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Scope of contract: Territory, Products and customers¹⁶

1.1 The Principal appoints the Agent, who accepts, as its commercial agent, to promote the sale of the products listed in Annex I, § 1 (hereinafter called “the Products”) in the territory defined in Annex I, § 2 (hereinafter called “the Territory”) to the customers (hereinafter called “Contractual Customers”), as defined in Annex 1, § 3.

1.2 Contractual Customers are all customers, except the Excluded Customers (if any) listed in Annex 1, § 3.

1.3 If the Principal decides to sell any other products in the Territory, it shall inform the Agent in order to discuss the possibility of including them within the Products defined under Article 1.1. However, the above obligation to inform the Agent does not apply if, in consideration of the characteristics of the new products and the specialization of the Agent, it is not to be expected that such products may be represented by the Agent (e.g. products of a completely different range).

Good faith and fair dealing

2.1 In carrying out their obligations under this contract the parties will act in accordance with good faith and fair dealing.

2.2 The provisions of this contract, as well as any statements made by the parties in connection with this agency relationship, shall be interpreted in good faith.

Agent’s functions

3.1 The Agent agrees to use its best endeavours to promote the sale of the Products in the Territory in accordance with the Principal’s reasonable instructions and shall protect the Principal’s interests with the diligence of a responsible businessperson.

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3.2 The Agent shall not solicit orders from customers established outside the Territory unless permitted to do so by the Principal. Where the Agent solicits orders from customers in the Territory which results in contracts of sale with customers established outside the Territory,¹⁷ Article 15.2 shall apply.

3.3 Unless otherwise specifically agreed, the Agent has no authority to make contracts on behalf of, or in any way to bind the Principal towards third parties.¹⁸ The Agent only solicits orders from customers for the Principal, who is free (save as set forth in Article 4.2 hereafter) to accept or to reject them.¹⁹

3.4 When dealing with customers, the Agent shall offer Products strictly in accordance with the terms and conditions of the contract of sale which the Principal has communicated to it.²⁰

3.5 The Agent is not entitled to receive payments on the Principal’s behalf without prior written authorization from the Principal to that effect. When the Agent has been so authorized, it must transmit them as soon as possible to the Principal and until then hold them separately on deposit on the Principal’s behalf.²¹

Acceptance of orders by the Principal

4.1 The Principal shall inform the Agent without undue delay of its acceptance or rejection of the orders transmitted by the latter. The Principal may accept or reject any individual order transmitted by the Agent at its own discretion.

4.2 The Principal may not however unreasonably reject the orders transmitted by the Agent. In particular, a repeated refusal of orders contrary to good faith (e.g. if made for the only purpose of hindering the Agent’s activity) shall be considered as a breach of contract by the Principal.

Undertaking not to compete²²

5.1 Without the prior written authorization of the Principal, the Agent shall not, directly or indirectly, represent, manufacture or distribute any products which are in competition with the Products, for the entire term of this contract.

5.2 The Agent may represent, distribute or manufacture any products which are not competing with the Products, provided the Agent informs the Principal in advance of such activity. However, the above obligation to inform the Principal does not apply if, in consideration: (i) of the characteristics of the products which the Agent wants to represent, and (ii) of the field of activity of the Principal for whom the Agent wishes to act, it is unreasonable to expect that the Principal’s interests may be affected.

5.3 The Agent shall refrain from representing or distributing non-competing products of a manufacturer who is a competitor of the Principal, if requested to do so by the Principal, provided the latter’s request is reasonable, taking into account all the circumstances of the case.²³

5.4 The Agent declares that it represents (and/or distributes or manufactures, directly or indirectly) the products listed in Annex II on the date on which this contract is signed.

Sales organization, advertising and fairs, the Internet

6.1 The Agent shall provide an adequate organization to promote sales and, where appropriate, after-sale service, with all necessary means and personnel, in order to ensure the fulfilment of its obligations throughout the Territory under this contract.

6.2 The Agent agrees to accept any reasonable invitation of the Principal to discuss, develop, implement, evaluate and when applicable amend a marketing and advertising strategy for the Territory.

6.3 The parties may agree on the advertising and other marketing activities to be made in the Territory. The contents of any advertising must be approved by the Principal. The cost of advertising carried out by the Agent shall be apportioned between the parties as indicated in Annex III, § 1.

6.4 The parties shall agree on their participation in fairs, exhibitions within the Territory. The cost of the Agent’s participation in such promotional activities shall be apportioned between the parties as indicated in Annex III, § 2.²⁴

6.5 The Agent is not authorized to advertise the Products or its activity as Agent of the Principal on the Internet without the Principal’s prior written approval

Sales targets — Guaranteed Minimum Target²⁵

7.1 The parties may agree annually on the sales targets for the forthcoming year.

7.2 The parties shall make their best efforts to attain the targets agreed upon, but the non-attainment shall not be considered as a breach of the contract by a party, unless that party is clearly at fault.

7.3 In Annex IV the parties may agree on a Guaranteed Minimum Target and on the consequences of its non-attainment.

Sub-agents²⁶

Principal to be kept informed

9.1 The Agent shall exercise due diligence to keep the Principal informed about its activities, market conditions and the state of competition within the Territory. It shall answer any reasonable request for information made by the Principal.²⁷

9.2 The Agent shall exercise due diligence to keep the Principal informed about: (i) the laws and regulations which are to apply in the Territory to which the Products must conform (e.g. import regulations, labelling, technical specifications, safety requirements, etc.), and (ii) the laws and regulations concerning its activity , as far as they are relevant for the Principal.

Financial responsibility

The Agent shall satisfy itself, with due diligence, of the solvency of customers whose orders it transmits to the Principal. The Agent shall not transmit orders from customers of which it knows or ought to know that they are in a critical or difficult financial position, without informing the Principal in advance of such fact. The Agent shall, furthermore, give reasonable assistance to the Principal in recovering debts due.

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Principal’s trademarks, trade names and symbols

11.1 The Agent shall use the Principal’s trademarks, trade names and symbols, but only for the purpose of identifying and advertising the Products, within the scope of this contract, in the Principal’s sole interest.

11.2 The Agent shall not register nor have registered on its behalf any trademarks, trade names, or symbols of the Principal (or which are confusingly similar with the Principal’s), or use such as domain names or metatags, in the Territory or elsewhere.²⁸

11.3 The right to use the Principal’s trademarks, trade names and symbols, as provided for under the first paragraph of this Article, shall cease immediately for the Agent, on the expiration or termination, for any reason, of the present contract.

11.4 The Agent shall notify the Principal of any infringement of the Principal’s trademarks, trade names and symbols that comes to its attention.

Complaints by customers

The Agent shall immediately inform the Principal of any observations or complaints received from customers in respect of the Products. The parties hereto shall deal promptly and properly with such complaints. The Agent has no authority to engage in any way the Principal, unless after the Agent has received a specific written authorization to such effect.

Exclusivity

13.1 The Principal shall not, during the life of this contract, grant any other person or undertaking within the Territory the right to represent or distribute the Products to the Contractual Customers.

13.2 The Principal is however entitled to deal directly, without the Agent’s intervention (provided the Principal informs the latter) with customers situated in the Territory; in respect of any sales arising therefrom, the Agent shall be entitled to the commission provided for in this contract, unless provided otherwise in Article 13.5.

13.3 The Principal shall be entitled to deal directly with the special customers listed in Annex V , § 2; in respect of the sales to such customers the Agent shall be entitled to the reduced commission or to no commission, if the parties so agree, as provided for in Annex V, § 2. Paragraph 13.3. shall not apply if § 2 of Annex V (Special customers/Reduced commission) has not been filled in by the parties.

13.4 Parties may agree on a possible withdrawal by the Principal of certain Contractual Customers from the exclusivity in consideration of an equitable compensation in conformity with Article 21 to the Agent.

Agent to be kept informed

14.1 The Principal shall provide the Agent with all necessary written information relating to the Products (such as price lists, brochures, etc.) as well as with the information needed by the Agent for carrying out its obligations under the contract.

14.2 The Principal shall furthermore inform the Agent without undue delay of its acceptance, refusal and/or non-execution of any business transmitted by the Agent.

14.3 The Principal shall keep the Agent informed of any relevant communication with customers in the Territory.

14.4 If the Principal expects that its capacity of supply will be significantly lower than that which the Agent could normally expect, it will inform the Agent within a reasonable time.

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Agent’s commission

15.1 The Agent is entitled to the commission provided for in Annex V, § 1, on all sales of the Products which are made during the life of this contract to customers established in the Territory.

15.2 If the Agent, when dealing with customers established in the Territory, secures orders resulting in contracts of sale with customers established outside the Territory, and if the Principal accepts such orders, the Agent shall be entitled to receive a reduced commission, the amount of which shall be decided on a case-by-case basis. Similarly, the Agent’s commission shall be reduced when another agent solicits orders with customers established outside the Territory resulting in contracts of sale with customers established within the Territory.

15.3 A reduced commission may be agreed in advance between the Principal and the Agent in appropriate circumstances where a Contractual Customer is to be granted terms or conditions which are more favorable than the Principal’s standard conditions, with respect to special customers (Annex V, § 2) or in case of discounts granted under Annex V, § 3. If the parties have filled in § 3 of Annex V, the figures indicated therein shall apply in the respective situations.

15.4 Unless otherwise agreed in writing, the commission covers any expenses incurred by the Agent in fulfilling its obligations under this contract (such as telephone, office, travel expenses, etc.).

Method of calculating commission and payment

16.1 Commission shall be calculated on the EXW Incoterms rule reference value, irrespective of the Incoterms rule chosen in the contract of sale.²⁹

16.2 The A gent shall acquire the right to commission after full payment by the customers of the invoiced price. In case of partial payment made in compliance with the sales contract, the Agent shall be entitled to a proportional payment.

16.3 The Principal shall provide the Agent with a statement of the commissions due in respect of each quarter and shall set out all the business in respect of which such commission is payable. The commission shall be paid not later than the last day of the month following the relevant quarter.

16.4 The Agent is entitled to receive all the information, and in particular extracts from the Principal’s books, necessary to check the amount of the commission due to it. The Principal shall permit an independent auditor appointed for that purpose by the Agent to inspect the Principal’s books for the purpose of checking the data relevant for the calculation of the Agent’s commission. The costs of such inspection shall be borne by the Agent. The Principal shall reimburse the costs of such inspection should the inspection prove the statements provided by the Principal in 16.3 to be incorrect.

16.5 Should any governmental authorization (e.g. due to exchange control regulations in the Principal’s country) be necessary for the Principal to transfer abroad the commission (or of any other sum the Agent may be entitled to receive), then the payment of the amount shall be made after such authorization has been given. The Principal shall take all necessary steps for obtaining the above authorizations.

16.6 Except as otherwise agreed, the commission shall be calculated in the currency of the sales contract in respect of which the commission is due.

Unconcluded business

17.1 No commission shall be due in respect of offers or orders transmitted by the Agent and not accepted by the Principal.

17.2 If a contract made by the Principal as a result of orders transmitted by the Agent is not thereafter put into effect, the Agent shall be entitled to commission unless non-performance of the contract is due to reasons for which the Principal is not responsible.

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Term of the Contract

18.3 During the notice period the parties will act loyally towards each other and in accordance with the principles in Article 2 and Article 28.

Unfinished business

19.1 Orders transmitted by the Agent or received by the Principal from customers established in the Territory before the expiry or termination of this contract and which result in the conclusion of a contract of sale not more than six months after such expiration, shall entitle the Agent to commission.

19.2 No commission is due to the Agent for contracts of sale made on the basis of orders received after the expiry or termination of this contract, save if such transaction is mainly attributable to the Agent’s efforts during the period covered by the agency contract and if the contract was entered into within a reasonable period after the expiry or termination of this contract. The Agent must however inform the Principal in writing, before the expiry or termination of this contract, of the pending negotiations which may give rise to commission under this paragraph.

Earlier termination³⁰

20.1 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.

20.2 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 as a substantial breach for the purpose of Article 20.1 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 20.1 above.

20.3 The parties hereby agree that the violation of the provisions under Articles ..................³¹ 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 may be considered as a substantial breach, if such violation is repeated notwithstanding a request by the other party to fulfil the contract obligations.

20.4 If the parties have filled in Annex VI, the contract may also be terminated by the Principal with immediate effect in case of change of control, ownership and or management of the agent-company, according to the provisions set forth in Annex VI.

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20.5 If a party terminates the contract according to this Article, but it is thereafter ascertained that the reasons put forward by that party did 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 average commission 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). The above damages are in addition to the indemnity which may be due under Article 21.

Indemnity in case of termination^{32 33 34}

Return of documents and samples

Upon expiry of this contract the Agent shall return to the Principal all advertising material and other documents and samples which have been supplied to it by the Principal and are in the Agent’s possession.

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Resolution of disputes

23.1 The parties may at any time, without prejudice to Article 23.2, seek to settle any dispute arising out of or in connection with this agency contract in accordance with the ICC Mediation Rules.³⁵ 3

Applicable law^{38 39}

Automatic inclusion under the present contract

25.1 If the parties have not made a choice between the alternative solutions provided in Articles 8, 13, 18, 23, 24 and 29 under the letters A and B, by deleting one of the alternatives, and provided they have not expressly made a choice by other means, alternative A shall be considered applicable .

25.2 If the parties have not made a choice between the alternative solution provided in Article 21 (goodwill indemnity in case of termination) under the letters A and B, by deleting one of the alternatives, and provided they have not expressly made a choice by other means, alternative A shall be considered applicable if the Agent is established in a country where a goodwill indemnity in case of termination is recognized by mandatory law and alternative B shall apply in the opposite case.

25.3 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.

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Previous agreements — Modifications — Nullity

26.1 This contract replaces any other preceding agreement between the parties on the subject, except for any pre-existing confidentiality agreements.

26.2 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.

26.3 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.

Prohibition of assignment

27.1 The present contract cannot be assigned without prior written agreement between the two parties.

27.2 If Article 21 A is applicable, and if there has been assignment by the Agent with the Principal’s consent according to Article 21.3 (c), the goodwill indemnity of the new agent shall be calculated by also taking into account the activity of the old agent, according to Article 21. It is expressly agreed that the amount that may have been paid by the new agent to the previous one shall not be taken into account when calculating the indemnity.⁴⁰

Confidential Information

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 VII. This Article 28 survives the termination of this contract.

Anti-Bribery and Anti-corruption⁴¹

Parties’ Independence

This agency agreement shall not result in employment relationship between the Principal and the Agent or the professionals allocated by the Agent, which solely and exclusively assumes all responsibility for labor and social security obligations with regard to its representatives, employees, subcontracting and/or contractors with a relationship therewith. Furthermore, the relationship between Principal and Agent shall be that of independent contractors and not of employment or partner of the other for any purpose whatsoever.

Authentic text

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