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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)
1.1 These General Conditions shall apply together with the Special Conditions (Part A) of the ICC Non-circumvention & Non-disclosure Agreement), to the extent such Special Conditions have been completed by the parties, or whenever the agreement between the parties makes reference to the ICC General Conditions for Non-circumvention & Non-disclosure Agreements or similar rules. Where these General Conditions (Part B) are used independently of the said Special Conditions (Part A), any reference in Part B to Part A will be interpreted as a reference to any relevant specific conditions agreed by the parties.
1.2 No modification of this NCND Agreement is valid, unless agreed or evidenced in writing. However, a party may be precluded by its conduct from asserting this provision to the extent that the other party has relied on that conduct.
2.1 In carrying out their obligations under this Agreement, the parties will act in accordance with good faith and fair dealing
2.2 The provisions of this Agreement, as well as any statements made by the parties in connection with it, shall be interpreted in good faith
3.1 Unless otherwise agreed in writing, the Intermediary has no authority to make contracts on behalf of, or in any way to bind the Counterpart towards third parties.
4.1 The services to be provided by the Intermediary may comprise one or more of the following activities:
4.2 The Agreement must state as precisely as possible the type of services which the Intermediary agrees to provide, without however necessarily specifying the name of the third party, which may be left to a further stage (see Box A-2 of the Special Conditions). No obligation will arise on the side of the Counterpart if the services to be provided by the Intermediary are not at all identified in this Agreement, or in another written document, or are so vague that it would be unreasonable for the Counterpart to undertake the obligations under this Agreement with respect to them.
4.3 If the Intermediary has agreed to transmit to the Counterpart information about a third party, a specific deal or other information (particularly if the parties have completed boxes A-1.1 of the Special Conditions), it is assumed, unless otherwise agreed in writing, that the Intermediary’s obligation is limited to the communication of the name of the third party and/or of the deal or such other information as the Intermediary may have agreed to transmit.
4.4 If the Intermediary has agreed to put the Counterpart in contact with a third party, it is assumed, unless otherwise agreed in writing, that in order to perform such obligation the Intermediary must[Page22:]actually establish a direct contact between the Counterpart and the third party. Further obligations of the Intermediary to assist the Counterpart until the conclusion of the deal and/or to assist the Counterpart during performance of the contract will arise only to the extent such obligations have been expressly undertaken by the Intermediary (e.g., by choosing alternatives B or C of Box A-1.2 of the Special Conditions). In such cases the Intermediary must undertake reasonable efforts to assist the Counterpart until the conclusion of the deal (if alternative B has been chosen) and/or during performance of the contract with the third party (if alternative C has been chosen).
5.1 The parties may agree upon remuneration (commission or lump sum) to be paid by the Counterpart to the Intermediary for the services rendered (see, for instance, Box A-5.1 of the Special Conditions). The amount of such remuneration or the criteria for its determination (e.g., agreement case by case, determination by a third party) must be agreed in writing. In the absence of a written agreement to this effect, it is assumed that the Intermediary is not entitled to remuneration from the Counterpart for its activity.
5.2 If the parties have agreed that the Intermediary’s remuneration should be a lump sum, payment will be due, unless otherwise agreed in writing, when the Intermediary has completed the service(s) it is to provide under this Agreement. In all other cases, remuneration shall be due, unless otherwise agreed in writing, if and to the extent a contract has been concluded with the third party introduced by the Intermediary.
5.3 Unless otherwise agreed in writing (especially under A-5.2-B), the remuneration payable to the Intermediary on contracts with third parties will be due only after fulfillment by the third party of its obligations towards the Counterpart (e.g., payment of the invoiced price if the Counterpart is the seller; delivery of the goods if the Counterpart is the buyer).
5.4 If the remuneration is to be calculated as a percentage of the value of the contract with the third party (commission), it shall be calculated — unless otherwise agreed in writing — on the net amount of the invoices, i.e., the effective sales price (any discount other than cash discounts being deducted) clear of any additional charges (such as packing, transportation, insurance) and clear of all tariffs or taxes (including value-added tax) of any kind, provided that such additional charges, tariffs and taxes are separately stated in the invoice.
5.5 The parties may fix (especially under A-5.2-A) a time limit within which the contract between the Counterpart and the third party must be concluded. If no contract is concluded within such time limit, no remuneration will be due to the Intermediary, unless it appears that the conclusion of the contract with the third party has been intentionally delayed by the Counterpart for the purpose of avoiding payment. If no time limit has been agreed in the contract (or otherwise in writing), the right to remuneration will in any case expire if the contract with the third party has not been concluded before the expiration or termination of the NCND Agreement.
5.6 If the Intermediary has been granted an exclusive right, all direct deals made by the Counterpart which fall under the Intermediary’s exclusivity will entitle the Intermediary, unless otherwise agreed in writing, to the remuneration (if any) foreseen in this Agreement, on the terms and conditions stated herein.
6.1 Each party agrees not to disclose to third parties any Confidential Information (as defined hereunder under Article 6.2) disclosed to it by the other party in the context of this Contract, such as names of customers, sources of contacts, and business opportunities, and to return to the other party any confidential documents after the term or expiry of this Agreement.
6.2 Confidential Information means information which has been supplied to the other party with an indication that it is confidential (or which has been indicated under A-6 of the Special Conditions as being confidential), as well as information the confidential nature of which is so obvious that it need not be specified, provided such information is not in the public domain.
7.1 Except as stated hereafter in Articles 7.2 and 7.3 and unless otherwise agreed in writing (especially under box A-3.1-B and A.3.1-C), it is assumed that the Intermediary is appointed on a nonexclusive basis, i.e., that the Counterpart remains free to appoint other intermediaries and to act on its own with respect to the activity the Intermediary is to perform.
7.2 With respect to third parties the Counterpart comes to know through the Intermediary’s intervention, the following will apply, unless the parties have agreed otherwise in writing:
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7.2.1 If the Intermediary’s task is simply to indicate the name of a third party, it is assumed that it is not granted an exclusive right (customer protection) with respect to such third party and that the Counterpart may deal with that third party without any limitation.
7.2.2 If the Intermediary is to put the Counterpart into contact (and/or assist during negotiation) with a third party, it is assumed that the Intermediary is granted an exclusive right to act as an intermediary — for present and future business of the same type with such third party (customer protection) — on the terms and conditions indicated in this NCND Agreement, and particularly under Article 7.4 herein.
7.2.3 If the Intermediary is to put the Counterpart into contact (and/or assist during negotiation) with a third party for a particular deal, it is assumed that the Intermediary is granted no exclusive right with respect to future business with such third party.
7.3 Unless otherwise agreed in writing (especially under box A-3.2 and A-3.3 of the Special Conditions), the exclusivity granted to the Intermediary does not prevent the Counterpart from making direct contact with the third parties introduced by the Intermediary, provided it pays the remuneration which may be due under Article 5 on the business made with such third party.
7.4 Unless otherwise agreed in writing, any exclusive right granted to the Intermediary will not exceed the duration of this NCND agreement. However, in case of earlier termination by the Intermediary for breach by the Counterpart, the exclusive rights granted to the Intermediary (and corresponding right to remuneration) will last until the date on which the Agreement would have naturally expired.
7.5 The term “exclusive right” or “exclusivity” includes also situations where the exclusivity is not absolute, such as those (sometimes called “sole” instead of “exclusive”) where the Counterpart retains the right to directly deal with third parties reserved to the other party, with or without remuneration to the Intermediary.
8.1 If and to the extent the Intermediary has been granted an exclusive right by the Counterpart, it is assumed, unless otherwise agreed in writing, that it undertakes not to provide its services, directly or indirectly, to competitors of the Counterpart with respect to the business for which it has the exclusivity.
8.2 On the contrary, to the extent the Intermediary has not been granted an exclusive right, it will have no obligation to act only for the Counterpart. In this case it will be free to act for competitors of the Counterpart, provided it does not use any confidential information or otherwise take advantage of its relationship with the Counterpart in the dealings with such competitors.
8.3 Unless otherwise agreed in writing, any undertaking not to compete on the part of the Intermediary will not exceed the duration of this NCND Agreement. However, in case of earlier termination by the Counterpart for breach by the Intermediary, the non-competition obligation of the intermediary (if any) will last until the date on which the Agreement would have naturally expired.
9.1 If a party breaches its obligations under this Agreement, the other party will be entitled to recover the actual damages suffered as a consequence of such breach. If the Counterpart concludes a contract with a third party in breach of this Agreement, the damages suffered by the Intermediary are assumed to be equivalent to the remuneration payable to the Intermediary under this Agreement on such business.
9.2 The parties may agree on liquidated damages by expressly fixing the amount due for a specific breach. Such liquidated damages may however be reduced by the arbitrator(s) or by the court(s) if they appear to be excessive considering all circumstances of the case.
9.3 The party entitled to liquidated damages under Article 9.2 may claim further damages, provided it proves that it has actually suffered the damage in excess of the sum fixed under Article 9.2.
10.1 The Intermediary will have the right to have the Counterpart’s books inspected by an independent expert for the purpose of detecting a possible breach by the Counterpart of its obligations under this Contract.
10.2 If the inspection shows that the Counterpart has breached this Contract, the costs of such inspection shall be borne by the Counterpart. Otherwise they shall be borne by the Intermediary.
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11.1 Unless otherwise agreed in writing (especially in Box A-7), this NCND Agreement will remain in force for a fixed period of one year.
11.2 If the parties have agreed that the NCND Agreement will be automatically renewed at its expiry, unless terminated with notice before such date, the notice must be given in writing by means of communication ensuring evidence and date of receipt (e.g., registered mail with return receipt, special courier, telex), not less than two months before the expiry date. If the successive period of renewal has not been specified, such period will be six months.
12.1 Each party may terminate this NCND Agreement 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, telex), in case of a substantial breach by the other party of the obligations arising out of the Agreement, or in case of exceptional circumstances justifying the earlier termination.
12.2 Any failure by a party to carry out all or part of its obligations under the Agreement, resulting in such detriment to the other party as to substantially deprive it of what it is entitled to expect under the Agreement, shall be considered a substantial breach for the purpose of Article 12.1. Circumstances in which it would be unreasonable to require the terminating party to continue to be bound by this Agreement shall be considered exceptional circumstances for the purpose of Article 12.1.
13.1 Unless otherwise agreed in writing (especially in Box A-8), any questions relating to this agreements which are not expressly or implicitly settled by its provisions shall be governed, in the following order:
13.2 In any event consideration shall be given to mandatory provisions of the law of the country where the Intermediary is established which would be applicable even if the contract is governed by a foreign law. Any such provisions will be taken into account to the extent that they embody principles which are universally recognized and provided their application appears reasonable in the context of international trade.
14.1 The parties may at any time, without prejudice to Article 14.2, seek to settle any dispute arising out of or in connection with this agency contract in accordance with the ICC Mediation Rules.
14.2 Unless otherwise agreed in writing, all disputes arising out of or in connection with this NCND Agreement, or its validity, shall be finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules.