, trademarks, trade names, copyrights and
other property rights in the Territory. Upon termination and/ or expiration of
this Agreement for any reason whatsoever, the Agent shall promptly discontinue
every use of such trade name and any language permitted for use under this
Agreement.
Article
6. (Advertisement)
6.1 The Agent shall, at its own expense, display
advertising, distribute promotional or descriptive literature of information,
conduct marketing, or make representations concerning the Products in the
Territory, all of which shall have first been approved by the Company.
6.2 The Agent shall comply with any reasonable
requests made by the Company for modification of advertisement if the Company
is not satisfied with such advertisements.
6.3 If requested by the Agent, the Company
agrees to provide the Agent at a cost price with reasonable quantities of all
catalogues and advertising materials relating to the Products which the Company
may from time to time publish; provided, however, that upon termination of this
Agreement for whatever cause, the Agent shall promptly return to the Company
all such catalogues and advertising materials provided by the Company.
Article
7. (Maintenance of Stock)
7.1 The
Agent agrees to maintain an adequate inventory of the Products so as to be able
at all time to provide samples to prospective customers.
7.2 The Company shall grant the Agent 30days of
credit for the payment by the Agent for the Products supplied to Agent as said
sample inventory by the Company.
Article 8. (Status of the Agent)
8.1 Nothing herein contained shall constitute a
partnership between the parties or entitle the Agent to hold itself out as
being anything other than the Agent of the Company or entitle the Agent to
enter into any obligation or commitment binding upon the Company without the
prior written consent of the Company which the Company shall be under no
obligation to give.
8.2
Nothing herein contained shall
constitute any authority to the Agent to negotiate, settle or compromise any
claims or disputes on behalf of the Company
relating to the Products.
8.3 The Agent agrees that it has no authority to
make or give and shall not to make any representation or give any guarantee or
warranty in respect of the Products other than such as the Company may from
time to time in writing expressly authorize.
8.4 This Agreement is personal to the Agent who
is not entitled to assign, dispose of, mortgage, charge or otherwise encumber
its rights and duties or benefit under this Agreement.
8.5 The Agent shall indemnify, protect and save
the Company from all claims, demands, suits or actions for damages to property
or person which may be sustained by any third party arising from or incident to
the conduct or the business of the Agent.
Article 9. (Termination)
9.1
This Agreement may be terminated by a
30 days’ notice in writing given by the Company to the Agent upon the occurrence of any of the following
events:
(a) If the Agent
becomes bankrupt, or
(b) If the Agent
makes any composition or enters into an arrangement with his creditors, or
(c) If the Agent has
any distress or execution of the like levied upon any of its goods or effects,
or
(d) If the Agent
fails to achieve the minimum sales target as specified in Article 5 hereof or
performs or engages in sales activities unsatisfactory to the Company, or
(e) If the Agent
commits a breach of or fails to perform or observe any agreement or conditions
herein contained and on the part of the Agent to be performed or observed, and
shall not have remedied such breach or failure to perform or observe within 30
days of a notice requiring the remedy of such breach or failure to perform or
observe.
(f) If any
circumstances occur which in the opinion of the Company give grounds for belief
that the Agent may not able to perform its obligations hereunder.
9.2 In case Agent fails to achieve the minimum
sales target as specified in Article 4 hereof, for any reason other than solely
attributable to the Company, the Company has the option to terminate this
Agreement, and/or to request the compensation with respect to all damages
including but not limited to the loss of sales opportunity, expressed and/or
implied, arising from its non-attainment of the minimum sales target.
Article
10. (Settlement of Dispute and Governing Law)
10.1 Should any dispute arise as to the amount of
commission payable by the Company to the Agent the same shall be settled by the
auditor for the time being of the Company whose certificate shall be final and
binding on both the Company and the Agent.
10.2 Except otherwise provided in Paragraph 10.1 here
above, all questions, disagreements or disputes whatsoever which shall at any
time hereafter arise between the parties hereto touching or concerning this
Agreement or the construction, meaning, operation or effect thereof, or of any
clause herein contained, or as to the rights, duties or liabilities of the
parties shall be finally settled by the arbitration. The arbitration shall be
conducted by three (3) arbitrators in Seoul, the Republic of Korea, in
accordance with the Commercial Arbitration Rules of the Korean Commercial
Arbitration Board and shall be conducted in the English language. The award
rendered by the arbitrators shall be final and binding upon both parties.
10.3 This
Agreement shall be interpreted and governed by the laws of the Republic of
Korea.
Article
11. (Miscellaneous Provisions)
1.
Notices
Any notice required or permitted to be given hereunder
shall be in writing, and may be given by personal service, registered airmail,
or by cable or telex if confirmed on the same day in writing by registered
airmail, with postage prepaid to the following addresses:
To the Company :
Telex :
Cable :
Fax :
+82 41 942 7864
To the Agent
Telex :
Cable :
Fax :
+62 21 8499 5561
Any notice so given shall be deemed to be received, if sent
by letter, upon receipt or 30 days after posting, whichever is earlier, or if
sent by telex or cable, twenty-four (24) hours after dispatch.
2.
Entire
Agreement-Amendment
This Agreement constitutes the entire understanding of the
Company and the
Agent with respect to the subject matter hereof. No amendment, modification or alteration of any term of this Agreement shall be binding on either party unless the same shall be made in writing, and executed by or on behalf of the parties hereto.
Agent with respect to the subject matter hereof. No amendment, modification or alteration of any term of this Agreement shall be binding on either party unless the same shall be made in writing, and executed by or on behalf of the parties hereto.
3.
No
Assignment-Succession
This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors.
No assignment of this Agreement shall be valid without the
prior written consent of the other party hereto.
4.
Waiver
All waivers hereunder shall be made in writing, and the
failure of any party at any time to require the other party's performance of
any obligations under this Agreement shall not affect the right subsequently to
require performance of the obligation. Any waiver of any breach of any
provision of this Agreement shall not be construed as a waiver of any
continuing or succeeding breach of such provision or a waiver or modification
of the provision.
5.
Severability
If any one or more of the provisions contained in this
Agreement shall be declared invalid, illegal or unenforceable in any respect
under any applicable law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired, and in such ease the parties hereto oblige themselves to reach the
purpose of the invalid provision by a new, valid and legal stipulation.
6.
Headings
The article or section headings hereof are included for
purposes of convenience only and do not affect the construction of any
provision of this Agreement.
7.
Counterparts
This Agreement may be executed in any number of
counterparts. Any single counterpart or set counterparts signed by the parties
hereto shall constitute one original Agreement for all purpose.
8. English
For the purpose of communication this Agreement may be
translated into another language, but this Agreement, which is executed in the
English language, shall be only binding version.
9. Governmental Approval
In the event that approval with respect to this Agreement,
or the registration hereof, shall be required initially or at any time during
the term of this Agreement, in the Territory, the Agent shall immediately take
whatever steps may be necessary to comply with such requirements, and any
charges incurred in connection therewith shall be for the account of the Agent.
The Agent shall keep the Company informed of the Agent's efforts in this
connection. The Agent shall advise the Company of any approvals of the Product
required in the Territory, and such approvals, where feasible, shall be
obtained in the Company's name. The Agent shall at all times comply with all
laws, requirements, and regulations of the government of the Territory
affecting or relating to this Agreement.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed by their respective duly authorized
officers on the date first written above.
KB TRADING CORPORATION PT. SHALOM IUTA ABADI
BY : BY
:
NAME : Ki Tae Kim NAME
: Byung Joo Lee
TITLE : President TITLE : President
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