IMPORT AGENCY AGREEMENT
THIS IMPORT AGENCY AGREEMENT (this “Agreement”) is entered into and made effective as of ______, 2022 (the “Effective Date”) by and between _____________ (the “Principal”), and ______________. (the “Agent”) (Each a “Party” and, collectively, the “Parties”).
W I T N E S S E T H:
WHEREAS, Principal wishes to purchase certain merchandise produced outside of the US (the “Merchandise”); and
WHEREAS, Agent is in the business of providing buying services (the “Services”); and
WHEREAS, Principal wishes to appoint Agent as its non-exclusive buying agent throughout the World (the “Territory”),
NOW, THEREFORE, in consideration of the covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, Principal and Agent agree as follows:
- APPOINTMENT. Principal hereby appoints Agent as a non-exclusive buying agent to render Services in the Territory in connection with the purchase of Merchandise by Principal. Agent hereby accepts such appointment on the terms and conditions contained herein. Principal may at any time and from time to time, without notice, appoint other buying agents and Agent may accept other appointments from any other Principal to perform services.
- AGENT’S OBLIGATIONS
a. Agent shall, on behalf of and pursuant to Principal’s directions, perform the following Services for Principal:
i. Advise Principal of Merchandise, current prices, trends, shipping conditions and availability of production;
ii. Place orders for specified Merchandise on Principal’s behalf;
iii. Arrange for the shipment of the Merchandise including preparation of all relevant export documentation in accordance with the terms of the relevant purchase order;
iv. Estimate and evaluate price offers provided by manufacturers and suppliers, including import expenses such as transportation, insurance, and customs duties from the countries of origin of the Products to the country designated by the Principal.
v. Negotiate pricing, payment terms, and delivery terms with manufacturers and suppliers for the Products.
vi. Provide advice to the Principal on export and import processes and documentation
vii. Use best efforts to monitor the transfer of Merchandise to Principal, or its designee, assuring that said transfer is delivered in the proper quantities and in a timely manner;
viii. Ensure the Merchandise is packed in a manner specified and approved by Principal which will insure its safe transport to Principal’s designated destination.
b. Agent shall assure to the best of its ability that all invoices, affidavits, letters, papers or other statements, written or verbal, pertaining to the Merchandise are complete and contain no material omissions or fraudulent or false statements in contravention of applicable law, and shall supply Principal with the originals or copies of all such written documents promptly upon Principal’s request. Agent shall abide by the terms of the Foreign Corrupt Practices Act.
c. Undertake its best efforts to ensure that goods ordered by Principal will not be transshipped, or their country of origin otherwise misrepresented.
d. Agent, at Principal’s written request and direction, agrees to use its best reasonable efforts to negotiate any and all disputes and claims arising with any seller of Merchandise, and upon Principal’s written request, consistent with Principal’s reasonable instructions, and on Principal’s behalf, to attempt to settle any and all such disputes and claims to the satisfaction of Principal.
- PURCHASING TERMS. All purchases made by Agent for Principal’s benefit pursuant to this Agreement and the written purchase order of Principal shall be F.O.B. port of loading in the country of origin unless otherwise agreed to in writing by the Parties hereto.
- INVOICING. The Agent shall ensure that all invoices related to orders and purchase agreements include accurate descriptions of the Merchandise, the names of the applicable manufacturers or suppliers, the country of origin, and conform to any other specifications established by the Principal.
- LETTER OF CREDIT. Certain orders or groups of orders made by the Principal may be accompanied by an Irrevocable Letter of Credit (ILC) in an amount sufficient to pay the purchase price of the Merchandise. The Principal will define the terms and conditions of each Irrevocable Letter of Credit, and all acts done or representations made by the Agent with regard to the Irrevocable Letter of Credit are subject to the Principal’s explicit approval.
- PRINCIPAL’S OBLIGATIONS
a. Principal will pay Agent for providing the service required of Agent under this Agreement and in the manner hereinafter provided, a buying commission of _____.
b. Principal shall pay Agent its commission, via wire transfer funds to a deposit account established at a financial institution designated by Agent, within seven (7) days after it is earned.
c. Principal will pay all costs of insurance, shipping, forwarding, handling and other incidental charges and disbursements against shipments incurred by Principal.
d. No provision of this Agreement shall be construed to limit or qualify the responsibilities that Principal, as importer of record of the Merchandise, has under the laws enforced by the United States Customs Service, or under applicable common law, state or federal statutes and regulations, or the policies of any governmental authority.
- DEFECTIVE PRODUCTS AND INSPECTION. If the Principal discovers that the Products are faulty after importation, the Agent will help the Principal in arranging for the return of such items, as well as in the recovery of sums previously paid by the Principal or owed to manufacturers and suppliers for orders of defective products.
- LIMITATION OF LIABILITY. Except for any claims against Agent arising out of Agent’s recklessness, willful misconduct or fraud, Principal acknowledges that all claims arising out of or relating to the purchase of Merchandise through Agent shall be made against the Seller of such Merchandise and not against Agent.
- RELATIONSHIP OF THE PARTIES.
a. Each Party to this Agreement will be and agrees to act as an independent contractor and not as a partner of, or joint venturer with, the other Party for any purpose related to this Agreement or the transactions contemplated by this Agreement, and neither Party will by virtue of this Agreement have any right, power or authority to act or create any obligation, expressed or implied, on behalf of the other Party. Except as expressly provided herein, Principal shall bear all risk of loss for damaged, lost, defective or non-conforming merchandise purchased by Principal under this Agreement.
b. Principal acknowledges and agrees that Agent may engage sub-agents to perform some or all Agent’s Services hereunder.
- TERM AND TERMINATION
a. TERM. The term of this Agreement shall commence on the Effective Date and, unless sooner terminated as provided herein, shall continue in full force and effect for an initial term of one (1) year (the “Initial Term”), and thereafter shall remain in force until terminated in writing by either Party upon sixty (60) days prior written notice to the other, provided, however, that, in any event, the confidentiality provisions of this Agreement shall remain in full force and effect in perpetuity as to any Confidential Information disclosed hereunder prior to the date of expiration or termination of this Agreement.
b. TERMINATION FOR CAUSE; NON-PERFORMANCE. Either Party may suspend its performance or terminate this Agreement in the event either Party fails to perform any material term or condition of this Agreement and the defaulting Party does not cure such failure within thirty (30) days after written demand by the other, five (5) days for an Agent delay in meeting a delivery schedule default; or immediately upon written notice at any time upon occurrence of any of the following events: (a) the other Party (i) becomes insolvent; (ii) enters into or files a petition, arrangement or proceeding seeking an order for relief under bankruptcy laws of the United States; (iii) enters into a receivership for any of its assets; or (iv) enters into a composition with or assignment for the benefit of its creditors. If such default remains uncured after thirty (30) days (or five days, as the case may be), the aggrieved Party may terminate this Agreement by sending further notice to such effect, effective immediately.
c. EFFECT OF TERMINATION. Upon any termination of this Agreement, each Party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that the obligations of the Parties under this Agreement, which, by their nature, would continue beyond termination or expiration of this Agreement, including but not limited to payment, performance of the Parties respective obligations with respect to any purchase order placed by Agent for Principal pursuant to this Agreement. While termination will not relieve the Parties from liability arising from any breach of this Agreement, neither Party will be liable to the other for damages or any sort solely as a result of terminating this Agreement in accordance with its terms. Termination of this Agreement will be without prejudice to any other right or remedy of either Party.
- ARBITRATION; CLASS ACTION WAIVER
a. ARBITRATION. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be governed by the laws of the State of ______________. The arbitration will be based on the submission of documents and there shall be no in-person or oral hearing. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior consent of both parties. Parties understand that this clause means that, by agreeing to arbitrate, they are waiving their rights to sue in court and have a jury trial.
b. CLASS ACTION WAIVER. Parties acknowledge and agree that they waive their rights, if any, to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both Parties otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
a. SCOPE. Each Party hereto acknowledges that it has been informed of the confidential and proprietary nature of the others Confidential Information and agrees that the Party receiving the Confidential Information (the “Recipient”) (including, without limitation, any such information furnished prior to the date of this Agreement) from the Party disclosing the Confidential Information (the “Disclosing Party”), shall, at all times, take all reasonable steps to ensure that Confidential Information of the Disclosing Party is not disclosed to third-parties; provided, however, that such information may be disclosed to those directors, officers, employees, brokers and representatives (including financial advisors, attorneys and accountants) of the Recipient (each, a “Representative,” and collectively, the “Representatives”) who have a substantial “need-to-know” such information , or as may otherwise be expressly permitted, in writing, by the Disclosing Party The Recipient shall inform each such Representative of the confidential nature of such information and of the confidentiality undertakings of the Recipient contained herein. The Recipient shall be responsible for ensuring that its Representatives comply with the terms and conditions of this Agreement. As used herein, “reasonable steps” means the steps that the Recipient takes to protect its own, similarly confidential or proprietary information, which shall not be less than a reasonable standard of care.
b. DEFINITION. As used herein, “Confidential Information” means any of the Disclosing Party’s proprietary or confidential information, technical data, trade secrets or know-how, whether existing or contemplated, that is disclosed, directly or indirectly, to the Recipient or one of its Representatives by or on behalf of the Disclosing Party, in writing, orally or by drawings or inspection of documents or other tangible property. However, “Confidential Information” shall not include any of the foregoing items which:
i prior to disclosure, is in the public domain;
ii after disclosure, becomes known to the public through no act or omission of the Recipient or any of its Representatives;
iii is required to be disclosed pursuant to applicable law, rule, regulation, or court or administrative order; provided, however, that the Recipient shall take reasonable steps to obtain confidential treatment for such items and shall promptly advise the Disclosing Party of its notice of any such requirement in order to permit the Disclosing Party to obtain such confidential treatment on its own behalf.
c. RETURN OF CONFIDENTIAL INFORMATION. Upon termination of this Agreement, and upon written request by the Disclosing Party at anytime prior to termination of this Agreement, the Recipient shall promptly deliver to the Disclosing Party all original Confidential Information of the Disclosing Party in its possession, in whatever medium, and shall cause all copies, summaries, synopses or derivations thereof to be destroyed.
- REPRESENTATION AND WARRANTIES
a. NO CONFLICTS. Agent represents and warrants to Principal that it has no obligations to any third-party, which will in any way limit or restrict its ability to provide Services to Principal hereunder.
b. NO VIOLATION OF LAW OR CONTRACT. Agent represents and warrants to Principal that its performance of Service under this Agreement does not and shall not violate any applicable law, rule or regulation or any contracts with third-parties.
c. CAPACITY. Agent represents and warrants to Principal that: (i) it has all requisite legal and corporate power and authority to execute and deliver this Agreement and to carry out and perform all of its obligations under this Agreement; (ii) the execution, delivery and performance by it of this Agreement does not violate any applicable law, rule, regulation, judgment, injunction, order or decree; and (iii) it holds and is in compliance with any applicable permits, licenses and other approvals required to carry out its obligations under this Agreement.
- NOTICES. All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be given, made or communicated either by personal delivery, facsimile transmission, reliable overnight courier (e.g. UPS, FedEx) or by registered or certified mail, postage prepaid, and addressed to the intended recipient as follows:
If to Agent, by mail to:
If to Principal, by mail to:
or to such other address or to such other person as the intended recipient of such notices shall notify the other Party of in accordance with the foregoing. Any notice shall deemed to have been given, made, received or communicated as the case may be on the date personal delivery was effected if personally served, on the date shown on the sender’s receipt of its facsimile transmission if by facsimile, on the date shown as the date of delivery on the overnight courier’s copy if by overnight courier, or on the date of delivery (or attempted delivery) as shown on the return receipt if delivered by registered or certified mail.
- EXCUSABLE DELAYS; FORCE MAJEURE. Neither Party to this Agreement will be considered to be in default of this Agreement, or have liability whatsoever to the other, as a result of events beyond their reasonable control which could not have been avoided by the exercise of reasonable prudence, including delays caused by acts of God, acts or regulations of any governmental or supra-national authority, war or national emergency, accident, fire, riot, strike, lock-outs and industrial disputes. The Agent is required to use its best efforts to avoid recommending the use of factories with a history of labor troubles in regards to lock-outs and industrial disputes.
a. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
b. SECTION HEADINGS. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
c. REQUIRED APPROVALS. Where agreement, approval, acceptance, or consent by either Party is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
d. DIGITAL SIGNATURE. The Parties hereto agree that digital signatures shall be as effective as if originals.
e. NO WAIVER. No consent to or waiver of any breach or default of any term or condition of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other term or condition hereof. Failure on the part of either Party or to complain of any act or failure to act of the other Party or to declare the other Party in default, irrespective of the duration of such failure, shall not constitute a waiver of rights hereunder and no waiver hereunder shall be effective unless it is in writing, executed by the Party waiving the breach or default hereunder.
f. SEVERABILITY. In the event any provision of this Agreement shall be held invalid, the same shall not invalidate or otherwise affect in any respect any other term or terms of this Agreement, which terms shall remain in full force and effect.
g. SURVIVAL. All terms, conditions, obligations and provisions capable of surviving the termination of this Agreement shall so survive.
h. PREVAILING LANGUAGE. If there are any inconsistencies or conflicts between the English original of this Agreement and any foreign language translation, the English version shall prevail.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be signed and delivered by their duly authorized officers or representatives as of the date first above written
Name, Title: ____________
Name, Title: ____________