EXHIBIT 4.25
AGENCY AGREEMENT
THIS AGREEMENT is made as of the 23rd day of July, 0000
X X X X X X X:
HYDROGENICS CORPORATION, a company organized and existing
under the laws of Canada (the "Principal")
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HANKOOK BEP CO. LTD., a company organized and existing under
the laws of Korea (contracting on its own behalf and on behalf
of those companies worldwide whose voting shares it owns a
controlling interest, collectively referred to as the
"Agent").
RECITALS:
A. Principal is engaged in the manufacture of fuel cell test stations and
related devices;
B. Agent is in the business of representation of manufacturers and has the
resources to effectively market and sell the goods of Principal,
including the required technical knowledge of selling, distributing and
advertising processes and techniques, including knowledge of the local
laws, customs, market conditions, exchange control and international
finance;
C. Agent wishes to become agent of the Principal within the Territory
specified herein;
D. The parties are desirous of formalizing their relationship under the
terms of this Agreement.
THEREFORE the parties agree as follows:
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ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
Wherever used in this Agreement, unless there is something in the subject matter
or context inconsistent therewith, the following words and terms shall have the
respective meanings ascribed to them as follows:
(a) "AGREEMENT" means this agreement entitled "Agency Agreement"
and all instruments supplemental hereto or in amendment or
confirmation hereof;
(b) "FEE" means collectively, the Sales Commission and the
Services Commission;
(c) "FORCE MAJEURE" has the meaning given to such term in Section
9.4 of this Agreement;
(d) "NET INVOICE VALUE" has the meaning given to such term in
Section 2.5 of this Agreement;
(e) "NOTICE" has the meaning given to such term in Section 9.11 of
this Agreement;
(f) "PRODUCTS" means and is restricted to fuel cell test stations
that are manufactured and supplied by Principal, including
service and maintenance contracts and all related devices. For
greater certainty the term "Products" shall not include fuel
cell power generators and other non-testing products
manufactured by Principal. Principal reserves the right to add
a product to this Agreement, to discontinue a product, and to
modify or amend the standards and specifications of such
product and its packaging during the Term of this Agreement on
Notice to Agent. In such event, product added to, modified or
amended shall be considered to be Product and discontinued
product shall not be considered to be Product for the purposes
of this Agreement;
(g) "PRINCIPAL TRADE-MARKS" means the trade-names, trade-marks and
other commercial symbols of Principal which may be used in
connection with the sale
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or servicing of the Products, namely those trade-marks listed
in Schedule "A" of this Agreement;
(h) "SALES COMMISSION" has the meaning given to such term in
Subsection 3.1 (a) of this Agreement;
(i) "SERVICES AGREEMENT" has the meaning given to such term in
Subsection 3.1 (b) of this Agreement;
(j) "TERM" means and includes the initial and any renewal terms of
this Agreement;
(k) "TERRITORY" shall mean the geographic area of Korea; and
(l) "QUOTA" has the meaning given to such term in Section 2.5 of
this Agreement.
1.2 GENDER AND NUMBER
In this Agreement, words importing the singular include the plural and vice
versa and words importing gender include all genders.
1.3 ARTICLE AND SECTION HEADINGS
The insertion of headings and the division of this Agreement into articles and
sections are for convenience of reference only and shall not affect the
interpretation hereof.
1.4 ENTIRE AGREEMENT
This Agreement and any documents incorporated by reference herein constitute the
entire agreement between the parties pertaining to the subject matter hereof and
supersede all prior agreements, understandings, negotiations and discussions
with respect to the subject matter hereof whether oral or written. Except as
provided in such materials, there are no conditions, representations,
warranties, undertakings, promises, inducements or agreements whether direct,
indirect, collateral, express or implied made by Principal to Agent. No
supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by Principal and Agent.
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1.5 APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the laws of
the Province of Ontario and the laws of Canada applicable therein, including
when it is by its own term applicable, the United Nations Convention on
Contracts for the International Sale of Goods.
1.6 SEVERABILITY
If in any jurisdiction, any provision of this Agreement or its application to
any party or circumstance is restricted, prohibited or unenforceable, such
provision shall, as to such jurisdiction, be ineffective only to the extent of
such restriction, prohibition or unenforceability without invalidating the
remaining provision hereof and without affecting the validity or enforceability
of such provision in any other jurisdiction or its application to other parties
or circumstances.
1.7 NON-WAIVER
The failure of Principal to exercise any right, power or option given hereunder
or to insist upon the strict compliance with the terms and conditions hereof by
Agent shall not constitute a waiver of the terms and conditions of this
Agreement with respect to that or any other or subsequent breach thereof nor a
waiver by Principal of its rights at any time thereafter to require strict
compliance with all terms and conditions hereof including the terms or
conditions with respect to which Agent has failed to exercise such right, power
or option.
ARTICLE 2
GRANT
2.1 GRANT
Subject to the terms and conditions of this Agreement, Principal grants to
Agent the right to act as exclusive Agent of the Products within the Territory
to solicit orders and inquiries and generally promote the sale of the Products
in the Territory, and to use or display Principal Trade-marks in association
therewith.
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2.2 ACCEPTANCE
Agent accepts its appointment as the exclusive Agent of the Products in the
Territory upon the terms, provisions and conditions of this Agreement.
2.3 RESTRICTIONS
Agent shall not sell, distribute or advertise products which are similar to,
which perform the same functions as or which compete with the Products during
the Term of this Agreement without the prior written consent of Principal.
2.4 TERM
Unless terminated earlier pursuant to the termination provisions of this
Agreement, this Agreement shall remain in force for a period of two (2) years
from the date of execution.
2.5 PURCHASE REQUIREMENTS
Agent agrees to fulfill the minimum annual sales requirements (the "Quota") as
set out below:
Year 1 - US$ 750,000
Year 2 - US$ 1,000,000
The Quota shall be calculated on the Net Invoice Value of all sales of Product
in the Territory, excluding sales in the Territory effected pursuant to the
exercise by the Principal of the rights described in Subsection 5.2(a) hereof.
"Net Invoice Value" shall mean the amount charged to a customer in the Territory
exclusive of packaging, transportation and delivery costs, special discounts,
import duties and other taxes. In the event that the Agent fails to meet the
Year I Quota, the Principal may revoke the exclusive nature of this Agreement
and appoint other non-exclusive agents or distributors in the Territory. In the
event that the Agent fails to meet the Year 2 Quota, the Principal may, in
addition to its right to revoke the exclusive nature of this Agreement,
terminate this Agreement.
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2.6 RENEWAL
This Agreement may be renewed by Agent for additional renewal terms of two (2)
years each, provided that Agent shall have substantially complied with all of
the provisions of this Agreement, Agent shall have given to Principal at least
two (2) months' Notice prior to the expiry of the then current Term of its
intention to renew this Agreement, and the parties shall have agreed in writing
to the renewal Term annual Quotas.
ARTICLE 3
COMPENSATION
3.1 COMMISSION
(a) As consideration for its services, the Agent shall receive, on
orders placed by customers within the Territory, a sales
commission (the "Sales Commission") of 12% calculated on the
Net Invoice Value of all sales of the Products in the
Territory.
(b) As consideration for its after-sale services, the Agent shall
receive, on orders placed by customers within the Territory,
an additional 3% service commission or, in the event that a
customer enters into an extended warranty (2 years or greater)
an additional 8% service commission (each a "Service
Commission"), in each case calculated on the Net Invoice Value
of the Products in the Territory. For greater certainty, if a
customer purchases a Product with a two year warranty, the
Agent would receive a Sales Commission of 12 % and a Service
Commission of 8%, each such commission calculated on the Net
Invoice Value of the Product. Likewise, if a customer
purchases a Product without an extended warranty, the Agent
would receive a Sales Commission of 12% and a Service
Commission of 3%, in each case calculated on the Net Invoice
Value of the Product.
(c) The Principal shall pay the Agent's Fee to the Agent by bank
transfer, cheque or other acceptable means, which shall be
effected in compliance with any exchange control regulations
or other applicable laws of the Territory, within thirty days
after receipt by the Principal of any payment from a customer
upon which the Fee
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is to be calculated. Payment will be made to the Agent at the
address stated in this agreement as the Agent's principal
place of business, which the Agent represents in the country
from which it regularly and normally conducts its business.
(d) On orders under which a customer is required to make payments
over time to the Principal, the Principal shall pay the Fee
based upon such time payments, as and when such time payments
are received.
(e) The Fee shall not be due and payable on any sale of Products
for which full payment has not been received by the Principal.
(f) No commissions will be paid on the value of technical,
construction, installation or like services, nor on the value
of insurance, bonds, interest, ocean freight or other charges
which may be included in the Principal's invoice to a
customer.
(g) It is understood that if an order should be rescinded, revoked
or repudiated by a customer for reasons beyond the Principal's
control or by the Principal for breach of contract or by
either party for force majeure causes, or it becomes invalid
or inoperative due to any governmental regulation, the Agent
shall not be entitled to a commission with respect to such
order, except pro rata to the extent of any amounts the
Principal may have received and retained as payment for
Products delivered to a customer.
(h) It is further understood that no compensation, by way of
commission or otherwise shall be due the Agent in connection
with an order on which a commission would otherwise be
payable, if as to such an order:
(i) any applicable governmental law, rule or regulation
prohibits or makes improper the payment of any
commission, fee, or other payment to an Agent;
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(ii) any customer makes it a condition that no commission,
fee or payment be made to an Agent; or
(iii) any action has been taken by the Agent in violation
of its commitments set forth in Section 5.5 hereof.
3.2 EXPENSES
The Agent shall be solely responsible for all its expenses in its performance of
this Agreement, except as may otherwise be agreed with the Principal, in
writing.
3.3 ACCOUNTS AND RECORDS
(a) The Agent and Principal shall maintain adequate and separate
accounts and other records relating to the agency, which shall
remain at all times the property of the Principal.
(b) Upon request of either party, an annual audit of the accounts
shall be carried out by an independent accountant to be agreed
upon and jointly funded by the parties. The findings of the
audit shall be accepted by both parties as representing the
accrued rights and liabilities of each.
(c) Each party shall be entitled to access to the accounts and
records of the other as relate to the agency, upon reasonable
notice. No later than two years after termination of this
Agreement, the Agent shall deliver to the Principal, or
destroy if requested, all such records and retain no copies.
ARTICLE 4
ORDERS/WARRANTY
4.1 ORDERS
(a) Orders solicited or procured by the Agent shall be subject to
prices and terms and conditions of sale as established from
time to time by the Principal.
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(b) All orders procured by the Agent shall not be valid until
acknowledged and accepted in writing by the Principal.
(c) Upon receipt of an order, the Principal shall accept or reject
the order at its sole option. When an order is accepted, a
copy of the acceptance shall be forwarded to the Agent.
4.2 WARRANTY
Principal makes no claims, statements, warranties, assurances, guarantees or
representations whatsoever, whether express, implied, statutory, collateral or
otherwise concerning the Products other than that they shall meet Principal's
specifications, tolerances and quality standards as they may be in effect from
time to time. Any recommendation made by Principal concerning uses or
applications of Products are believed reliable but Principal makes no warranty,
assurance, guarantee or representation in respect thereof. Agent shall make no
warranties or guarantees with respect to the Products except as may be
authorized by Principal in writing. Agent agrees to comply at all times with all
applicable consumer product warranty legislation and take all actions that
Principal may from time to time request for the purpose of compliance with such
legislation.
4.3 LIMITATION ON LIABILITY
Principal's sole liability, and Agent's sole remedy and entitlement against
Principal, in respect of any of the Products shall be limited to an amount which
shall not exceed the purchase price of the particular Product with respect to
which a claim is made. In no event shall Principal be liable for any loss,
injury or damage, whether direct, indirect, collateral, special or
consequential, whether suffered by Agent, any party dealing with Agent or any
third party, whether in connection with the Products, or resulting from the
sale, use or application of the Products or otherwise, including without
limitation, personal injury, loss of profits or other economic loss.
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ARTICLE 5
OBLIGATIONS OF PRINCIPAL AND AGENT
5.1 PRINCIPAL'S OBLIGATIONS
During the Term of this Agreement, Principal shall provide Agent with such
reasonable assistance as Principal shall deem reasonably necessary to assist
Agent in effectively advertising and promoting the Products throughout the
Territory. Without limiting the generality of the foregoing, Principal shall:
(a) assist the Agent by furnishing the Agent with standard
descriptive literature and standard information such as
installation instructions, technical data and manuals as are
necessary to promote the sale of the Products, and including
trade advertisements and promotional literature, if requested
by the Agent. The Agent shall be responsible for the expense
of any translation, reproduction and printing necessary to
make the information suitable for use in the Territory;
(b) upon consultation with Agent, set prices for the Products in
the Territory;
(c) advise the Agent of all changes in pricing of the Products;
(d) advise the Agent of all improvements and changes regarding the
Products, and assist the Agent in communicating such
information to customers;
(e) be responsible for the delivery and installation of the
Products, including installation and upgrades of software,
semi-annual visits to customers in the Territory and on-site
support in the event of major mechanical breakdowns;
(f) provide technical support and consulting services at the
Principal's then current prices, when requested by the Agent,
in the procurement and support of maintenance contracts for
the Products in the Territory and in the performance of
maintenance and warranty services for Products in the
Territory;
(g) reasonably assist the Agent in the operation of the agency,
including following up all inquiries without delay, and
keeping Agent informed of all matters likely to affect the
sales of the Products;
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(h) provide Agent with the spare parts necessary for Agent to
fulfil its maintenance and warranty service obligations
hereunder, in reasonable time periods through the Term of this
Agreement and for one year following the termination of this
Agreement or until the Principal appoints a new agent,
whichever occurs first;
(i) warrant the good quality of the Products in accordance with
the warranties provided to its customers. The Principal shall
be under no obligation to the Agent to manufacture, sell or
supply, or to continue the manufacture, sale or supply of the
Products, nor shall any warranty of any nature as to any of
the Products run from the Principal to the Agent, except as
specifically provided in this agreement, and the Principal
shall be under no obligation to the Agent to continue,
discontinue or change any model or type of any of the
Products. The Agent shall not make any representation or
warranty to customers which shall differ from or exceed in any
way those made by the Principal in its published literature or
in its terms and conditions of sale.
5.2 RESERVATIONS OF PRINCIPAL
(a) Principal reserves the right to:
(i) solicit orders from and sell Products directly for
its own account to parties located in the Territory
who have formal agreements with the Principal to
develop fuel cell technology;
(ii) accept orders from customers outside the Territory to
their subsidiaries in the Territory; and
(iii) enter into similar arrangements with agents and
distributors in the Territory from time to time,
solely in order to effect the sales described in this
Subsection 5.2(a) hereof.
(b) Upon the exercise by Principal of the rights described in
Subsection 5.2(a) hereof, Principal agrees to pay Agent a
commission of 5% on the Net Invoice Value of all such sales
made by Principal in the Territory, provided that Agent
assisted in effecting such sales.
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5.3 AGENT'S OBLIGATIONS
In order to maintain the high reputation and goodwill associated with
Principal and the Products, Agent shall, except where otherwise agreed
to in writing by Principal:
(a) make every reasonable effort and use proper means to develop
as far as practicable the market potential for trade in the
Products in the Territory, including, but not limited to, the
presentation, promotion and marketing of the Products;
(b) use its best efforts to maintain good commercial relations
with customers and potential customers of the Products in the
Territory, and promote the interests of the Principal in the
Territory;
(c) promptly submit to the Principal all orders and inquiries
received and shall accept orders only as subject to
confirmation by the Principal and strictly in accordance with
current price lists and conditions of sale;
(d) provide and maintain facilities where it shall carry out the
activities of the agency in the Territory and perform, with
such due care and diligence of a reasonable agent, the
activities of the agency through its own staff;
(e) on request, report fully and promptly to the Principal on the
sales activities of competitors to the Principal, and advise
on sales and marketing strategies;
(f) maintain communications throughout the Term of this Agreement
with designated personnel of the Principal in order to
facilitate the promotion and sale of the Products in the
Territory;
(g) send to the Principal not later than thirty days after the end
of each calendar quarter a full report relating to the Agent's
activities pursuant to this Agreement during that quarter.
Such report shall include, but shall not be limited to, the
information set out on Schedule "B";
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(h) except for certain service obligations of Principal described
hereunder, be responsible for routine service and maintenance
of the Products at customers' facilities in the Territory;
(i) aid and support Principal during the installation of Products
at customers' facilities in the Territory;
(j) not enter into any agreement, contract or arrangement with any
government or governmental representative or with any person,
firm or corporation, or other enterprise imposing any legal
obligation or liability of any kind whatsoever on the
Principal, without obtaining the prior written consent of the
Principal in each instance;
(k) establish and maintain a competent sales staff to call upon
prospective purchasers of Products in the Territory as is
necessary for the performance of its obligations under this
Agreement;
(l) at no time engage in any activities which may adversely affect
the reputation and goodwill of the Principal or the Products.
Without limiting the foregoing, Agent shall not engage in any
illegal, deceptive, unfair or unethical trade practices with
respect to the Products nor make any false, misleading or
disparaging representations about Principal or the Product;
(m) comply with all reasonable mandatory procedures and
specifications (if any) from time to time prescribed by
Principal relating to the sale and distribution of the
Products;
(n) comply with all laws, regulations, by-laws, orders, rulings
and ordinances, including without limitation consumer
protection and trade practices laws, and obtain all necessary
permits and licences which may have application to the
advertising, sale and distribution of the Products;
(o) in consultation with Principal, design, develop and implement
annual marketing plan in the Territory, which shall include
the development and implementation of a web-site, the
preparation of Korean-language brochures, catalogues,
literature,
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and advertisements, and the organization and attendance at
trade shows, exhibitions and the like; and
(p) ensure that any registration or notification required by the
laws of the Territory shall have been carried out. Agent shall
comply with all laws and regulations as may apply with the
Territory, as applicable to this agreement and all
transactions and activities contemplated or to be performed
hereunder, and shall procure and maintain all approvals,
licences, permissions and permits necessary to the performance
of its business and conduct its business in a manner so as to
not bring discredit upon the reputation of the Products or
Principal. Agent shall keep Principal informed of any laws or
regulations of the Territory which may affect the promotion,
sales, services or maintenance of the Products in order that
Principal will not breach any such laws or regulations through
lack of awareness thereof.
5.4 PROHIBITIONS OF AGENT
Agent shall not:
(a) apply any attachments or accessories to the Products or modify
or alter the Products without the prior written approval of
Principal;
(b) advertise the Products outside the Territory except where
advertisements are included in international publications;
(c) seek customers, establish any branch or maintain any office or
depot in relation to the Products anywhere outside the
Territory; and
(d) during the Term of this Agreement, except with the prior
written consent of Principal, sell, distribute or advertise,
either directly or indirectly, any products in the Territory
which are like or similar to, or which, either alone or in
conjunction with some other product, perform or are designed
to perform the same or similar function to, or which might
otherwise compete or interfere with, the Products.
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5.5 REPRESENTATIONS OF AGENT
The Agent represents and warrants that:
(a) Any Fees paid to the Agent shall be for actual services
rendered and no part of any fees and expenses paid to the
Agent by the Principal will be paid to or accrue for the
benefit of, directly or indirectly, anyone who is an official,
agent or employee of, or in any manner connected with, any
government or governmental entity in the Territory or any
political subdivision thereof, or who is an officer, agent or
employee of a political party or who is a candidate for
political office, or who is a director, officer, employee or
shareholder of any private customer or prospective customer,
or when such payment or accrual would be illegal under the
applicable laws of Canada or the Territory; and
(b) Neither this Agreement, the relationship created by it, nor
the performance of it is contrary to the current laws, rules
or regulations of the Territory.
ARTICLE 6
TRADEMARKS / INTELLECTUAL PROPERTY
6.1 USE OF PRINCIPAL TRADE-MARKS
Agent agrees and acknowledges that Principal is the exclusive owner of Principal
Trade-marks and that the rights granted herein to Agent to use Principal
Trade-marks apply only to their use in connection with the advertising,
marketing and sale of the Products to Agent's current and potential customers
within the Territory in accordance with this Agreement and not otherwise.
Principal grants Agent the right to affix its name, address and telephone number
to brochures, sales literature, graphics and data sheets concerning the Products
provided that Agent must in all cases state that it is an authorized,
independent Agent of the Products. Agent shall not:
(a) directly or indirectly attempt to dilute the value of the
goodwill attached to any of Principal Trade-marks, nor
counsel, procure or assist anyone to do any of the foregoing;
or
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(b) dispute or contest for any reason whatsoever, directly or
indirectly, during or after the term of this Agreement, the
validity, ownership or enforceability of any of Principal
Trade-marks.
6.2 INFRINGEMENT
Agent agrees to notify Principal promptly of any attempt by any person other
than Principal or a licensed Agent of Principal to use Principal Trade-marks or
any variation or imitation thereof and to notify Principal immediately of any
action involving Principal Trade-marks that is threatened or instituted by any
person against Agent and to allow Principal to undertake the defence of any such
action. Should any action involving Principal Trade-marks be threatened or
instituted by any person against Agent, Principal agrees to defend Agent and to
indemnify and hold it harmless from all fines, suits, proceedings, losses,
claims, demands or actions of any nature or kind whatsoever directly or
indirectly arising out of or associated or connected with the use of Principal
Trade-marks and against any and all damages, costs, expenses and fees
(including, without limitation, reasonable legal expenses) incurred by or on
behalf of Agent in the investigation or defence of any and all such suits,
proceedings, claims, demands or actions; provided, however, that Principal shall
have full control of such action including the right to settle such suits,
proceedings, claims, demands or actions on Agent's behalf. Principal shall have
the sole right, but no obligation, to commence proceedings to restrain any
unauthorized uses of Principal Trade-marks or any variations or imitations
thereof and to receive the benefits of any such suits, proceedings, claims,
demands or actions. Agent shall fully co-operate with Principal, at Principal's
expense, in providing any support that Principal might reasonably request in
respect of the defence or prosecution of any such suits, proceedings, claims,
demands or actions.
6.3 INTELLECTUAL PROPERTY
Agent acknowledges that all intellectual property relating to the Products is
owned by or licensed to Principal. Agent agrees that it shall not violate or
infringe such intellectual property rights nor shall it, nor any of its
affiliates, attempt to reverse engineer the Products or manufacture, use, sell,
distribute or advertise products which have been derived from the reverse
engineering of the Products during or after the Term of the Agreement.
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ARTICLE 7
TERMINATION
7.1 TERMINATION
(a) Either party may terminate this Agreement without notice or
other act if,
(i) either party is in default in any material respect in
the performance of any of its obligations under this
Agreement or otherwise commits any material breach of
this Agreement, and such default continues after
fifteen days' Notice from the non-defaulting party to
the defaulting party stating the particulars of such
default;
(ii) a defaulting party has received from the
non-defaulting party during any consecutive twelve
(12) month period two (2) or more Notices relating to
a default under this Agreement (whether such Notices
relate to the same or different types of default and
whether or not such defaults have been remedied by
defaulting party).
(iii) bankruptcy or insolvency proceedings are instituted
by or against the other party, or the other party is
adjudicated a bankrupt, becomes insolvent, makes an
assignment for the benefit of creditors or proposes
or makes any arrangements for the liquidation of its
debts or a receiver or receiver and manager is
appointed with respect to all or any part of the
assets of the other party;
(iv) the parties are unable to agree on an annual Quota
and the parties are unable to agree after thirty
days' written notice from the Principal to the Agent
stating the need to agree on an annual Quota;
(v) any sovereign entities or political subdivisions in
the Territory enact legislation relating to the
relationship created by this Agreement which grants
rights to the Agent which are not granted by this
Agreement. (This
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Agreement shall terminate automatically one day prior
to the date such legislation becomes effective);
(vi) the Agent directly or indirectly offers, pays,
promises, gives or authorizes payment of any money or
anything of value to any government or public
official for the purpose of influencing any official
act or decision of such official in the course of
carrying out this Agreement; or
(vii) there is any frustration of this Agreement by an
occurrence of force majeure of a lasting nature.
(b) The Principal may terminate this Agreement without notice or
other act if,
(i) the whole or substantially the whole of the assets of
the Agent are sold or conveyed;
(ii) the Agent assigns or purports to assign this
Agreement without the prior written consent of the
Principal;
(iii) the Agent attempts to change the control and/or
management of the Agent's organization, which change
shall be unacceptable to the Principal, in the
Principal's sole discretion;
(iv) the Agent ceases through no fault of the Principal to
make the Products available to customers or
prospective customers for more than sixty consecutive
days;
(v) the Agent states in writing that it intends to cease
marketing the Products.
(c) This Agreement may be terminated by either party without cause
upon 365 days' Notice from one party to the other.
(d) Upon termination of this Agreement for any reason, the
following provisions shall apply:
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(i) all rights granted to the Agent under or pursuant to
this Agreement shall cease, and where appropriate
revert to the Principal;
(ii) the Agent shall immediately cease acting on behalf of
the Principal and shall cease its activities
concerning the Products; the Agent shall also
promptly return all sales literature, sales
brochures, samples and other materials or facilities
furnished by the Principal for the use of the Agent
under this Agreement;
(iii) immediately cease to use, directly or indirectly, in
advertising or in any other manner whatsoever the
Principal Trade-marks and remove such trade-marks
from or deliver up to Principal or its duly
authorized representatives all materials including
signs and advertising materials in its possession,
custody or control upon which the Principal
Trade-marks appear (except for documents not for
public display or reasonably required for archival
purposes); and
(iv) the provisions of this Agreement which are expressed
to survive this agreement or to apply notwithstanding
termination of this Agreement shall be observed by
the Agent.
(e) Anything in this Agreement to the contrary notwithstanding,
termination of the Agent's appointment as an Agent for the
Products shall in no way affect any outstanding obligations
for any payments due and owing from the Principal to the Agent
(whether then due or to become due to the Agent under this
Agreement or otherwise) or any other obligation of the parties
pursuant to this Agreement or otherwise, all of which
obligations, if any, existing at the time of any such
termination, the parties agree to fulfil and perform.
(f) Upon termination of this Agreement, neither party shall be
liable to the other party, either for Fees, expenses, other
compensation or damages of any kind or character whatsoever,
whether on account of the loss by the Principal or the Agent
of present or prospective profits or fees on sales or
anticipated sales, or
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expenditures, investments or commitments made in connection
therewith, or in connection with the establishment,
development or maintenance of the business of any party, or on
account of any other cause or thing whatsoever, provided,
however, that such termination shall not prejudice or
otherwise affect the rights or liabilities of any party with
respect to:
(i) all Agent orders accepted by Principal prior to and
subsequent to the termination or expiration of this
Agreement, except that any such rights of the Agent
to its Fee for Products sold shall apply only to sums
received by the Principal for a period of twelve
months after the date of any termination. For greater
certainty, Agent orders that are not accepted by
Principal prior to or subsequent to the termination
or expiration of this Agreement shall be deemed
cancelled and Principal shall have no liability to
Agent or to any other party by virtue of the
termination or expiration of the Agreement including,
but not limited to, any claim for loss of profits or
prospective profits from anticipated sales of the
Products, or
(ii) any indebtedness owing by either party to the other
party at the time of termination.
7.2 OTHER RELIEF
Any termination under Article 7 hereof shall be without prejudice to any other
rights (including any right of indemnity), remedy or relief vested in or to
which either party may otherwise be entitled against the other. Any refusal to
renew this Agreement shall not give rise to any liability for indemnity or other
compensation to Agent and Agent expressly waives any right to indemnity or
compensation if Principal terminates this Agreement as provided herein or
exercises its right not to renew this Agreement. The foregoing remedy shall not
exclude any other remedies which either party may have at law or in equity by
reason of default, breach or nonobservance by the other party of any provision
hereof.
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7.3 PERIODS OF NOTICE
Each party acknowledges that the periods of notice (if any) provided for
termination of this Agreement are adequate under the circumstances to permit
each party to take all actions required to adjust its business operations in
anticipation of the termination of this Agreement.
ARTICLE 8
RELATIONSHIP AND INDEMNIFICATION
8.1 INDEPENDENT PARTIES
(a) The relationship between the Principal and Agent is intended
to be and shall be that of Principal and independent
contractor. The parties acknowledge and agree that the Agent
is not an employee, partner or joint venturer of the
Principal. The Agent shall not act or attempt to act, or
represent itself, directly or by implication, as an employee,
partner or joint venturer of the Principal. The Agent shall in
the course of all transactions and in all correspondence and
other documents emphasize its role as selling agent on behalf
of the Principal. Neither party shall be bound in any manner
whatsoever by any agreements, warranties or representations
made by the other party to any other person nor with respect
to any other action of the other party.
(b) The relationship created by this Agreement does not constitute
the granting of a franchise to the Agent by the Principal and
no federal or provincial franchise statute, law, regulation or
rule is intended to or has been applied by the parties, nor
shall any such franchise, statute, law, regulation or rule be
deemed or construed to apply to the formation, operation,
administration or termination of this Agreement.
8.2 NON-LIABILITY
Principal shall not be obligated or liable for any injury or death of any person
or damage to any property caused by or relating to Agent's actions, failure to
act, negligence or wilful conduct, nor for any liability of Agent and Agent
undertakes to hold appropriate and adequate insurance to cover its liability.
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8.3 AGENT INDEMNITY
Agent hereby indemnifies and undertakes to defend Principal and its
shareholders, directors, officers and employees and hold them harmless from all
fines, suits, proceedings, losses, claims, demands or actions of any nature or
kind whatsoever, directly or indirectly, arising out of or in any manner
whatsoever associated or connected with Agent's performance, purported
performance or non-performance of its rights and obligations under this
Agreement and against any and all damages, costs, expenses and fees (including
without limitation reasonable legal expenses) incurred by or on behalf of any of
the foregoing in the investigation or defence of any and all such suits,
proceedings, claims, demands or actions.
ARTICLE 9
GENERAL
9.1 CONFIDENTIALITY OF AGENT
Agent acknowledges that as a consequence of being a Agent of the Products,
certain confidential information may be disclosed to it by Principal, including
without limitation technical information and business information (collectively
the "Principal Confidential Information"). Agent acknowledges that such
Principal Confidential Information shall be and remain solely the property of
Principal and agrees and covenants that during the term of this Agreement and at
all times after its termination:
(a) such Principal Confidential Information shall be kept
confidential and secret; and
(b) neither Agent nor any individuals associated with Agent in any
capacity, whether as directors, officers, agents, employees or
otherwise, shall use such Principal Confidential Information
for any purpose or disclose such Principal Confidential
Information to any third person, except to the extent such
Principal Confidential Information must necessarily be used
for the performance of this Agreement or is disclosed with the
prior written consent of Principal.
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9.2 CONFIDENTIALITY OF PRINCIPAL
Principal acknowledges that as a consequence of being a supplier of the Products
to Agent, certain confidential information may be disclosed to it by Agent,
including without limitation technical information and business information
(collectively the "Agent Confidential Information"). Principal acknowledges that
such Agent Confidential Information shall be and remain solely the property of
Agent and agrees and covenants that during the Term of this Agreement and at all
times after its termination:
(a) such Agent Confidential Information shall be kept confidential
and secret; and
(b) neither Principal nor any individuals associated with
Principal in any capacity, whether as directors, officers,
agents, employees or otherwise, shall use such Agent
Confidential Information for any purpose or disclose such
Agent Confidential Information to any third person, except to
the extent such Agent Confidential Information must
necessarily be used for the performance of this Agreement or
is disclosed with the prior written consent of Agent.
9.3 DISPUTE RESOLUTION
All disputes, controversy or claims arising out of or in connection with or in
relation to the contract, including any question regarding its existence,
validity or termination, shall be submitted to and be subject to the
jurisdiction of the courts of the Province of Ontario (including the Supreme
Court of Canada) which shall have exclusive jurisdiction in the event of any
dispute under this agreement. The parties irrevocably submit to the jurisdiction
of such courts to finally adjudicate or determine any suit, action or
proceedings arising out of or in connection with this agreement. Alternatively,
the parties may agree to submit the matter to arbitration in accordance with the
Rules of Conciliation and Arbitration of the International Chamber of Commerce
by one or more arbitrators appointed in accordance with the said Rules.
9.4 FORCE MAJEURE
Neither party shall be responsible to the other for non-performance or delay in
performance (other than any payment of money) occasioned by any causes beyond
its control including without limitation acts or omissions of the other party,
acts of civil or military authority, strikes,
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lock-outs, embargoes, insurrections or Acts of God. If any such delay occurs,
any applicable time period shall be automatically extended for a period equal to
the time lost provided that the party affected makes reasonable efforts to
promptly correct the reason for such delay and gives to the other party prompt
Notice of any such delay. Such Notice shall include an estimate of the time that
will be taken to correct the reason for such delay.
9.5 ASSIGNMENT
Neither this Agreement nor any of the rights or duties of Agent shall be
assigned, transferred or conveyed by Agent, by operation of law or otherwise,
nor shall this Agreement or any rights of Agent enure to the benefit of any
trustee in bankruptcy, receiver, creditor, trustee or successor of Agent's
business or of its property, whether by operation of law or otherwise, or to a
purchaser of all of the shares of Agent or to a purchaser of the entire business
or substantially all of the assets of Agent, without the prior written consent
of Principal. Agent acknowledges that Principal may assign this Agreement to an
affiliate or subsidiary.
9.6 SUCCESSORS AND ASSIGNS
This Agreement shall enure to the benefit of and be binding upon Agent and
Principal and their respective successors and permitted assigns.
9.7 CONFORMITY WITH LOCAL LAWS
(a) The rights and obligations of the parties under this Agreement
shall be subject to all applicable laws, orders, regulations,
directions, restrictions and limitations of the governments
having jurisdiction of the parties. In the event, however,
that any law, order, regulation, direction, restriction or
limitation, expropriation, seizure or interpretation thereof
shall in the judgment of either party substantially alter the
relationship between the parties under this Agreement, or the
advantages derived from such relationship, either party may
request the other party to modify this Agreement, and if,
within fifteen days subsequent to making such request, the
parties are unable to agree upon a mutually satisfactory
modification of this Agreement, then the adversely affected
party may terminate this Agreement on
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fifteen days' notice given to the other party, not later than
thirty days following the end of such thirty-day period.
(b) Any provision or provisions of this Agreement which in any way
contravene the law of any state or country in which this
Agreement is effective, shall in such state or country, to the
extent of such contravention of law, be deemed severable and
shall not affect any other provision or provisions of this
Agreement.
(c) The parties shall each at its own expense in its own
countries, take such steps as may be required to satisfy the
laws and requirements of the respective countries with respect
to declaring, recording, or otherwise rendering this Agreement
valid.
9.8 LANGUAGE
(a) Upon execution, this Agreement may be translated into the
language of the Territory provided, however, that in the event
of any diversion between the English version and any other
version, the English version shall prevail.
(b) When a comparison of the authentic text of a provision of the
United Nations Convention on Contracts for the International
Sale of Goods reveals a difference of meaning that cannot be
reconciled by looking to the object and purpose of the
Convention provision, the English language version shall
prevail.
(c) The rights and obligations of the parties under this Agreement
shall be governed by the authentic English-language text of
the United Nations Convention on Contracts for the
International Sale of Goods to the exclusion of the other
authentic language versions.
9.9 CURRENCY
Unless otherwise specifically provided in this Agreement, all references to
dollar amounts or other money amount are expressed in terms of lawful money of
the United States of America.
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9.10 SURVIVAL
All obligations of Agent and Principal including obligations of indemnity which
expressly or by their nature survive the termination or assignment of this
Agreement shall continue in full force and effect subsequent to and
notwithstanding such termination or assignment and until they are satisfied or
by their nature expire.
9.11 NOTICE
All written notices, consents and approvals (herein referred to as a "Notice")
permitted or required to be given hereunder shall be deemed to be sufficiently
and duly given if written and delivered personally or if transmitted by
facsimile transmission or other form of recorded communication tested prior to
transmission, if to Principal addressed as follows:
HYDROGENICS CORPORATION
0000 XxXxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx
XXXXXX, X0X 0X0
Attention: Xxxx Xxxxxx, Vice President, Sales and Marketing
Fax: (000) 000-0000
and if to Agent addressed as follows:
HANKOOK BEP CO. LTD.
Kwanmyung Xxxx.
Xxxxx-Xxxx 000,
Xxxxxxx-Xx,
Xxxxx, Xxxxx
Attention: Hyung Xxxx Xxx, President
Any Notice so given or made shall be deemed to have been given or made and
received on the date of delivery or on the day of transmission by facsimile
transmission or other form of recorded communication, as the case may be. Any
party from time to time by Notice may change its address for the purpose of this
Agreement.
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9.12 CUMULATIVE RIGHTS
The rights of Agent and Principal hereunder are cumulative and no exercise or
enforcement by Agent or Principal of any right or remedy hereunder shall
preclude the exercise or enforcement by Agent or Principal of any other right or
remedy hereunder of which Agent or Principal is otherwise entitled by law to
enforce.
9.13 FURTHER ASSURANCES
The parties agree to do or cause to be done all acts or things necessary to
implement and carry into effect this Agreement to its full extent.
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IN WITNESS OF WHICH the parties have duly executed this Agreement.
HYDROGENICS CORPORATION
By: /s/ XXXXXX XXXXXX
-----------------------------
Name: Xxxxxx Xxxxxx
Title: President and CEO
HANKOOK BEP CO. LTD.
By: /s/ X. X. XXX
-----------------------------
Name: X X Xxx
Title: President
