Agency Agreement in Accordance with EU Competition Law - Coursework Example

Agency Agreement in Accordance with EU Competition Law I am outlining the factors based on which the agreement has been drafted / edited. The important or the core aspects governing the agreement are underlined for better understanding and it should be ensured that all the terms and conditions of the agreement in final part should invariably confirm to these basic criteria. The European Commission has revised its competition rules and finalised regulations on "Vertical Restraints" in relation to the Block Exemption Regulations. These guidelines form the basis for competition policy towards "vertical agreements". The agreements for the sale or purchase of goods or services between companies and distribution chain are to be governed by these regulations. The new regulations covers supply agreements such as exclusive and selective distribution agreements, franchising agreements and single branding agreements. It is in line with the policy of modernization of the rules on competition. The new rules would come into force with effect from 1st June, 2010, and the new rules with regard to Block Exemption Regulations related to exclusive distribution and exclusive purchasing would be applicable from this date. These rules would be implemented in coordination with the member countries of EU. The new regulations pave way for wider scope in application which also seeks to exempt small and medium enterprises which do not have significant impact in distorting the overall market conditions. This would benefit the companies whose market share is below 30% under the concept of ‘safe harbour’. The agreement under consideration is with regard to a company in the textile industry for exclusive distribution of its products. This is the core industry touching the needs of all the people of the society with large number of small and big players. There are varieties of special categories of products such as Chinese silk, Indian Silk, handlooms, hosieries made of Egyptian cotton with varied designs, texture and use available for the discerned customers. Therefore, it can be safely stated that the Company would come under the safe harbor provision with regard to the agreement under consideration. In view of the above facts of the case, the company is free to enter into agreement with the distributor for the supply of its products, promotion of such products, procedural aspects related to the business, etc. However, this freedom is subject to two sets of restrictions stipulated by the regulations. Any condition that seeks to fix prices at which the distributer sells the product is not allowed under the regulations. However fixing the maximum price and recommended price for resale is permissible. Regarding ‘recommendation’, it could be understood that the distributer is not legally bound for its compliance, as it is only recommended and not a condition. Fixation of ‘Maximum’ resale price is in the interest of the consumers only for obvious reasons. The distributor is restricted from making unreasonably high profits on resale of the products, which might result, for example, due to shortage of the product in the market, especially in the case of products newly introduced in a particular market. The arrangement should not restrict the freedom of the distributer in selling the products against unsolicited order from, within the community. It should not in any way restrict the Distributor to respond to the orders received through internet. In the agreement under the consideration, it may be explicitly specified that the sales through internet for the orders received online are excluded. The implied meaning here is that the Distributor should not solicit order through internet. Due to the question of interpretation at a later stage, in the absence of any decided cases, it is always safer in such cases to introduce the condition which is ‘implied’ in favor of the Principal. In any way, the regulations are in favour of the ‘Internet’. However, by including it specifically the Principal could define the role of the Distributor in sales through internet. At the same time the Principal would also be in a position to directly use Internet for sale in UK as well. In the case of selective distribution the producer may not restrict selling by authorized distributors to the consumers or other the authorized distributor. The agreement under consideration is with reference to Exclusive Distributors for resale. The violation of the regulations with regard to the above in the implementation of any agreement can attract fines and damages. ­Under some circumstances, with reference to non-compete obligations, certain restrictions which are not exempted by the new regulations may be viewed for its compatibility, if they are in line with the spirit of the regulations and in terms of duration of the agreement. Agreements for resale by the Distributors for any period exceeding 5 years to resell exclusively, the brands of one supplier are not covered by the Block Exemption Regulations. The agreement under consideration therefore is covered by the Block Exemption Regulations. As far as breach of any contract is concerned, the position in common law is very clear and any breach of contract is neither protected by EU Competition Laws. Regarding compensation in respect of termination, the Court ruled: “Article 3(6) of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector is to be interpreted as meaning that the mere fact that an agreement falling within the scope of that regulation contains an express termination clause, such as that at issue in the main proceedings, under which such an agreement can be terminated by the supplier as of right and without notice in the event of a breach by the distributor of one of the contractual obligations referred to in that clause, does not have the effect of rendering the block exemption provided for in Article 2(1) of that regulation inapplicable to that agreement. (City Motors Groep NV vs. Citroën Belux NV (2007)The spirit behind the new regulations is to remove the hurdles in the business of SME, whose market power is very limited in terms of market share or ability to distort the market conditions in their favour is insignificant.” The agreement incorporates wherever necessary, the explanations to the terms and conditions, specifically highlighting its need for effective administration. (implying not relative to competition). The spirit behind the new regulations is to remove the hurdles in the business of SME, whose market power is very limited in terms of market share or ability to distort the market conditions in their favour is not significant. Reference: City Motors Groep NV vs. Citroën Belux NV, JUDGMENT OF THE COURT (Third Chamber) 18 January 2007, Available at http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79929881C19050421&doc=T&ouvert=T&seance=ARRET, Accessed on 12 May 2010. THIS AGREEMENT is made on the 1st day of June, 2010 BETWEEN (1) Silvio Sartori SpA (“SSS”) (“the Principal”); and (2) ABC Limited (“ABC”) (“the Agent”) BACKGROUND The Principal manufactures the products and the Agent is responsible for the sale of the Principal’s goods as an ‘Exclusive Reseller in UK’. This agreement is finalised after a series of meetings with the Agent, and the terms are offered, considering the capital expenses involved in promotion of the products in UK, which involves initial market survey, advertisements and the efforts in educating the consumers with regard to its utility, durability, comfort and aesthetic values with reference to the superior quality products with ‘value’ for investment.. The Agent is the exclusive agent for the promotion and sale of the products within the Territory (United Kingdom), as defined below. 1 AGREED TERMS The following definitions and rules of interpretation pertain to and are applicable to the clauses outlined in this agreement. 1.1 The agreement shall come into force on 1st June, 2010, subject to acceptance of ‘the Agents’ of their responsibilities and obligations. 1.2 Confidential Information: Information communicated and exchanged between both parties concerning the nature of the Products and trade secrets and commercial value of the products herein. 1.3 General Conditions and Operation Procedures: The Principal’s conditions and operational procedures stipulated over the selling arrangement, pricing, territory, and any affairs concerning the Agent and the Principal’s product are guided by the factors, ‘value to the customers’ and ‘transparency in dealings’. In view of the Principal’s entry to United Kingdom market, for the first time, this involves certain "first-time investments" by the Agent as a distributor to establish the brand in the market; the conditions and procedures with regard to price, selling arrangements and minimum volume criteria are necessary to ensure reasonable price and higher level of service to the consumers. This will also enable SSS to create a brand image and thereby attract consumers. 1.3.1 Intellectual Property: Any patent or copyright concerning the product, as well as the trade mark owned by the Principals, with regard to its protection or infringement thereof within the territory, the Agents’ responsibility as far as the territory is concerned is at par with that of the Principal. 1.3.2 Local Regulations: This is with regard to the Laws governing the Products within the Territory. In view of the above clause, in the event of disputes or a question with reference to law, consequently the liabilities, it shall be understood that the responsibility of the ‘Agent’ is at par with that of the Principals, if not more. 1.3.3 Minimum Sales Target: In relation to each Year, the minimum customer sales target is set out in Schedule 3. Failure to meet this target will result in the termination of this agreement. Since the prices have been fixed based on the sales projections given by the ‘Agents’ already, the minimum sales target is fixed in terms of break-even levels, which has been only lower than or equal to the projections.. Hence, it is imperative that the validity of the agreement hinges on basic criterion. 1.3.4 Net Price: The Principal is not prescribing the price at which the product should be sold to the customers. 1.3.5 Products: the goods manufactured by the Principal and described in Schedule 1, where the Principal gives the Agent permission, by express notice in writing, to promote their Product and sell within the territory. 1.3.6 Territory: For the purposes of this Agreement shall relate to the United Kingdom. However, this territorial restrictions shall not be applicable to the unsolicited online orders received receive by the Agents through internet. 1.3.7 Year: Period of twelve (12) months from Date of Commencement of this Agreement. 2 BASIS OF APPOINTMENT 2.1 The Principal appoints the Agent to be the exclusive reseller of the Products to customers within the Territory, and the Agent agrees to uphold this responsibility and act accordingly subject to the conditions outlined in this Agreement. 2.2 The Principal agrees that it shall not appoint any other person as agent, or, re-seller for the Products in the Territory for the duration of one year upon which this Agreement is terminable on 12 months’ notice. 2.3 Once the Agent has been given the rights as exclusive reseller of the Products, the Principal shall not be entitled to solicit orders for Products from any other person inside the Territory. This shall not be applicable to the Customer List forming part of this agreement with whom, the Principals have been dealing for a longer time, supplying the products. Additionally, this shall not be applicable to the sales by the Principals through internet within the territory. 3 DUTIES OF THE AGENT1 3.1 During the currency of this Agreement the Agent will:2 3.1.1 act diligently and in good faith in all its dealings with the Principal, Customers and prospective Customers; 3.1.2 the Agent is responsible for the promotion and marketing of the new products within the Territory and for the purposes of this clause, the Agent shall be deemed not to have complied with this duty where during the period of 12 months specified elsewhere in this agreement, from the Commencement Date or until termination of this Agreement, whichever occurs first he acts as agent or distributor save where the Principal’s prior consent has been obtained (such consent not to be unreasonably withheld or delayed, keeping in view the special attributes of the products, but not relative to placing them or whomsoever concerned, at a competitive disadvantage; and the primary reasons are either one, some of them or all of the following: it improves the production or distribution of goods or promotes technical or economic progress; it allows consumers a fair share of the resulting benefit; the restriction of competition are necessary to achieve the objectives referred above; it is in no way eliminate competition for a substantial proportion of the products or services.);3 3.1.3 sell the products by entering into contracts in the name and on behalf of the Principal on the Terms and Conditions and in the course of dealing with all Customers and prospective Customers, and bring to their notice the Terms and Conditions;4 3.1.4 as soon as reasonably practicable, but, within 7 (seven) days after receipt, submit to the Principal all enquiries and orders obtained for the Products in the Territory and from customers on the customer list; and also the enquiries and orders obtained for the products online thorough internet. This is in fact not prohibitive in nature, but, by way of collection of data pertaining to the product, and offer suggestions and guidance in relation to the execution or enhancement of awareness on the part of the customers, of the product, or making arrangements necessary for the customers, to facilitate their interaction, if necessary, with the Principals with a view to better after sales service, keeping in view the long term relationship for the benefit of the Principal as well as the Agents. 3.1.5 the Agent must comply with the Principal’s request to carry a range of product sample and handle customers complaints. They shall also ensure the safe collection of defective goods from customers and returning them to the Principal. Any delay on the part of the Agents will be viewed seriously, and the damages which may eventually result on account of such delay would be passed on to the Agents. What is ‘reasonable’ would depend upon the circumstances and merits of the case individually and, if it is proved that the defect is not attributable to the quality of the material, but due to extraneous reasons such as packaging by the distributors, mishandling by the transporters, acts of God, delay in delivery due to any other reasons, etc. the Agent accepts the responsibility. 3.1.6 subject to clause 3.2, ensure that all sales of the Products by the Agent on behalf of the Principal shall be entered into at the price specified in the price lists which shall from time to time be supplied to the Agent by the Principal, subject to such discounts and other deductions as the Principal may allow;5 However, in any case, the Agent should not sell any product of the Principal at a price higher than the ‘Maximum Price’ as specified by the Principals. Any breach of this condition may result in cancellation of the agreement, on proof of such sales over and above the maximum price specified by the Principals. 3.1.7 provide such information as the Principal may reasonably require, and in any event not less than once in every [3] months submit a marketing and sales report giving general information in relation to all matters that may be of interest to the Principal in connection with the promotion, marketing and sale of Products in the Territory and to the customers in the customer list save that nothing in this clause shall require the Agent to disclose the terms of any agreements entered into under clause 3.26 3.1.8 make clear to all Customers and prospective Customers in the course of dealing with them that he is the Agent of the Principal only to the extent provided for in this Agreement; permit or procure permission for the Principal and its duly authorised agents at all reasonable times to enter upon any premises of the Agent for the purpose of ascertaining whether the provisions of this Agreement have been and are being complied with by the Agent and to allow the Principal and its duly authorised agents to inspect and take copies of the Agent’s records (including those kept in accordance with clause 8.1 and clause 3.1.11) and books of account save that nothing in this clause shall require the 3.1.9 Agent to disclose the terms of any agreements entered into under clause 3.2 and these rights shall continue for a period of 12 months following termination of this Agreement;7 3.1.10 attend such meetings and marketing events as are reasonably required by the Principal at the Agent’s expense; The Agent being a company, in order to meet certain obligations under this agreement to be carried out by individuals such as directors or employees - e.g. attending meetings, marketing events etc., may appoint or nominate representative of the company to carry out these requirements to be set out in the Agreement. Proper authority letter with regard to the appointment / nomination, and an attested copy of the board resolution in this connection would form part of this agreement. 3.1.11 obtain and maintain during the currency of this Agreement all necessary licences, consents and registrations at the Agent’s expense for stocking of the consignments of the products, the sale of the Products in the Territory and to customers on the Customer List, insurance thereof (insuring the stock for fire and other damages) as may be necessary to protect the interests of the Principal; 3.1.12 comply with all laws in the Territory relating to the sale and marketing of the Products and notify the Principal of any changes in these laws which could affect the sale and marketing of the Products;8 3.1.13 in the event of any claim, complaint or dispute being made or arising by or with a Customer in the Territory in respect of any of the Products, notify promptly the Principal and comply with any instructions given by the Principal in relation to such claim, complaint or dispute; 3.1.14 make itself available to the Principal for the purposes of consultation and advice relating to this Agreement and the Products; 3.1.15 attend meetings with representatives of the Principal and such Customers or prospective Customers in the Territory as may be necessary for the performance of the duties under this Agreement; 3.1.16 make such calls upon Customers or potential Customers in the Territory as are reasonable for the purposes of promoting and marketing the Products; 3.1.17 in all dealings concerning the Products describe itself as a sales agent for the Principal; 3.1.18 Undertakes to perform all the other duties with reference to common law as an Agent owes to the Principal viz. Obey lawful instructions, only to act within the agent’s authority; to use reasonable diligence and care; not to have interests which conflict with those of the Principal; to disclose all material facts to the Principal; to refrain from divulging confidential information; not to make a secret profit or accept bribes; to account to the Principal for property or money of the Principal which is under the Agent’s control; not to delegate the Agent’s authority, under the circumstances in general, if it is not specifically provided for in this agreement elsewhere. 3.2 Nothing in this Agreement shall prevent the Agent from entering into any arrangement to share with any or all of the commission payable to the Agent under clause 7.9 4 PROHIBITIONS ON AGENT4 4.1 During the currency of this Agreement the Agent will not:10 4.1.1 do anything which will harm the reputation of the Principal; 4.1.2 manufacture, purchase, sell, resell, or enter into any agency or distributorship arrangement with any third party for, products which compete directly with the Products for a period of 12 months.11 4.1.3 pledge the credit of the Principal in any way or bind or attempt to bind it by contract or otherwise, or make any promises, representations, warranties or guarantees in respect of the Products except those expressly authorised by the Principal in writing or set out in the Terms and Conditions;12 4.1.4 use any marketing or promotional materials or attend any marketing events with respect to the Products which have not been approved by the Principal in writing, and such approval not to be unreasonably withheld or delayed; 4.1.5 modify or alter the Products or their packaging in any way; except for division of the consignment into saleable units in connection with sale to the customers, in the case of common packaging of consignment from the Principal meant for delivery to two or more customers specified or unspecified, or in the case of consignments for the purpose of stock at the instance of the Distributor, for sale at a later date to the customers against orders to be received. 13 4.1.6 in the course of performing the services contemplated by this Agreement do any illegal act; or 4.1.7 misuse such promotional and marketing materials or training provided by the Principal; which are considered reasonable and given at the Principal’s expense. 4.1.8 enter into partnership or other ownership arrangement either individually or along with the others for the purpose of manufacture, purchase, sell, resell, or entering into any agency or distributorship arrangement with any third party for, products which compete directly with the Products for a period of 12 months. 5 INTELLECTUAL PROPERTY145 5.1 The Principal authorises the Agent to use the Trade Marks in the Territory in relation to the Products for the purposes only of exercising its rights and performing its obligations under this Agreement. 5.2 The Agent shall ensure that each reference to and use of any of the Trade Marks by the Agent is in a manner from time to time approved by the Principal and accompanied by an acknowledgement in a form approved by the Principal (such approval not to be unreasonably withheld or delayed), that the same is a Trade Mark of the Principal. 5.3 The Agent shall not use: 5.3.1 any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of the Principal; or 5.3.2 in relation to the Products any trade marks or names other than the Trade Marks without obtaining the prior written consent of the Principal; or 5.3.3 in the Territory, any trade marks or names so resembling the Trade Marks as to be likely to cause confusion or deception. 5.4 The Agent shall not apply to register any of the Intellectual Property Rights nor any trade marks or trade names so nearly resembling the Trade Marks as to be likely to deceive or cause confusion. 5.5 The Agent shall bring any infringement to the intellectual property rights of the Principal, within the territory by any person, firm or company to the notice of the Principal for taking appropriate action, and the Agent shall extend full cooperation in the proceedings against the infringement within the territory by deputing its representatives. 6 THE REGULATIONS156 6.1 Nothing in this Agreement shall be construed as, or be deemed to be construed as an exclusion, variation or restriction, to the detriment of the Agent, of any of the mandatory rights of the Agent under the Regulations. 6.2 Without prejudice to clause 10 if and to the extent that at any time any competent court determines in a legally binding [and conclusive] manner any matters relating to the Regulations, or any part of them, which determination is inconsistent with the construction or interpretation of this Agreement then any such inconsistent provision of this Agreement shall be interpreted and construed in the light of such determination, and shall be legally binding in respect of the Agent.16 6.3 Termination or expiry of this Agreement, whether under clause 12 or otherwise, shall not entitle the Agent to any compensation or indemnity in respect of such termination or expiry except to the extent that the duties of the Agent are carried out within the European Community and the Regulations governing law of this Agreement provide(s) for such compensation or indemnity. 7 COMMISSION177 EITHER 7.1 The Agent shall, subject to clause 7.4, be entitled to receive commission at the Commission Rate on ten percent (10%) by the Principal during the currency of this Agreement 18 for all the sale in the territory except sales to the customers in the Customer List, and it is worked out based on the net price to the customer before any applicable taxes in the territory, but the price charged to the customer after taking into account, the discount, rebate, etc, if any offered to the customers. In the case of sales to the customers in the Customer List, the Agent shall be entitled to the commission at the rate of Two and half percent (2.5%) calculated on the net price to the customer before any applicable taxes in the territory, but the price charged to the customer after taking into account, the discount, rebate, etc, if any offered to the customers. 7.1.1 occurring as a result of the actions of the Agent; 7.1.2 with a person acquired by the Agent as a customer for the Products; 19 7.1.3 with any person on the Customer List, residing/domiciled in the Territory whether or not orders in respect of such contracts are obtained by the Agent subject always to clause 7.3.20 7.2 The Agent shall, subject to clause 11, be entitled to receive commission at the Commission Rate on contracts secured under the circumstances set out under clauses 7.1.1 to 7.1.3 concluded by the Principal after the termination of this Agreement if:21 7.2.1 the order was received by the Principal or the Agent during the currency of this Agreement; or 7.2.2 the contract arose directly out of efforts mainly attributable to the Agent during the currency of this Agreement provided always that in respect of this clause such contract was concluded within a period of one month following the termination of this Agreement.]22 OR 7.3 The Agent shall subject to clause 7.4, be entitled to receive commission at the Commission Rate only on contracts concluded by the Principal or the Agent during the currency of this Agreement where the contract has been concluded as a result of the Agent’s actions if.]23 7.4 Subject to the provisions of clause 7.5, if in any circumstances the Principal shall become obliged in respect of a particular order to pay commission to more than one agent (including the Agent), the commission on that order shall be apportioned by the Principal between those agents in such proportions as the Principal reasonably considers to be equitable. 7.5 The Agent will not be entitled to the commission referred to in clause 7.1 if that commission is, by virtue of clauses specified elsewhere as per this agreement payable to the previous agent, unless it is equitable because of the circumstances for the commission to be shared between them. Any sum received by the Agent to which he is not entitled shall be refunded to the Principal forthwith.24 7.6 Commission payable pursuant to this clause 7 is due when and to the extent that the Customer pays for the Product or, save for the circumstances arising under clause 7.8, when the Customer should have done so had the Principal delivered the Product in accordance with this Agreement.25 7.7 The Principal shall pay the commission due to the Agent not later than on the last day of the month following the quarter in which the commission became due and for the purposes of this Agreement the quarters shall be deemed to commence on 1 January, 1 April, 1 July and 1 October of each year.26 7.8 Notwithstanding any other provision of this Agreement the Agent’s right to commission in respect of any relevant contract will be extinguished if and to the extent that the relevant contract is not executed for a reason for which the Principal is not to blame.27 7.9 If the Agent has received commission in a case where, pursuant to clause 7.8, the Agent’s right to commission is extinguished then the Agent will refund such commission to the Principal forthwith and the Principal will be entitled to set off any sums due to the Principal against any commission due or becoming due to the Agent under this Agreement.28 7.10 Any payment of commission due to the Agent will be subject to such deductions (deduction at source) in respect of tax and any other Governmental restrictions which may from time to time be in force or applicable. 7.11 The Agent will not be entitled to commission on sales to those Customers specified in Schedule 3. 7.12 The products are sold on ‘cash and carry’ basis. However, if the Agents sell the products on credit basis to the customers it is at their own risk, though this practice is not encouraged. In such cases, the collection is the sole responsibility of the Agents for the concluded sales for which, the delivery of the products have been made. Therefore, any liability on the part of the customers (other than those covered under the Customer List, where there is no question of credit, and the orders are to be executed strictly on ‘cash basis’), can’t be referred back to the Principals on any grounds.29 8 TERMINATION8 EITHER 8.1 This Agreement shall come into effect on the Commencement Date and shall continue until it is terminated by either party giving written notice to the other party of not less than:30 8.1.1 12 months’ notice with the end of any notice period coinciding with the end of a calendar month. 8.2 Either party may by written notice served on the other terminate this Agreement immediately if the other:31 8.2.1 is in breach of any of the terms of this Agreement and, where the breach is capable of remedy, the other party fails to remedy such breach within 15 days’ service of a written notice from the party not in breach, specifying the breach and requiring it to be remedied provided any such notice is served within six months of the breach occurring or the party not in breach becoming aware of such breach, whichever occurs later. 9 INDEMNITY ON TERMINATION329 9.1 Upon termination of this Agreement, subject to paragraph (5) of Article 17 and the provisions of Article 18 of Council Directive 86/653/EEC, the Agent shall be entitled to an indemnity if and to the extent that:33 9.1.1 he has brought the Principal new customers or has significantly increased the volume of business with existing customers and the Principal continues to derive substantial benefits from the business with such customers; and 9.1.2 the payment of this indemnity is equitable having regard to all the circumstances and, in particular, commission lost by the Agent on the business transacted with such customers. 9.2 The amount of the indemnity shall not exceed a figure equivalent to an indemnity for one year calculated on the Agent’s average annual commission over the preceding 5 years and if the Agreement goes back less than 5 years the indemnity shall be calculated on the average for that shorter period.34 9.3 The Agent shall not be entitled to the indemnity where the Agent’s Member State has provided that the Commercial Agents Council Directive 86/653/EEC will not apply to those persons whose activities as commercial agents are considered secondary by the law of that Member State (“Secondary Agents”) and the Agent constitutes a Secondary Agent.35 9.4 The Agent shall not be entitled to the indemnity where the law of the Agent’s Member State provides for compensation rather than an indemnity to be paid.36 10 INDEMNITIES ON BREACHES3710 Each party agrees to indemnify, keep indemnified and hold harmless the other party from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct and indirect losses (both of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which the other party incurs or suffers as a consequence of a direct or indirect breach or negligent performance or failure in performance by the indemnifying party of the terms of this Agreement. 11 CONFIDENTIALITY3811 11.1 The Principal and the Agent warrant to the other: 11.1.1 to keep confidential all Confidential Information (whether written or oral) of the other which it has obtained or received as a result of the discussions leading up to or the entering into, or obtains or receives in performance of, this Agreement; 11.1.2 not to disclose the Confidential Information of the other in whole or in part to any other person without the other party’s written consent, save to those of its employees, agents and sub-contractors involved in the implementation of the Agreement and who have a need to know the same and are bound to keep it confidential; and 11.1.3 to use the Confidential Information solely in connection with the performance of the Agreement and not otherwise or for the benefit of any third party. 11.2 The provisions of clause 11.1 shall not apply to the whole or any part of the Confidential Information which is: 11.2.1 lawfully obtained after the Commencement Date free of any duty of confidentiality otherwise than directly or indirectly from the other party to this Agreement; 11.2.2 already in the other’s possession other than as a result of a breach of this clause 11.1; 11.2.3 in the public domain (other than as a result of a breach of this clause 11.1); 11.2.4 necessarily disclosed pursuant to a statutory obligation; 11.2.5 disclosed to the professional advisors, auditors and bankers of each party under terms of confidentiality; or 11.2.6 disclosed with the prior written consent of the other party. 11.3 Save as otherwise set out in this Agreement, no announcement, circular, advertisement or other publicity in connection with this Agreement, its subject matter or any ancillary matter shall be made or issued by or on behalf of the Agent without the prior written consent of the Principal. 12 ENTIRE AGREEMENT12 This Agreement contains all the terms and refers to all the documents which the parties have agreed in relation to the subject matter of this Agreement and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such subject matter. Neither party to this Agreement has been induced to enter into this Agreement or any of those documents by a statement or promise which it does they do not contain, save that this clause shall not exclude any liability which one party would otherwise have to the other party in respect of any statement made fraudulently by that party. 12.1.1 the disappearance or replacement of a relevant rate option or other price source for the ECU or the national currency of any Member State, or the failure of the agreed sponsor (or successor sponsor) to publish or display a relevant rate, index, price, page or screen; or 12.1.2 the withdrawal of any Member State from the operation of a single or unified European currency. 13 NOTICE13 13.1 Any notice, demand or communication in connection with this Agreement shall be in writing and may be delivered by hand, pre-paid first class post, Special Delivery post, or facsimile (but not by e-mail), addressed to the recipient at its registered office or its address, or facsimile number] as the case may be stated in clause 13.3 below (or such other address, or facsimile number] as may be notified in writing from time to time) and shall be marked for the attention of [NAME]. 13.2 The notice, demand or communication shall be deemed to have been duly served: 13.2.1 if delivered by hand, when left at the proper address for service; 13.2.2 if given or made by prepaid first class post or Special Delivery post, 48 hours after being posted or in the case of Airmail 14 days after being posted (excluding days other than Business Days); 13.2.3 if given or made by facsimile, at the time of transmission, provided that a confirming copy is sent by first class pre-paid post to the other party within 24 hours after transmission; provided that, where in the case of delivery by hand or transmission by facsimile, such delivery or transmission occurs either after 4.00 p.m. on a Business Day, or on a day other than a Business Day, service shall be deemed to occur at 9.00 a.m. on the next following Business Day (such times being local time at the address of the recipient). 13.3 The addresses and facsimile numbers for the parties are as follows: [AGENT] [PRINCIPAL] [ADDRESS] [ADDRESS] [FAX NO] [FAX NO] 13.4 For the avoidance of doubt, where proceedings to which the Civil Procedure Rules apply have been issued, the provisions of Civil Procedure Rule 6 must be complied with in respect of the service of documents in connection with those proceedings. 14 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 19993914 The parties to this Agreement do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it. 15 JURISDICTION15 The formation, existence, construction, performance, validity and all aspects whatsoever of this Agreement or of any term of this Agreement shall be governed by English and Welsh law [as applied in Wales]. The English and Welsh courts shall have [exclusive] jurisdiction to settle any disputes which may arise out of or in connection with this Agreement. The parties agree to submit to that jurisdiction. SIGNED by [AGENT WHERE NOT A COMPANY] ) in the presence of: ) Witness Signature: Name: Address: Occupation: SIGNED by [NAME FOR SIGNATORY FOR PRINCIPAL WHERE PRINCIPAL A COMPANY] ) duly authorised to sign for and on behalf of ) [NAME] LTD/PLC ) in the presence of: ) Witness Signature: Name: Address: Occupation: Documents forming part of the agreement: 1. Schedule 1 to 3 referred to in the Agreement. 2. Customer List referred to under clause 2.3 3. Attested copy of the Board Resolution authorizing the Director (or Manager) for carrying out the obligations under this agreement on behalf of ABC Ltd. (The Agents as per the agreement.) 4. Authority Letter issued by the ABC Ltd. in connection with the board resolution referred above under 3. 5. Attested copy of the Board resolution of ABC Ltd. to the effect that the Board of Director (by name) has been authorized to enter into agreement on behalf of the company SSS. 6. Attested copy of the Board resolution to the effect that the Agreement, with the terms and conditions specified therein, has been unanimously accepted by the board. (SSS, the Principal and ABC, the Agents) 7. List of Board of Directors of SSS, the Principal and ABC, the Agents as on 1 June, 2010, duly attested. Read More