Import Agency Contract
This Import Agency Contract (this "Contract") is entered into on
________________, ________ between the following parties:
Party A: Xxxxxxxx Citrus Sales of Florida, Inc.
XX Xxx 0000
Xxxxxx, Xxxxxxx, XXX
Tel: 0-000-000-0000
Fax: 0-000-000-0000
Party B: Golden Wing Mau Enterprise Development Co. Ltd.
Xxxx 0000, Block A
Carrianna Friendship Square
Renmin Road South
Shenzhen, Guangdong Province,
People Republic of China
Tel: 00-000-000-0000
Fax: 00-000-000-0000
Following friendly discussions, Party A agreed to engage Party B as the
Import Agent for Party A frozen concentrated fruit juices and fresh citrus
fruits (hereinafter abbreviated as the "Product" or "Products") in the Peoples
Republic of China (hereinafter abbreviated as "China") and the Special
Administrative Region of Hong Kong of the Peoples Republic of China (hereinafter
abbreviated as "Hong Kong") and Party B agreed to accept Party A engagement as
Import Agent. Both Parties have voluntarily agreed to set out the terms and
conditions of their import agency relationship in writing as follows:
1. Scope of the Import Agency. Party A agrees to engage Party B, on an
independent contractor basis, as the Designated Import Agent to handle the
importation and customs clearance of the Products in China and Hong Kong.
Party A reserves the right to accept any customer orders and Party B does
not have authority to accept orders on behalf of Party A.
2. Representations of Party B. Party B represents and warrants to Party A that
it is duly authorized by the relevant Chinese and Hong Kong governmental
entities to engage in the foreign and domestic trade of frozen concentrated
fruit juice products and fresh citrus fruits, including but not limited to
acting as import agent for the importation and customs clearance of the
Products, invoicing and collecting payments from certain China-based
customers of Party A and making US Dollar denominated electronic remittance
to Party A as provided for under this Contract. Party B further represents
and warrants to Party A that it is staffed and equipped to handle the
importation and customs clearance of the Products throughout China and Hong
Kong, including but not limited to the ports of Tianjin, Qingdao, Yantai,
Xiamen, Shenzhen through Wenjindu/Yantian and Hong Kong.
3. Responsibilities of Party B as Import Agent. In consideration of Party A
agreement to pay the Import Agent Fee as set out in Paragraph 4(d) of thi
Contract, Party B agrees to use its best
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efforts to ensure the prompt importation of the Products into China and
Hong Kong. Party B responsibilities as Import Agent shall include, but are
not limited to the following:
(a) Party B shall act as the Importer of Record on import documentation
that must be submitted for customs declaration for the Products'
import sales into China and Hong Kong unless any Party A customer
requests and has the ability to arrange for importation of its own
orders;
(b) As directed by Party A, Party B shall:
(i) review and process any paperwork necessary to effect the
importation of Product shipments into China and Hong Kong;
(ii) arrange for the necessary customs clearance and commodity
inspection;
(iii)arrange for the payment of any necessary taxes, customs tariffs
and/or inspection charges, subject to Party B being reimbursed
any actual payments of taxes, commodity inspection expenses and
other reasonable out-of-pocket expenses by Party A, and Party A
payment by telegraphic transfer ("T") of estimated import costs
as set out in Paragraph 4(f) of this Contract; and
(iv) "trouble-shoot" any related import problems including, but not
limited to, the situations described in Paragraph 4(a) of this
Contract.
Party B does not have any responsibility or obligation to advance
payments for purchases or any other expenses to Party A. Party B shall
reconcile accounts with Party A and both sides shall settle any
outstanding amounts owed to the other Party every Thirty (30) days;
(c) As directed by Party A, Party B shall notify Party A customers in
China and Hong Kong of the arrival of their orders at the respective
destination ports and promptly notify the customers to pick up their
orders after the shipments have cleared the relevant customs and
inspection authorities (any local transportation and/or delivery
charges, any storage costs not caused by Party B delay and any other
reasonable expenses shall be paid by the customers separately and are
not covered by this Contract unless Party A undertakes to bear any
such costs in writing);
(d) As directed by Party A, Party B shall arrange for the local
distribution of the Products on an "as needed" basis and shall be
reimbursed any reasonable out-of-pocket expenses by Party A;
(e) As directed by Party A, Party B shall invoice certain China-based
customers of Party A, collect any Party A customer product payments
that are denominated in RMB, deduct the appropriate reimbursement(s)
and Import Agency Fee [as defined in Paragraph 4(d) of this Contract]
owed to Party B for the imports in question, convert the balance into
US Dollars for electronic remittance to Party A in a timely fashion.
Party B shall provide progress and accounts reports to and reconcile
accounts with Party A and both sides shall settle any outstanding
amounts owed to the other Party every Thirty (30) days;
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(f) At the request of Party A, Party B shall arrang for the suitable
storage of any Products in any necessary bonded area(s) in China
and/or Hong Kong and their subsequent entry into China and Hong Kong
(Party A or the relevant customer shall be responsible for payment of
any such storage costs);
(g) Party B shall provide liaison with the relevant Chinese and Hong Kong
governmental entities regulating the importation of foreign frozen
concentrated fruit juices and fresh citrus fruits and advise Party A
of any updates and/or revisions which may affect Party A Product
sales to China and Hong Kong;
(h) As a one time service, Party B agrees to assist Party A in obtaining
official approval for the necessary imported food product/labeling
registrations for Party A frozen concentrated fruit juices in China
and Hong Kong. Party B further irrevocably agrees to permit Party A
(at Party A's discretion) to use Party B Shenzhen/Hong Kong company
name and address as the Importer on the food labels for any Product
containers and/or packaging intended for the Chinese and Hong Kong
markets for a period of Three (3) years from the date of this Contract
or from the date of any subsequent extension;
(i) Party B shall assist Party A to safeguard against any unfair
competition that may arise relating to Product sales in China and Hong
Kong as a result of the actions of a third party to the extent
permissible by the relevant laws and regulations;
(j) Party B understands that Party A Products are marketed under the
XXXXXXXX and XXXXXXXX trademarks. Party B acknowledges that the
XXXXXXXX and XXXXXXXX trademarks and the corresponding trade dress and
advertising and product promotion material are the exclusive property
of Party A. Party B shall not imitate, infringe or register or cause
others to imitate, infringe or register the XXXXXXXX or XXXXXXXX
trademark /trade dress in China or anywhere else in the world and
shall assist Party A in any actions against unauthorized infringement
of the XXXXXXXX or XXXXXXXX trademark/trade dress; and
(k) Party B understands that Party A agrees to appoint it as Designated
Import Agent for China and Hong Kong based on Party B's
representations and warranties of its ability to fulfill all of Party
B's responsibilities and obligations under this Paragraph and/or this
Contract. If because of Party B's convenience or any other reason(s),
Party B delegates or subcontracts out any of its responsibilities and
obligations under this Paragraph and/or this Contract to a third
party, Party B still has to bear full responsibility for all of its
responsibilities and obligations under this Paragraph and/or this
Contract.
4. Responsibilities of Party A.
(a) Party A is responsible for compliance with imported product
specifications, quality, quantity, packaging and inspection
requirements as provided for in its Product sales contracts with its
customers. If Party B as Import Agent discovers during the import
process any damage, discrepancy or other problems relating to the
imported Products, Party B agrees to notify Party A of the relevant
facts by facsimile as soon as possible and assist Party A in
requesting compensation from the insurance company and/or the
responsible party. Party A is also
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obligated to make corrections and undertake remedial actions as soon
as possible. If Party B discovers any problems or receive any Product
complaints after the Products have entered China or Hong Kong, Party A
agrees to provide Party B with appropriate support depending on the
circumstances.
(b) Party A agrees to promptly notify Party B if an Product shipments made
to China and Hong Kong require importation documentation and customs
clearance by Party B and provide Party B with any necessary product
and transportation documentation. In addition, Party A shall reimburse
Party B for the payment of any necessary taxes, customs tariffs,
inspection charges and reasonable out-of-pocket expenses actually
incurred for such shipments (as documented by Party B in a form
satisfactory to Party A) either through deductions by Party B as
provided for under Paragraph 3(e ) above or by direct payment to Party
B;
(c) Party A will request its Chinese and Hong Kong customers to use Party
B as their respective import agent for their Product purchases from
Party A. However if any Party A customer has the ability to arrange
for its own importation, such a customer is not obligated to use Party
B as import agent;
(d) In consideration of Party B performance of its obligations under this
Contract, Party A shall pay Party B an Import Agent Fee in the amount
of Two Percent (2 %) of the gross value of Party A's goods handled by
Party B as Import Agent. The gross value does not take into account
any discounts or preferences given by Party A to its customers. Party
A will pay Party B the Import Agent Fee within Thirty (30) Days after
the date of the Xxxx of Lading of each shipment, unless payments have
been collected and deductions have been made by Party B pursuant to
Paragraph 3(e ) above. Notwithstanding the above agreement, both
Parties agree that Party B is not entitled to receive an Import Agent
Fee from Party A for the Product shipments which it imports for
itself, its parent company(ies) and/or its subsidiaries.
(e) Any expenses which may arise during the import process of the Products
shall be borne by Party A and its customers (as may be agreed between
them). Examples of such expenses include cargo pickup fees at
ports/airports, transportation fees, customs declaration fees, taxes
(value added taxes), customs tariffs, product inspection fees
(including commodity inspection, plant material inspection and hygiene
inspection), storage fees, the costs of bank wire transfers of funds
to Party and any other reasonable out-of-pocket expenses. The payment
of these expenses shall be made at the same time as the payment for
the Import Agent Fee for the shipments in question. Notwithstanding
the above agreement, both Parties agree that Party B is not entitled
to receive any reimbursements for import-related expenses from Party A
for the Product shipments which it imports for itself, its parent
company(ies) and/or its subsidiaries;
(f) To avoid Party B advancing funds for expenses to Party A, the Parties
agree that prior to any importation of the Product shipment(s), Party
B shall submit an estimate of all import costs to Party A. Within Ten
(10) days after the date of the Xxxx of Lading for the Product
shipment, Party A shall remit by TT to Party B a mutually agreed to
amount to cover such import costs. In addition, Party A will provide
Party B a Letter of Credit of Thirty Thousand US Dollars (US$30,000)
which shall be drawn by Party B if and only if:
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(i) Party A ships to Party B without sending the import costs by TT
to Party B within the designated time; or
(ii) material non-compliance by Party A of the Chinese governmental
import requirements as set out in Attachment A to the XXXXXXXX
Brand Frozen Concentrated Fruit Juices Sales and Marketing
Contract executed by the Parties on _______________ led to Party
B's payment of a penalty and/or other unexpected expenditures
levied by the Chinese Government. Party B shall provide Party A
with reports on expenses and accounts every Thirty (30) days.
(g) Party A guarantees that its Product shipments t be handled by Party B
shall conform with the quality, quantity, packaging and size
requirements as specified in the contracts between Party A and its
customers regarding such shipments and as stated in the documents
prepared by Party A for use in the importation process;
(h) Party A guarantees that it is the owner of the XXXXXXXX trademark and
reaffirms its compliance with all relevant laws and regulations
regarding the protection of intellectual property rights in China and
the USA; and
(i) Party A agrees to indemnify and hold harmless Party B for any
responsibilities and expenses for which Party B is held liable in
performance of its obligations under this Contract caused by the
negligence, mistakes or breach of the Contract by Party A or a third
party, provided that Party A shall not be liable for any
responsibilities or expenses caused by the negligence, mistakes or
breach of the Contract by Party B or any third party to which Party B
delegates or subcontracts out any of its obligations under this
Contract.
5. Term of Contract.
(a) This Contract is effective for One (1) year fro the date of the
signing of the Contract (the "Initial Contract Period").
(b) At the end of the Initial Contract Period, the Parties shall review
their experience with the importation of the Products, including
information on the quantity of Products successfully imported by Party
B, the speed of the products clearing through customs, the amount of
damaged goods, the speed of collections and remittances and the amount
of expenses involved, and determine in writing whether this Contract
would be renewed. If the Parties agree in writing to renew this
Contract after the expiration of the Initial contract Period, the
Contract shall be automatically renewed upon the expiration of each
extension unless it is terminated by either Party for cause.
(c) In addition, this Contract may be terminated either during the Initial
Contract Period or any subsequent extension under any of the following
circumstances:
(i) If one Party has not performed its obligations under a material
provision of the Contract even though it is capable of performing
such obligations and that Party continues to not perform its
obligations within Twenty One (21) days after it has received a
written
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request from the other Party demanding performance, then the
other Party may terminate this Contract by giving written notice
of termination to that Party; or
(ii) If one Party voluntarily or involuntarily goes into liquidation
or bankruptcy or is unable to repay its debts owed to the other
Party as such debts become due, then the other Party may
terminate this Contract by giving written notice of termination
to that Party.
(d) Notwithstanding the above provisions, the permission given by Party B
in Paragraph 3(h) above regarding the use of its name and address on
the product label is valid for a period of Three (3) years from the
date of this Contract or any extension and is irrevocable.
Furthermore, any termination of this Contract for whatever reason does
not affect the enforcement of any Party rights under this Contract,
including, but not limited to, the right to receive payment for any
amounts due.
6. Other Provisions.
(a) Any provision of this Contract shall not be interpreted as a
partnership or joint venture relationship.
(b) Any changes to this Contract shall be approved by mutual consent of
both Parties and confirmed in writing.
(c) This Contract shall inure to the benefit of and be binding upon the
successors and assigns of the Parties hereof.
(d) Any Party may be excused from its obligations t the other Party under
this Contract when and to the extent that performance is delayed or
prevented by any Force Majeure Event (for example, a war or a natural
disaster but does not include financial difficulties). However the
Party affected by the Force Majeure must notify the other Party in
writing by facsimile that a Force Majeure Event has occurred as soon
as possible. After the Force Majeure Event has passed, the Party
originally affected by the Force Majeure Event shall resume
performance of its responsibilities and obligations under this
Contract as soon as possible.
(e) Both Parties reaffirm that they will act in ful compliance of all
applicable laws and regulations, including but not limited to the
United States Foreign Corrupt Practices Act.
(f) Both Parties agree that the subject matter and the rights and
obligations set out in this Contract relate to private commercial
activities. Each Party shall irrevocably waive to the fullest extent
possible and shall not claim in any jurisdiction any immunity
(including but not limited to "Sovereign Immunity") from any action
relating to this Contract taken by one Party against the other Party.
(g) This Contract sets forth the entire agreement and understanding of the
Parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings relating to the subject matter
hereof.
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(h) This Contract has been written in both English and Chinese. In case of
conflict, the English version shall govern.
(i) Both Parties agree to resolve any dispute relating to or arising under
this Contract through friendly discussions. In the event that a
mutually satisfactory resolution cannot be reached within Thirty (30)
days after a dispute has arisen, both Parties agree that any Party may
on its own refer any dispute to arbitration. Each Party hereby
irrevocably waives any rights to establish the liability of or seek
compensation from the other Party to this Contract through any legal
channel other than arbitration (but this waiver does not restrict a
Party use of legal channels to enforce an arbitration award rendered
in accordance with this Paragraph). Any arbitration shall be final and
binding on both Parties and shall be conducted by a panel of three
arbitrators in Hong Kong under the applicable rules of the Hong Kong
International Arbitration Centre according to the plain meaning of the
language of this Contract (and if necessary also according to general
international commercial law principles without regard to any choice
of law principles therein). Both Parties irrevocably agree that the
scope of any arbitration shall be limited to determining the Parties'
liability relating to any dispute and the monetary amount of actual
damages (with no provision for so-called punitive damages). Both
Parties irrevocably agree that within Thirty (30) days after an
arbitration award is rendered, the losing Party to the arbitration
shall pay the winning Party to the arbitration the monetary amount of
actual damages set out in the arbitration award plus an additional Ten
Percent (10%) as compensation. If the arbitration award determines
that both Parties are liable to each other, both Parties shall settle
what they owe each other within Thirty (30) days after the date of the
arbitration award according to the actual damages set out in the
arbitration award.
Party A: Party B:
XXXXXXXX CITRUS SALES GOLDEN WING MAU
OF FLORIDA, INC. ENTERPRISE DEVELOPMENT
Co. LTD.
/s/ Xxxxxx Xxxxxxx /s/ illegible
Signature/Company Seal: Signature/Company Seal:
Representative: Representative:
Date: 02/09/2001 Date: 02/24/2001
Witnessed By: Witnessed By:
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