Exhibit 10.21
EXECUTION COPY
AGENCY AGREEMENT
BETWEEN
SEA MASTER LOGISTICS (HOLDING) LIMITED
(AS PRINCIPAL)
AND
SEA MASTER LOGISTICS (CHINA) LIMITED
(AS AGENT)
DATED THE 22ND DAY OF SEPTEMBER 2006
1
THIS AGREEMENT is made on the 22nd day of September 2006
BETWEEN
(1) SEA MASTER LOGISTICS (HOLDING) LIMITED, a company incorporated under the
laws of Hong Kong, with company registration number 1057368 and whose
registered office is at Rooms 0000-0 Xxxxx Insurance Group Xxxxxxxx, 000
Xxx Xxxxx Xxxx, Xxxxxxx, Xxxx Xxxx (the "PRINCIPAL"); and
(2) SEA MASTER LOGISTICS (CHINA) LIMITED, a company incorporated under the
laws of the People's Republic of China ("PRC"), with business registration
number 3101092011431 and whose place of business is at Room 704-Y, 710 Si
Ping Road, Shanghai, the PRC (the "AGENT").
WHEREAS
(A) The Principal is engaged in the business of providing ocean transportation
intermediary services to major retailers, wholesalers, importers, and
domestic manufacturers in the Transpacific and South African trade lanes
and possess or will possess all required licenses to conduct business
through all of its offices as an international freight agency.
(B) The Agent maintains facilities, property, and conducts all of its business
in the PRC as a Class A licensed international freight agent in ocean, air
and land transportation.
(C) By a Sale and Purchase Agreement dated 28 September 2006 between Maritime
Logistics US Holdings Inc. ("Maritime Logistics") and the Principal (the
"Sale and Purchase Agreement"), it is contemplated that Maritime
Logistics, through its wholly-owned subsidiary SeaMaster Logistics, Inc.,
will acquire the shares in and of the Principal and the Principal has
executed an Agreement to acquire the Agent (the "Acquisition"). Pursuant
to the Sale and Purchase
2
Agreement and subject to and upon approval by the necessary governmental
authority of the contemplated Acquisition of the Agent or assets of the
Agent by the Principal, the Agent will become the subsidiary of the
Principal wholly owned by the Principal.
(D) The Agent agrees to act as the exclusive agent of the Principal to provide
the Services (as defined below) in the Territory (as defined below)
subject to and in accordance with the terms and conditions of this
Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:-
"INTELLECTUAL PROPERTY" means any patent, copyright, registered
design, trade xxxx or other industrial or
intellectual property right subsisting in
the Territory in respect of the Services,
and applications for any of the foregoing;
"PRC" means the People's Republic of China
"RESTRICTED INFORMATION" means any information which is disclosed to
the Agent by the Principal under or in
connection with this Agreement (whether
orally or in writing, and whether or not
such information is expressly stated to be
confidential or marked as such) including
all of the Principal's trade secrets,
vendors, proprietary information, customer
lists, account books, service contracts and
records, of any kind.;
3
"RMB" means Renminbi, the lawful currency of the
PRC
"SERVICES" means international freight agency by
shipment and land transport, civil aviation
transport sales, international express
delivery, road freight, cargo storage;
distribution of imported and exported goods,
customs services (including custom
clearance), applying for commodity
inspection, reinsurance, container
devanning, xxxx replacement, shipping fee
collection, transit, door-to-door transport
of imported and exported goods and space
booking; and any other services requested by
Principal including those listed in Schedule
A;
"TERRITORY" means the People's Republic of China;
1.2 Any reference in this Agreement to "writing" or related expressions
includes a reference to cable, facsimile transmission, e-mail or
comparable means of communication.
1.3 Any reference in this Agreement to any provision of a statute shall be
construed as a reference to that provision as amended, re-enacted or
extended at the relevant time.
1.4 The headings in this Agreement are for convenience only and shall not
affect its interpretation.
2 APPOINTMENT OF AGENT
2.1 By this Agreement the Principal appoints the Agent as exclusive agent for
the purpose of
4
providing the Services in the Territory and the Agent agrees to act in
that capacity, subject to the terms and conditions of this Agreement.
2.2 Save with the Principal's consent, the Agent shall not during the
continuance of this Agreement accept the appointment of any other person,
firm or company for the provision of the Services in the Territory or for
the solicitation of customers for the Services in the Territory i.e. the
Agent shall provide the Services exclusively to the Principal.
3 THE AGENT'S DUTIES
3.1 The Agent shall use its best endeavors to provide the Services in the
Territory and to solicit orders for the Services in the Territory, and
generally to assist the Principal in the provision of the Services in the
Territory, but the Agent shall not be entitled to provide the Services or
to enter into any negotiations or contracts for the provision of the
Services on behalf of the Principal, or to bind the Principal in any way.
3.2 The Agent shall conduct the provision of the Services in the Territory
with all due care and diligence and shall cultivate and maintain good
relations with customers and potential customers in the Territory in
accordance with sound commercial principles.
3.3 Subject as provided in this Agreement and to any directions which the
Principal may from time to time properly give, the Agent shall be entitled
to perform its duties under this Agreement in such manner as it may think
fit.
3.4 The Agent shall procure that its representatives:
3.4.1 make themselves available, at all reasonable times and upon
reasonable notice, to the Principal for the purposes of consultation
and advice relating to this Agreement and the Services;
5
3.4.2 attend meetings with representatives of the Principal and such
customers or prospective customers in the Territory as may be
necessary for the performance of its duties under this Agreement;
3.4.3 make such calls upon customers or potential customers in the
Territory for the purpose of promoting the Services as the Agent may
think fit; and
3.4.4 attend such trade exhibitions and other functions in the Territory
as the Principal or the Agent may think commercially suitable for
the purpose of promoting the Services.
3.5 The Agent, if requested by, the Principal, agrees to provide statistical
information or data covering the movement of cargo from his area, in
accordance with Principal's procedure. This information is to be provided
free of charge to the Principal. If this information can only be obtained
through sources which charge, the Principal agrees to the reimbursement of
these expenses billed to the Agent, provided the cost will be agreed upon
beforehand between the Agent and the Principal.
3.6 Upon request, the Agent shall provide, at no cost to the Principal, in any
or all offices, suitable desk space for a representative of the Principal
who may be assigned either temporarily or permanently to promote the
Principal's business or supervise its interests in the Agent's area.
3.7 The Agent shall promptly notify the Principal of all enquiries concerning,
and orders for, the Services which it receives from customers and
prospective customers both within and outside the Territory.
3.8 As soon as practicable after commencement of services as agent, the Agent
shall inform the
6
Principal of all tariffs, wage scales and customary charges for services,
the cost of which the Principal will bear that are covered by this
Agreement.
3.9 The Agent also agrees to provide the Principal with monthly reports
containing information with respect to general conditions at the locations
covered by this Agreement and will notify the Principal immediately of any
changes in said information.
3.10 The Agent will also cooperate with the Principal in obtaining any
information which the Principal might request concerning transshipment
facilities, rates, etc.
3.11 Principal or Maritime Logistics participates in the US Customs Service
Vessel Automated Manifest System and takes responsibility for filing all
cargo declarations 24 hours prior to a vessel loading in accordance with
US Customs. Agent must provide Principal or Maritime Logistics with all
required information to comply with this program in the requisite time
frame. Agent agrees to timely submit to Principal or Maritime Logistics
true and accurate information to enable Principal or Maritime Logistics to
make the required submissions to US Customs and agrees to indemnify and
hold harmless Principal or Maritime Logistics for any damages caused by
Agents failure to comply hereunder.
3.12 The Agent shall in relation to the Services:
3.12.1 describe itself as "Agent" for the Principal;
3.12.2 not hold itself out, or permit any person to hold it out, as being
authorized to bind the Principal in any way;
3.12.3 not do any act which might reasonably create the impression that it
is so authorized to bind Principal; and
7
3.12.4 The Agent further guarantees that its business organization does
not, under the laws of its state/country of domicile imply an
employer/employee relationship between the Principal and the Agent,
or the Principal and any of the Agent's individual employees.
3.13 The Agent shall be responsible for obtaining all licenses, permits and
approvals which are necessary or advisable for the provision of the
Services in the Territory and for the performance of its duties under this
Agreement; provided, however, Principal shall establish a "foreign owned
entity' in the PRC to effectuate the Acquisition of the Agent by the
Principal and Agent shall assist Principal as requested to consummate
their transaction.
3.14 The Agent shall not during the continuance of this Agreement change its
name or business address without the consent of the Principal.
3.15 The Agent shall indemnify and hold the Principal harmless against and from
any and all claims or liabilities against the Principal, its employees or
agents, resulting directly or indirectly from, or arising out of, any act
or failure to act by the Agent or any employees of the Agent.
3.16 Agent shall be liable for any loss, damage or claim for all cargo in the
care of Agent, or Agent's nominated terminal, trucking, subagent or
carrier that are uninsured and carried on Principal's airway bills and
bills of lading. Agent shall carry sufficient insurance to cover these
liabilities. All of the Principal's airway bills and bills of lading
issued by Agent shall be insured under Principal's liability insurance
policy.
4 PROVISION OF THE SERVICES
4.1 Services in the Territory shall be provided on such terms as the Principal
in its absolute discretion may from time to time determine, and:
8
4.1.1 the Principal shall provide to the Agent copies of those terms as
varied from time to time;
4.1.2 the Agent shall bring to the notice of all customers and prospective
customers for the Services in the Territory those terms;
4.1.3 the Agent shall not make or give any promises, warranties,
guarantees or representations concerning the Services other than
those contained in those terms.
4.2 Unless otherwise agreed in writing, the Agent shall not be entitled to
receive payments on the Principal's behalf in respect of provision of the
Services.
4.3 All manifests, airway bills, bills of lading or any other document or
forms used in the performance of this Agreement together with all amounts
received by Agent for prepaid freights on outward cargo, freight payable
at destination on inward, cargo or other charges collected for account of
Principal, shall be and remain the property of Principal, shall be held in
trust by Agent for Principal and shall at all times be kept separate and
apart from Agent's other documents, papers and monies. Agent shall be
liable to Principal for a returned checks or drafts for customers
solicited by Agent for which Principal is unable to collect funds for
whatever reason. Agent shall account to Principal at Principal's office as
Principal may designate in accordance with instructions to be communicated
to Agent by Principal. Agent agrees to remit promptly to Principal monies
received for Principal's account and Principal, on its part, agrees to pay
Agent as agreed upon in Schedule B. Agent shall maintain separate records
and accounts for the recording of all transactions by Agent on behalf of
Principal. These and related or supporting documents shall be open to
inspection by Principal.
4.4 The Agent shall notify the Principal within 24 hours of its receipt of a
claim. The Agent agrees and is hereby authorized to settle promptly all
bona fide claims against the Principal
9
for cargo loss or damage, after due in accordance with Principal's current
processing instructions and up to the limit of $50,000 per claim, but
always with written notification to the Principal. The Agent shall submit
all larger claims to the Principal for instructions. The Agent shall
render any necessary assistance to the Principal's attorney in connection
with any claim made or received. Should any cargo claims lead to a
lawsuit, compensation will be given to the Agent according to the amount
of work performed.
5 INTELLECTUAL PROPERTY
5.1 The Agent shall promptly and fully notify the Principal of any actual,
threatened or suspected infringement in the Territory of any Intellectual
Property of the Principal which comes to the Agent's notice, and of any
claim by any third party so coming to its notice that the provision of the
Services in the Territory infringes any rights of any other person, and
the Agent shall at the request and expense of the Principal do all such
things as may be reasonably required to assist the Principal in taking or
resisting any proceedings in relation to any such infringement or claim.
5.2 Nothing in this Agreement shall give the Agent any rights in respect of
any trade names or trademarks used by the Principal in relation to the
Services or of the goodwill associated with them, and the Agent
acknowledges that, except as expressly provided in this Agreement, it
shall not acquire any rights in respect of any trade names or trade marks
and that all such rights and goodwill are, and shall remain, vested in the
Principal.
5.3 The Agent shall not use in the Territory any trade marks or trade names so
resembling the trade marks or trade names of the Principal as to be likely
to cause confusion or deception.
5.4 The Agent shall, at the expense of the Principal, take all such steps as
the Principal may reasonably require to assist the Principal in
maintaining the validity and enforceability of the Intellectual Property
of the Principal during the continuance of this Agreement.
10
5.5 Without prejudice to the right of the Agent or any third party to
challenge the validity of any Intellectual Property of the Principal, the
Agent shall not do or authorise any third party to do any act which would
or might invalidate or be inconsistent with the Intellectual Property of
the Principal and shall not omit or authorise any third party to omit to
do any act which, by its omission, would have that effect or character.
6 SUB-AGENTS
6.1 With the prior written consent of the Principal, the Agent may, at its
sole cost and expense, appoint one or more sub-agents to provide the
Services in the Territory and may delegate to such sub-agents its duties
hereunder provide however that as between the Principal and the Agent, the
Agent shall be solely responsible to the Principal for the performance of
this Agreement.
6.2 The Agent shall indemnify, defend and hold the Principal harmless against
and from any and all claims for compensation or expense, and all damages
or claims arising out of the activities of such sub-agents.
7 RIGHTS AND DUTIES OF THE PRINCIPAL
7.1 The Principal shall be entitled:
7.1.1 for any reason to reject any order for the Services; and
7.1.2 from time to time to extend the range of Services, or discontinue
any of the same, upon giving not less than one (1) month's notice in
writing to the Agent.
7.2 The Principal shall:
11
7.2.1 at its own expense promptly supply the Agent with such advertising
and promotional materials, literature and information as the Agent
may from time to time reasonably require for the purpose of
complying with its obligations under this Agreement;
7.2.2 supply up to date copies of any standard price lists which it has
for the provision of the Services in the Territory;
7.2.3 honour any contracts for the provision of the Services to customers
in the Territory introduced to the Principal by the Agent;
7.2.4 promptly and efficiently deal with any after service enquiry
relating to the Services raised by a customer in the Territory;
7.2.5 comply with all the applicable laws and regulations relating to the
provision of the Services.
8 WARRANTIES OF THE AGENT
8.1 The Agent warrants to the Principal as follows:
8.1.1 the Agent is a corporation duly organized, validly existing and in
good standing under the laws of the People's Republic of China;
8.1.2 the Agent has the requisite power to duly and validly execute this
Agreement and perform its duties and obligations hereunder;
8.1.3 this Agreement does not constitute any breach of any agreement or
law by which the Agent is bound;
12
8.1.4 any consents and approvals required from its shareholders and board
of directors of the Agent pursuant to its Articles of Association
have been obtained including for this Agreement and the Acquisition;
and
8.1.5 all necessary licenses, permits and approvals required from relevant
government authorities have been obtained by the Agent and the Agent
shall use its best endeavours to obtain all such necessary licenses,
permits and approvals if the same have not so been obtained at the
date of this Agreement.
8.2 Each warranty shall be treated as a separate warranty and the
interpretation of a warranty shall not be restricted by reference to or
inference from another warranty.
8.3 The Agent warrants to the Principal that each of the warranties is
accurate and not misleading at the date of this Agreement and during the
continuance of this Agreement.
8.4 If any of the warranties is found to be false or incorrect, then the Agent
shall indemnify and hold the Principal harmless from any damage, loss,
expense or other disadvantage incurred of any kind, which would not have
occurred if such warranty had been true and correct.
9. FINANCIAL PROVISIONS
In consideration of the obligations undertaken by the Agent under this
Agreement, the Principal shall pay the Agent a fee listed on Schedule B.
10 LIABILITIES
10.1 The Agent agrees to issue the airway bills and/or bills of lading
according to Schedule C.
13
The Agent must strictly follow these terms and conditions before issuing
transportation documents.
10.2 The Agent should provide the coverage of legal liabilities through a well
known insurance company. The deductible of the coverage should not exceed
US$1000 for less than container load (LCL) shipments and/or US$1500 for
the full container load (FCL) shipments.
11 CONFIDENTIALITY AND NON-COMPETE
11.1 Except as provided by clauses 9.2 and 9.3, the Agent shall at all times
during the continuance of this Agreement and after its termination:
11.1.1 use its best endeavours to keep all Restricted Information
confidential and accordingly not to disclose any Restricted
Information to any other person; and
11.1.2 not use any Restricted Information for any purpose other than the
performance of its obligations under this Agreement.
11.2 Any Restricted Information may be disclosed by the Agent to:
11.2.1 any customers or prospective customers;
11.2.2 any governmental or other authority or regulatory body; or
11.2.3 any employees of the Agent or of any of the aforementioned persons,
to such extent only as is necessary for the purposes contemplated by this
Agreement, or as is required by law and subject in each case to the Agent
using its best endeavours to ensure that
14
the person in question keeps the same confidential and does not use the
same except for the purposes for which the disclosure is made.
11.3 Any Restricted Information may be used by the Agent for any purpose, or
disclosed by the Agent to any other person, to the extent only that:
11.3.1 it is on the date of this Agreement, or becomes, public knowledge
through no fault of the Agent (provided that in doing so the Agent
shall not disclose any Restricted Information which is not public
knowledge); or
11.3.2 it can be shown by the Agent, to the reasonable satisfaction of the
Principal, to have been known to the Agent prior to its being
disclosed by the Principal to the Agent.
11.4 Agent shall not compete with Principal during the term of this agreement
and shall not solicit in any manner any customers or employees of
Principal for two (2) years after the termination of this Agreement,
subject to the consummation of the Acquisition of Agent.
12. FORCE XXXXXX
Except as may be otherwise specifically provided herein, no party shall be
deemed responsible with respect to its failure to perform any term or
condition of this Agreement if such failure wholly or partly, is due to
war (whether declared or not), civil commotion, invasion, rebellion,
sabotage, hostilities, strikes, labor disputes, closure, other work
stoppages, governmental (national, state, prefectural, municipal or other)
regulations or controls taken or issued in sovereign capacity, or acts of
God and in each case the failure or circumstance is outside of its
control.
15
13 DURATION AND TERMINATION
13.1 This Agreement shall come into force on the date of this Agreement and,
subject as provided in clauses 13.3, shall continue in force for the
interim period from the date of the Sale and Purchase Agreement until the
date of consummation and approval by the PRC authority of the Acquisition
of the Agent by the Principal as contemplated under the Sale and Purchase
Agreement.
13.2 Either party shall be entitled forthwith to terminate this Agreement by
written notice to - the other if
13.2.1 that other party commits a material breach of any of the provisions
of this Agreement and such party fails to remedy the same (unless
waived in writing) within thirty (30) days after receipt of a
written notice (including notice to Maritime Logistics) giving full
particulars of the breach and requiring it to be remedied; or
13.2.2 the parties mutually agree to terminate this Agreement in writing
with the consent of Maritime Logistics.
13.3 For the purposes of clause 13.2.1, a material breach shall be considered
capable of remedy if the party in breach can substantially comply with the
provision to the satisfaction of the other party.
13.4 Any waiver by either party of a breach of any provision of this Agreement
shall not be considered as a waiver of any subsequent breach of the same
or any other provision of this Agreement.
13.5 The rights to terminate this Agreement given by this clause shall be
without prejudice to any other right or remedy of either party in respect
of the breach concerned (if any) or any other breach.
16
14 CONSEQUENCES OF TERMINATION
14.1 Upon the termination of this Agreement for any reason:
14.1.1 the Agent shall within thirty (30) days send to the Principal, or
otherwise dispose of in accordance with the directions of the
Principal, all advertising and promotional material or information
relating to the Services then in the possession of the Agent;
14.1.2 the Agent shall cease to promote, market, advertise or solicit
customers for the Services;
14.1.3 the provisions of clauses 8 and 11 shall continue in force in
accordance with its terms;
14.1.4 the Agent shall have no claim against the Principal for
compensation for loss of agency rights, loss of goodwill or any
similar loss (except unpaid commission); and
14.1.5 subject as otherwise provided in this Agreement and to any rights
or obligations which have accrued prior to termination, neither
party shall have any further obligation to the other under this
Agreement.
14.2 The costs incurred by the Agent in complying with clause 11.1.1 shall,
where the termination is by the Agent under clause 10.2, be for the
account of the Principal and, in any other case, be for the account of the
Agent.
15 NATURE OF AGREEMENT
15.1 The Principal shall be entitled to perform any of the obligations
undertaken by it and to
17
exercise any of the rights granted to it under this Agreement through any
other company which at the relevant time is its holding company or
subsidiary (as defined by section 2 of the Companies Ordinance of Hong
Kong) or the subsidiary of any such holding company of Maritime Logistics
and any act or omission of any such company shall for the purposes of this
Agreement be deemed to be the act or omission of the Principal.
15.2 Upon the prior consent of Maritime Logistics, the Principal may assign
this Agreement and the rights and obligations under this Agreement.
15.3 This Agreement is personal to the Agent, which may not without the written
consent of the Principal, assign, mortgage, charge, encumber or dispose of
any of its rights under this Agreement.
15.4 Nothing in this Agreement shall create, or be deemed to create, a
partnership or the relationship of employer and employee between the
parties.
15.5 This Agreement contains the entire Agreement between the parties with
respect to the subject matter of this Agreement, supersedes all previous
agreements and understandings between the parties with respect thereto,
and may not be modified except by an instrument in writing signed by the
duly authorized representatives of the parties.
15.6 Each party acknowledges that, in entering into this Agreement, it does not
do so on the basis of, and does not rely on, any representation, warranty
or other provision except as expressly provided in this Agreement, and all
conditions, warranties or other terms implied by statute or common law are
by this Agreement excluded to the fullest extent permitted by law.
15.7 If any provision of this Agreement is held by any court or other competent
authority to be void or unenforceable in whole or part, this Agreement
shall continue to be valid as to the
18
other provisions of this Agreement and the remainder of the affected
provision.
16 PROPER LAW AND JURISDICTION
This Agreement shall be governed by and construed in all respects in
accordance with the laws of Hong Kong, and each party hereby submits to
the non-exclusive jurisdiction of the Hong Kong Courts.
17 NOTICES AND SERVICE
17.1 Any notice or other information required or authorised by this Agreement
to be given by either party to the other may be given by hand or sent (by
first class pre-paid post, cable, facsimile transmission, e-mail or
comparable means of communication) to the other party at the address
referred to in clause 17.4.
17.2 Any notice or other information given by post pursuant to clause 17.1
which is not returned to the sender as undelivered shall be deemed to have
been given on the third day after the envelope containing the same was so
posted; and proof that the envelope containing any such notice or
information was properly addressed, pre-paid, registered and posted, and
that it has not been so returned to the sender, shall be sufficient
evidence that such notice or information has been duly given.
17.3 Any notice or other information sent by facsimile transmission, e-mail or
comparable means of communication shall be deemed to have been duly sent
on the date of transmission, provided that a confirming copy is sent by
first class pre-paid post to the other party at the address referred to in
clause 17.4 within twenty-four (24) hours after transmission.
17.4 Service of any legal proceedings concerning or arising out of this
Agreement and any notice
19
to a party hereto pursuant to this Agreement shall be effected by causing
the same to be delivered to the party to be served at the following
address:
If to the Principal:
Sea Master Logistics (Holding) Limited
Rooms 0000-0 Xxxxx Insurance Group Xxxxxxxx
000 Xxx Xxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
Attention: Xxxxx Xxxxx
If to the Agent:
Sea Master Logistics (China) Limited
Room 704-Y, 000 Xx Xxxx Xxxx
Xxxxxxxx, xxx XXX 000000
Attention:
or to such other address as may from time to time be notified in writing
by the party concerned.
20
IN WITNESS WHEREOF this Agreement has been executed on the day and year first
above written.
SIGNED by )
)
for and on behalf of )
SEA MASTER LOGISTICS (HOLDING) LIMITED )
in the presence of: )
SIGNED by )
)
for and on behalf of )
SEA MASTER LOGISTICS )
(CHINA) LIMITED )
in the presence of:
21
SCHEDULE A
ADDITIONAL SERVICES TO BE PROVIDED BY AGENT
1. The Principal appoints the Agent as its agent to sell and promote the sale of
freight transportation, in accordance with the Principal's conditions of
carriage and standard policies.
2. The Agent will submit reports to the Principal at its head office, except
that accounting may specifically be required by the Principal to be made to
other offices of the Principal.
3. The Agent will exercise its best efforts and use the utmost skill, care and
attention (and employ persons with experience and the capability) to undertake
for the Principal all acts and duties relating to the import and export of
goods, including, documentation preparation and the transportation, warehousing
and distribution of goods.
4. Where the Principal consigns cargo to the Agent, the Agent shall arrange for
efficient handling of the cargo in its Territory in compliance with the
instruction and working procedures prescribed by the Principal and to provide
the following services:
(a) to maintain favorable customer relations with the Principal's clients
or prospective clients;
(b) to arrange for the solicitation, procuring and engagement of the
maximum quantity of cargo, space and commodity limitations prescribed by the
Principal;
(c) to co-ordinate and give notice to every consignees of the cargo and/or
the agents of the arrival of the cargo and to respond promptly to any quires
from the consignee;
22
(d) to arrange for reception, discharge and release of cargo and to issue
delivery order, which is only exchanged against actual presentation/receive of
they least one original house airway bills and house bills of lading duly
endorsed or notification of an express release;
(e) to obtain and/or prepare, issue and sign all shipping documents
related to freight traffic (such as manifests, dock receipts, airway bills,
bills of lading, etc.) on behalf of the Principal, and according to accepted
trade customs;
(f) to deliver all relevant documents to the consignees and/or their
designated customs brokers or to arrange for customs clearance of the cargo on
behalf of the consignees;
(g) to obtain, sign, seal, endorse and deliver all bonds, permits, airway
bills, bills of lading, bills of exchange, declarations, claims of any nature,
or other means of payment or collateral security into the Agent's possession,
including drawbacks and claims of any nature for reimbursement of duties or
taxes;
(h) to arrange warehousing and inland transport of the cargo as many are
necessary for delivery of cargo to the consignee;
(i) to receive all payments and pay all sums of money, freight and other
charges as are now due or become due and payable by Principal as instructed by
Principal; and endorse for Principal, as instructed by Principal, for
Principal's account all such payments, and shall fully and accurately account to
Principal for all collections and payments to Principal, monthly, and as
requested by Principal. In the absence of prior written consent from the
Principal, no credit shall be extended to any consignees and if any such credit
is extended, it shall be at the sole risk and expenses of the Agent. For bank
consignment, Agent must obtain original xxxx of lading with proper bank
endorsement issued by the Principal prior to the release of the shipment. Agent
will be accountable if there is a failure to do so by the Agent;
23
(j) to be responsible for filing all rates in Principal's tariffs prior to
receipt of cargo;
(k) to issue Principal's airway bills and bills of lading and other
documentation for all services performed on Principal's behalf, and Principal's
name and license number shall be shown on all shipping documentation;
(l) to show Principal or itself as "agent for Sea Master Logistics
(Holding) Limited" in the shipping documentation of all Master airway bills and
bills of lading;
(m) to co-ordinate the activities of all forwarders, customs brokers,
governmental departments and agencies and other authorities and trade
organizations in connection with the handling of the cargo in the Territory;
(n) to investigate and notify the Principal immediately on becoming aware
of any actions, suits or claims in connection with the Principal damages to the
cargo affecting the Principal's interest;
(o) to assist in the processing of cargo or any other claims in accordance
with the direction from the Principal, at all times holding third parties liable
in writing and informing the Principal of any such claim or liabilities by
e-mail or facsimile;
(p) not to incur any liability or enter any contractual commitment on
behalf of the Principal in connection with cargo or other claims other than with
the Principal's prior written approval;
24
(q) to assist the Principal's lawyers, surveyors, and other parties
advising on claims on behalf of the Principal in the performance of their tasks
in the Territory;
(r) to consolidate and deconsolidate less than containerload shipments as
required;
(s) to ensure all invoices issued are paid within the terms stated in
Principal's invoices, and Agent shall abide by Principal's shipping
documentation procedures;
(t) to maintain a system of internal control sufficient to provide
reasonable assurance to the Principal that all transactions related to this
Agreement are executed and that transactions are properly recorded in its books
and records;
(u) to ensure Agent will comply with all tariffs, rules and regulations,
receipts, airway bills, bills of lading, and other forms or reports reasonably
requested by Principal; all transportation services sold by Agent hereunder
shall be subject to Principal's terms of carriage in its tariffs, airway bills,
bills of lading or other documentation, and Agent shall inform Principal of all
information, instructions or requests to enable Principal to render efficient
service to its clients;
(v) maintain a separate account for the Principal and keep full and
accurate records of all its activities in connection with this Agreement and to
permit Principal or its employees to inspect all records of Agent, including
books, vouchers, bills of lading, invoices, and accounts relating to the sale of
ocean/air transportation services offered by Principal, and Principal may obtain
information from any director or officer of Agent; and
25
(w) to remit to the Principal all freights and other monies belonging to
the Principal by bank draft/telegraphic transfers on the 10th day of each month
for all money received in the prior month.
26
SCHEDULE B
RENUMERATION AND COMPENSATION
AIR SHIPMENT:
Pay the reasonable cost of Agent, subject to inspection
by SeaMaster Hong Kong on a quarterly basis.
OCEAN SHIPMENT:
Pay the reasonable cost of Agent, subject to inspection
by SeaMaster Hong Kong on a quarterly basis.
SEAMASTER LOGISTICS (HOLDING) SEAMASTER LOGISTICS (CHINA) LIMITED
LIMITED
____________________________________ ____________________________________
NAME: NAME
TITLE: TITLE:
Date: Date:
27
SCHEDULE C
1. The Principal's airway bills or bills of lading shall only be issued to
the Principal's nominated cargo or any cargo consigned to the Principal's
office.
2. Both parties shall issue on board bills of lading to shipper only after
shipment is confirmed on board by the carrier. The Principal's airway
bills or bills of lading on board date shall match the carrier's airway
bills/bills of lading on board date.
3. No airway bills or bills of lading shall be issued prior to receiving
cargo.
4. Both parties shall only issue clean on board airway bills or bills of
lading to cargo received in good and original condition. Any
irregularities must be marked in airway bills or bills of lading.
5. The Agent using Principal's airway bills or bills of lading shall forward
a copy of such documents to Principal on monthly basis for recordkeeping.
6. All Principal airway bills and/or bills of lading issued shall be in
accordance to Principal's selling rate and/or tariff filed with
governmental authorities. For any rates, commodities other than the
Principal's selling rates and/or tariff, the Agent must inform the
Principal's office in writing for proper filing and obtain the Principal's
approval prior to releasing the airway bills/bills of lading to shipper.
The Agent shall be liable for any penalty assessed by any governmental
authority for its failure to comply with this provision.
7. The Agent agrees to share any loss and damage claim against the
Principal's airway bills and/or bills of lading under the liabilities of
terms and conditions stated on the airway bills and bills of lading.
28