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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
by International Chamber of Commerce (ICC)
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1.1 The Consultant shall under this engagement provide to the Client, in close cooperation with the Client’s teams and other advisors, the following services as described in more detail under Annex I (hereinafter called the “Services”)1 necessary for the Client to strengthen its presence and Business in the Territory.
1.1.1 The Consultant shall represent the Client with respect to third persons and public authorities with a view to accelerate execution of certain matters and actions to be identified by the Client in the capacity as the Consultant or other capacities as may be required by the Client, provided however that such representation shall not authorise the Consultant to accept or enter into any agreement or arrangements in the name and on behalf of the Client which may burden and/or impose restrictions and/or cause the Client to be legally bound unless the Client gives prior written consent or formal authorisation to such agreement and/or arrangement.
1.1.2 The Consultant shall ensure that the Client is fully and accurately informed of all developments concerning its respective Business including but not limited to evolving market practices and strategies and investment environment. The Consultant shall at all times and as soon as practically possible update and inform the Client concerning the regulatory, legal, economic and financial developments and any changes in the practices of the public authorities (and third parties) in relation to the Business of the Client2. The Consultant shall conduct lobbying activities for the passing of certain draft laws and regulations which are to the benefit of the Client’s Business3.
1.1.3 The Consultant shall provide full guidance, recommendation and assistance to the Client in respect of contacting or creating contact or organizing meetings with important and competent persons within public authorities or with persons identified by the Client or organizing or attending conferences in the field of the Business to inform and visualize the presence and works of the Client. The Consultant shall introduce the top management and/or executives of the Client to political and commercial decision makers in the Territory.
1.1.4 The Consultant shall coordinate, supervise, and facilitate all necessary applications, filings and actions to be followed and/or taken with respect to public authorities and persons in order to ensure that the operations and commercial activities of the Client continue without interruption.
1.1.5 The Consultant shall assist the Client in advising on hiring local talents and executives, and shall provide recommendations on professional advisers which the Client may wish to hire in relation to the Business.
1.1.6 The Consultant shall assist, coordinate and advise the Client in day-to-day management of the Business and in developing business models common or evolving in the Territory.
1.1.7 The Consultant shall engage in promotion and marketing activities in relation to the presence of the Client in the Territory of its respective Business operations and commercial activities.
1.1.8 Subject to Article 6 of this Contract, the Consultant shall be obliged to follow the instructions and comply with the directions of the Client with respect to the Services. The Consultant shall exercise due diligence to keep the Client informed about its activities, market conditions and the state of competition within the Territory. The Consultant shall answer any reasonable request for information made by the Client4.
1.2 The Parties agree that the cooperation of the Client is a key element for the Consultant to duly perform the Services. The Client agrees to provide the required information, inform the Consultant of its specific expectations, if any, and give proper and timely instructions to the Consultant.
2.1 In carrying out their obligations under this Contract, the Parties will act in accordance with the principles of good faith and fair dealing.
2.2 The provisions of this Contract, as well as any statements made by the Parties in connection with it, shall be interpreted in good faith.
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3.1 Unless the Parties agree otherwise in Section 1 of Annex II, the Client shall pay a monthly remuneration to the Consultant of [currency]________________ (hereinafter called the “Consultancy Fee”) to be payable on the last business day of each month (each a “Payment Date”).
3.2 The Client shall be liable to pay each Consultancy Fee upon the receipt of a duly issued invoice by the Consultant in immediately available funds to the Consultant by wire transfer to the bank account of the Consultant details of which shall be included in the relevant invoice. Consultant’s each invoice shall include the name and address of the Consultant, name and address of the Client, description of the Services, amount of invoice which is ________________, and any other information which the Consultant deems compulsory. The Client shall, subject to the above, be deemed to have performed its payment obligations when the respective sums due have been received by the Consultant’s bank in immediately available funds.
3.3 Without prejudice to any other right or remedy, any payment that becomes due, or should become due to the Client under this Contract shall entitle the Consultant to interest5 upon that payment from the Payment Date until the date of actual payment at the rate agreed by the Parties, or, if there has been no such agreement, two per cent (2%) above the average bank short-term lending rate to prime borrowers prevailing for the currency of payment at the place of payment, or where no such rate exists at that place, then the same rate in the country of the currency of payment. In the absence of such a rate at either place, the rate of interest shall be the appropriate rate fixed by the law of the country of the currency of payment. The right to this interest is established automatically on the occurrence of a non-payment for whatever reason and is due and payable on demand.
3.4 The Client and the Consultant hereby agree that no retainer fees or work fees shall be payable by the Client to the Consultant. For the avoidance of doubt, the Consultant shall not be entitled to have success fee as compensation, unless otherwise agreed and set out in Section 2 of Annex II.
3.5 The Client shall not reimburse the Consultant with respect to costs and expenses incurred in connection with this Contract including but not limited to travel and accommodation costs and other out-of-pocket expenses unless agreed otherwise in writing by the Client and the Consultant.
3.6 All tax which may be due and payable in respect of a payment (or the obligation to make such payment) by the Client to the Consultant of the Consultancy Fee under this Contract shall be borne by the Consultant including the responsibility for, and expense of stamp duties and similar charges (if any) imposed by law in connection with the signature of this Contract.
4.2 The Client may deal directly with any third party, without the Consultant’s intervention, at its sole discretion. The Client will be free to conclude contracts with third parties and conduct any transactions required from the Consultant pursuant to Article 1 of this Contract without any obligation towards the Consultant. The Client does not have to obtain the consent of the Consultant in advance for direct communications and transactions6.
4.3 The Client remains free to send its personnel to the Territory in order to harmonise the Consultant’s activities with its own commercial policy and to take direct contact with the third parties within the Territory as referred to under Article 1 of this Contract.
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5.1 Unless otherwise explicitly agreed by the Parties, the Parties shall not, either directly or indirectly, either on their own account or in conjunction with or on behalf of any person, firm or company, during the term of this Contract and for a period of 1 (one) year7 from the date of expiry or termination thereof, employ, solicit, entice away or attempt to employ, solicit or entice away or offer to employ any person who, at any time during the term of this Contract, has been an officer, manager, consultant or employee of the other Party, whether or not such person would commit any breach of its contract of service in leaving its employment. The Parties agree that the non-solicitation obligation hereunder shall apply to the Client also with respect to the subcontractor of the Consultant pursuant to Article 17.1 of this Contract.
6.1 The Consultant agrees and undertakes not to perform any act or make any statement to any person to the effect that it is acting or has acted under this Contract as agent for the Client.
6.2 The Consultant shall be an independent consultant with respect to the Services, and neither the Consultant nor its subcontractors nor the employees of either shall be deemed to be agents, representatives, employees or servants of the Client in the performance of the Services, or any part thereof, or in any manner dealt with herein.
6.3 The Consultant shall be able, with freedom and independence, to organise its activities and shall only render account of the specific Services accomplished under this Contract, but shall not be required to account for its working methods. The Client shall never exert over the Consultant any authority, which an employer is normally vested with.
7.1 Each Party agrees not to disclose to third parties any Confidential Information disclosed to it by the other Party in the context of this Contract in conformity with the ICC Model Confidentiality Clause at Annex III. This Article 7.1 survives the termination or expiry of this Contract, whatever the reason thereof.
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9.4 During the notice period, the Parties will act loyally towards each other and in accordance with the principles in Article 2 and Article 7.
10.1 Each Party may terminate this Contract with immediate effect, by notice given in writing by means of communication ensuring evidence and date of receipt (e.g. registered mail with return receipt, special courier), in case of a substantial breach by the other Party of the obligations arising out of the Contract, or in case of exceptional circumstances justifying the earlier termination, examples of which are given under Articles 10.2 to 10.4 below.
10.2 Any failure by a Party to carry out all or part of its obligations under the Contract resulting in such detriment to the other Party as to substantially deprive it of what it is entitled to expect under the Contract, shall be considered a substantial breach for the purpose of Article 10.1 above. Circumstances in which it would be unreasonable to require the terminating Party to continue to be bound by this Contract, shall be considered as exceptional circumstances for the purpose of Article 10.1 above.
10.3 The Parties hereby agree that the violation of the provisions under Articles ________________ of the present Contract is to be considered in principle, unless the contrary is proved, as a substantial breach of the Contract. Moreover, any violation of the contractual obligations shall be considered as a substantial breach, if such violation is repeated notwithstanding a request by the other Party to fulfil the Contract obligations.
10.4 Furthermore, the Parties agree that the following situations shall be considered as exceptional circumstances which justify the earlier termination by the other Party: bankruptcy, moratorium, receivership, liquidation or any kind of composition between the debtor and the creditors, or any other circumstances which are likely to affect substantially that Party’s ability to carry out its obligations under this Contract9.
10.5 A Party’s termination of this Contract due to a substantial breach by the other Party of the obligations arising out of the Contract, shall not affect the terminating Party’s right to claim for the actual damages suffered, or any other remedies available, as a consequence of such breach.
10.6 If the Parties have filled in Annex IV, this Contract may also be terminated by the Client with immediate effect in case of change of control, ownership and/or management of the Consultant, according to the provisions set forth under Annex IV.
10.7 If a Party terminates the Contract according to this Article, but it is thereafter ascertained that the reasons put forward by that Party do not justify the earlier termination, the termination will be effective, but the other Party will be entitled to damages for the unjustified earlier termination. Such damages will be equal to the Consultancy Fee calculated pro rata for the period the Contract would have lasted in case of normal termination, unless the damaged Party proves that the actual damage is higher (or, respectively, the Party having terminated the Contract proves that the actual damage is lower).
11.1 Upon expiry of this Contract, the Consultant shall return to the Client all advertising material and other documents and samples which have been supplied to it by the Client and are in the Consultant’s possession.
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12.1 The Parties may at any time, without prejudice to Article 12.2, seek to settle any dispute arising out of or in connection with this Contract in accordance with the ICC Mediation Rules.10
14.1 If the Parties have not made a choice between the alternative solutions provided in Articles 4.1, 8, 9, 12.2, 13 and 17 under the Options A and B, by deleting one of the alternatives, and provided they have not expressly made a choice by other means, Option A shall be considered applicable.[Page18:]
14.2 The annexes attached to this Contract form an integral part of the agreement. Annexes or part of annexes which have not been filled in will be effective only to the extent and under the conditions indicated in this Contract.
15.1 This Contract replaces any other preceding agreement between the Parties on the subject, except for any pre-existing confidentiality agreements.
15.2 No addition or modification to this Contract shall be valid unless made in writing. However a Party may be precluded by its conduct from asserting the invalidity of additions or modifications not made in writing to the extent that the other Party has relied on such conduct.
15.3 The nullity of a particular clause of this Contract shall not involve the nullity of the whole agreement, unless such clause is to be considered as substantial, i.e. if the clause is of such importance that the Parties (or the Party to the benefit of which such clause is made) would not have entered into the Contract if it knew that the clause would not be valid.
16.1 The present Contract cannot be assigned without prior written agreement between the two Parties.
18.1 Without the prior written authorization of the Client, the Consultant shall not, directly or indirectly, represent and/or consult any other clients who are in competition with the Business within the Territory, for the entire term of this Contract.
18.2 The Consultant may represent and/or consult other clients who are not competing in the Business, provided that the Consultant informs the Client in advance of such activity16. However, the above obligation to inform the Client does not apply if, in consideration: (i) of the characteristics of the Business which the Consultant wants to engage in, and (ii) of the field of activity of the client for whom the Consultant wishes to act, it is unreasonable to expect that the Client’s interests may be affected.
18.3 The Consultant shall refrain from providing consulting services in non-competing businesses of clients who are competitors of the Client, if requested to do so by the Client, provided the latter’s request is reasonable, taking into account all the circumstances of the case17.
18.4 The Consultant declares that it provides consultancy services to and/or represents (directly or indirectly) the persons listed in Annex V on the date on which this Contract is signed.
19.1 This Contract shall not result in employment relationship between the Client and the Consultant or the professionals allocated by the Consultant, which solely and exclusively assumes all responsibility for labour and social security obligations with regard to its representatives, employees, subcontracting and/or contractors with a relationship therewith. Furthermore, the relationship between the Client and the Consultant shall be that of independent contractors and not of employment, agency or partner of the other for any purpose whatsoever.
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1 Parties must carefully form the content of Annex I based on the specific consultancy needs of the Client and capability and scope of work of the Consultant. Further, the parts that are not of interest for the Business or the respective project should be removed from this Article according to the Parties’ agreement.
2 It may be also advisable to reach an agreement on the frequency of the information requirement and the method of information (meetings, phone calls, e-mails, etc.).
3 This obligation of the Consultant for conducting lobbying activities is optional; the Parties may use alternative wording or delete it completely.
4 The Parties may agree in an annex on the kind and form of information to be provided.
5 The Parties may agree to include monetary adjustment as well as an interest. Non-payment of monetary adjustment of the amounts after they fall due may be relevant for some countries, where inflation rates are high and largely unpredictable.
6 If the Parties provide a success fee as compensation under Annex II, it is advisable that they agree to what extent the success fee will be payable in light of this Article.
7 Although the default position provided hereunder is 1 (one) year of non-solicitation as of the expiry or termination of the contract, the parties are free to shorten this period.
8 Clients should seek legal advice to verify whether a contract ruled by the law of the country of the Consultant allows contract termination for cause. The Parties may make reference in Article 10.3 to those articles for which a breach is of particular importance. This may be the case for Article 3 (Fees and Expenses), Article 4.1 (Exclusivity), Article 5.1 (Non-Solicitation) and Article 7.1 (Confidentiality). It is recommended that the use of Article 10.3 should be limited to essential situations only.
9 This clause may not be enforceable under some national laws; therefore, the parties are encouraged to obtain legal advice on its enforceability for their particular relation.
10 The ICC Mediation Rules can be found on the web site http://www.iccwbo.org/products-and-services/arbitration-and-adr/mediation/rules/.
11 If the Parties would like to keep the arbitration proceedings confidential, they should add a clause regarding the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration.
12 Parties should carefully check whether submission to ordinary courts will allow them to seek enforcement of a court decision in the country where the payer has property.
13 In case this alternative is chosen, it is advisable to choose arbitration (Article 12.2.A) for the resolution of disputes. In fact, it is doubtful whether ordinary courts would apply general principles instead of a national law.
14 This model form has been prepared on the assumption that it would not be governed by a specific national law (as stated in Option A of Article 13.1). If the Parties prefer nevertheless to submit the Contract to a national law, they should carefully check in advance, if the clauses of the model conform to the mandatory provisions of the law they have chosen.
15 The Parties may prefer to not include non-compete obligation by removing this clause from the Contract.
16 It should be considered that it may not be legally possible for the members of certain professions (such as lawyers) to disclose information about their clients without first obtaining their express consent pursuant to the applicable laws.
17 E.g. if there are reasons to fear that the collaboration with a competitor may impair the confidence between the Parties or the protection of Confidential Information.
18 If the Contract is written in another language this clause should of course be modified to indicate the language of the Contract.