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EXHIBIT 10.9
THIS AGREEMENT is made on May 2, 2000
BETWEEN :
1. RUMPUS CORPORATION, a company incorporated and registered in the
United States of America having its registered office at 00 X. 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, U.S.A., Facsimile Number:
000-000-0000 (the "Principal") and
2. SUPPLY CHAIN SERVICES LIMITED, a company incorporated and registered
in the Hong Kong Special Administrative Region having its registered
office at 31 New Xxxxx House, 10 ice House Street, Central, Hong Kong,
Facsimile Number : 2368-6923 (the "Agent").
WHEREAS the Principal wishes to appoint the Agent as its sole and exclusive
agent to undertake supply chain services as provided in this Agreement including
but not limited to outsourcing and purchase of goods and to provide such
services incidental and ancillary thereto as may be necessary upon the terms and
subject to the conditions hereinafter appearing.
NOW IT IS AGREED as follows:
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1. INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:
"Agreement" means this agreement as the same may from time
to time be amended, modified or varied in
accordance with Clause 10 and includes any
document which amends, waives, is supplemental
to, novates or is entered into, made or given
pursuant to or in accordance with any of the
terms hereof;
"Business Day" means a day (other than a Saturday)on which
banks are open for business in both the Hong
Kong Special Administrative Region;
"Commencement Date" means May 1, 2000;
"Goods" means any such goods which the Agent will
outsource and purchase on behalf of the
Principal;
"Invoice Value" means the sums invoiced by the sellers or
suppliers of the Goods to the Principal (or the
Agent as agent for the Principal) in respect of
any of the Goods purchased by the Agent on
behalf of the Principal, less any value added
tax (or government taxes, duties or levies) and
any amounts for transport or insurance and all
out-of-pocket expenses included in the invoice;
"Term" means the fixed period of one (1)year beginning
on the Commencement Date and expiring on May
31, 2001 unless earlier terminated as provided
by this Agreement;
"Territories" means the countries listed in Schedule 2;
"US$" means the lawful currency for the time being of
the United States of America;
"Year of this means the period of twelve (12) months from the
Agreement" Commencement Date and each subsequent
consecutive period of twelve (12) months during
the continuance in force of this Agreement.
1.2 In this Agreement unless the context otherwise requires:
(a) references to Clause(s) and SCHEDULE(s) are references to
clause(s) of and schedule(s) to this Agreement;
(b) the words "herein", "hereof" and words of similar import shall be
construed as references to this Agreement as a whole and not to
the particular provision in which the relevant reference appears;
(c) references to (or to any specific provision of) this Agreement or
any other document shall be construed as references to this
Agreement, that provision or that document as amended, modified
or supplemented from time to time;
(d) words herein importing the singular shall include the plural and
vice versa and words importing any gender shall include all
genders and words importing person shall include any individual,
company, corporation, firm, partnership, joint venture,
association or trust (in each case, whether or not having a
separate legal personality).
1.3 References in this Agreement to any ordinance, enactment, rule, law,
directive
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or regulation include such ordinance, enactment, rule, law, directive
or regulation as modified, consolidated, extended or re-enacted and
include subsidiary legislation made thereunder.
1.4 In this Agreement clause headings and the index are inserted for
reference only and shall not affect construction or interpretation of
this Agreement.
2. APPOINTMENT
2.1 The Principal hereby appoints the Agent as its sole and exclusive
agent to undertake outsourcing and purchase of Goods in the
Territories on behalf of the Principal and to provide such services
incidental and ancillary thereto as may be necessary and also similar
services in relation to the Goods for the Term in accordance with the
provisions of this Agreement.
2.2 The Agent is hereby authorized to ship the Goods to such destinations
as it may be notified by the Principal from time to time and to
arrange suitable insurance cover for the Goods in transit.
3. PRINCIPAL'S OBLIGATIONS
The Principal agrees with the Agent during the continuance in force of this
Agreement:
(a) to reimburse the Agent for all out-of-pocket expenses including but
not limited to logistics fees, charges for laboratory testing and
customs clearance, insurance premium, courier charges and the like
expenses reasonably and properly incurred by the Agent in or about the
performance of its duties hereunder Provided that the Agent shall
provide satisfactory evidence of the expenditure in respect of which
the Agent claims reimbursement and all expenses in excess of US$1,000
to be approved in writing by the Principal;
(b) to make prompt payment for all Goods purchased by the Agent on behalf
of the Principal by irrevocable transferable letter of credit
available by the Agent's draft drawn at sight opened by the Principal
in favour of the Agent and confirmed by a first class banking
institution of international repute acceptable to the Agent or by
alternative payment terms as mutually agreed between the Agent, the
Principal and the seller of the Goods;
(c) to comply with any legislation or regulations governing the
importation of the Goods purchased by the Agent on behalf of the
Principal into the country of destination and to pay any and all
duties thereon.
4. AGENT'S OBLIGATIONS
The Agent agrees with the Principal throughout the Term :
(a) promptly to execute orders for the purchase of the Goods communicated
to the Agent from time to time by the Principal and to effect all
purchases at such price as may be agreed or approved in advance by the
Principal;
(b) in placing such orders to have regard to any export o r currency
restrictions of the Territories within which the purchases are to be
made and to obtain or provide for the obtaining of any necessary
licences or permissions so as to prevent any frustration of or delay
in delivery of the Goods;
(c) to act as general consultants to the Principal on all matters
concerning the Agent's service activities in the Territories and to
keep the Principal informed of :
(i) the sources of supply of the Goods;
(ii) the general level of market prices of the Goods ruling from time
to time in the Territories;
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(iii) the general conditions appearing likely to affect the future
price or conditions of the Goods or to interfere with the prompt
supply of them to the Principal;
(d) in making purchases:
(i) to inform the seller of the purposes for which the Goods are
intended to be used and of the fact that the Agent is acting as
agent for and on behalf of the Principal;
(ii) to obtain such warranties as to the nature quality and
suitability of the Goods purchased as the Principal may require;
(e) to keep separate proper and accurate accounts and records of the
purchases of the Goods made on behalf of the Principal including full
details of the persons from whom they are purchased the quantity the
total price paid and whenever possible the price per unit quantity and
also the expenses incurred by the Agent in making those purchases and
arranging delivery as required by the Principal and of mail courier
and telecommunications charges incurred in relation to such purchases
and to permit the Principal by its duly appointed agents to inspect
those accounts and records at such times as it may require;
(f) to arrange for payment of the Goods purchased on behalf of the
Principal by such means and in such currency as the Agent may be
notified by the Principal from time to time;
(g) from time to time to keep the Principal fully informed of the Agent's
service activities in the Territories in respect of the Goods and to
provide the Principal with periodical reports of such activities;
(h) to inform the sellers of the Goods promptly of all complaint or
after-sales enquiry concerning the Goods received by the Principal and
any matters likely to be relevant in relation to the manufacture,
sale, use or development of the Goods.
5. REMUNERATION
5.1 In consideration of the service undertaken by the Agent hereunder the
Principal shall subject as provided in Clause 5.2 pay to the Agent
during the continuance in force of this Agreement:
a commission equal to 6% of the Invoice Value in any Year of this
Agreement. A monthly retainer of US$3,000 should be paid to the
Agent, such retainer shall be deducted if the commission payable is
higher than the retainer at the end of each quarter. The retainer
shall not be deducted if the commission is lower than the retainer.
5.2 The Agent shall within seven (7) days after each shipment/delivery of
the Goods purchased by the Agent on behalf of the Principal send to
the Principal a statement showing the Invoice Value of each
description of such Goods and the commission thereon to which the
Agent is entitled pursuant to Clause 5.1 and any taxes, duties or
levies and other charges and expenses paid or incurred by the Agent on
behalf of the Principal in respect of the export of such Goods from
the Territories.
5.3 Within seven (7) days upon receipt from the Agent of the statement
referred to in Claus the Principal shall pay the commission due to the
Agent hereunder an reimburse the Agent for such taxes, duties or
levies and other charges and expenses paid and incurred by the Agent
on behalf of the Principal in respect of the export of the Goods from
the Territories, in each case without any deduction. If the Principal
is required to make such deduction, it shall do all things in its
power which may be reasonably necessary to enable or assist the Agent
to claim exemption therefrom under any double tax or similar agreement
from time to time in force and shall from time to time give to the
Agent proper evidence as to the deduction and payment over of the tax
or sums withheld.
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6. TERMINATION
6.1 Subject to Clause 6.2, this Agreement shall not be terminated during
the Term and shall continue thereafter in full force and effect unless
and until either party shall have given three (3) months written
notice of termination to the other party such notice not to be given
prior to the expiration of the Term.
6.2 This Agreement shall be terminated forthwith without prior notice if:
(a) either party fails duly to perform any of its obligations or to
observe any of the terms and conditions imposed on it by this
Agreement and such failure is not capable of remedy or, if
remediable, has not been remedied within thirty (30) days after
notice by the other party requiring its remedy; or
(b) either party becomes or is declared insolvent or bankrupt, is
unable to pay its debts as they fall due, stops, suspends or
threatens to stop or suspend payment of all or a material part of
its debts or begins negotiations or takes any proceeding or other
step with a view to readjustment, rescheduling or deferral of its
indebtedness (or any part of its indebtedness which it will or
might otherwise be unable to pay when due) or proposes or makes a
general assignment or any arrangement or composition with or for
the benefit of its creditors or a moratorium is agreed or
declared in respect of or affecting all or any material part of
its indebtedness; or
(c) a petition is presented or a proceeding is commenced, a
resolution is passed, an order is made or any action is taken by
any person for the dissolution, liquidation, winding-up or
bankruptcy of either party, except for the purpose of and
followed by a reconstruction, amalgamation or reorganization on
terms previously approved by the other party or for the
appointment of a liquidator, receiver, administrator, trustee or
similar officer of all or a material part of its business or
assets or if any event analogous thereto occurs or if either
party otherwise becomes insolvent, liquidated, wound-up or
bankrupt under applicable law; or
(d) either party ceases to exist or ceases or threatens to cease to
carry on its business or any part thereof; or
(e) it is or will become unlawful for either party to perform or
comply with any one or more of its obligations under this
Agreement or any such obligation is not or ceases to be
enforceable.
6.3 The expiration or determination of this Agreement howsoever arising
shall not affect such of the provisions hereof as are expressed to
operate or have effect thereafter and shall be without prejudice to
any right of action already accrued to either party in respect of any
breach of this Agreement by the other party.
7. CONFIDENTIALITY
The Agent agrees and undertakes with the Principal that it will not at any
time hereafter use or divulge or communicate to any person other than to
officers and senior employees of the Principal whose province it is to know the
same any confidential information concerning the business, accounts, finance or
contractual arrangements or other dealings, transactions or affairs of the
Principal which may come to its knowledge and it shall use its best endeavours
to prevent the publication or disclosure of any confidential information
concerning such matters.
8. NO ASSIGNMENT
Neither of the parties hereto shall assign or otherwise transfer any of its
rights or obligations under this Agreement to any third party without the prior
written consent of the other party hereto.
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9. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the parties hereto
with respect to the subject matter of this Agreement and supersedes any other
commitments agreements promises or understandings written or verbal that the
parties hereto hereinbefore may have had.
10. AMENDMENT
No provision hereof may be amended, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the amendment, waiver, discharge or termination is sought. No
breach of or default under any of the provisions of this Agreement may be waived
or discharged except by an instrument in writing signed by or on behalf of the
party against whom enforcement of such waiver or discharge is sought.
11. COMMUNICATIONS
Any notice report request demand consent approval and other communication
(collectively the "Communication") required to be given under this Agreement
shall be in English and shall be given by facsimile or by sending the same
through the post via prepaid envelope (air mail in the case of an overseas
address) or by courier addressed to the party concerned at its address set out
on the first page of this Agreement or at such other address or place as such
party may designate to the other party in writing for the purpose of this clause
and any Communication so given shall be deemed to have been served on the second
day after the ay on which it was posted in the case of inland mail or despatched
in the case of local courier, on the day on which it was despatched in the case
of local facsimile, on the next day after the day on which it was despatched
(reckoned at the place of despatch) in the case of international facsimile, on
the seventh (7th) day after the day on which it was posted in the case of air
mail and on the fourth (4th) day after the day on which it was despatched in the
case of international courier. In proving service by mail it will be sufficient
to prove that the envelope containing the Communication was duly stamped
addressed and posted as aforesaid.
12. PARTIAL INVALIDITY
The illegality invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality
validity or enforceability under the laws of any other jurisdiction nor the
legality validity or enforceability of any other provision of this Agreement
which are capable of severance and which shall continue unaffected.
13. NO WAIVER
Time shall be of the essence of this Agreement but no failure or delay on
the part of either party hereto to require performance by the other party of any
provision of this Agreement will operate as a waiver thereof. Any waiver by
either party of any breach of any provision of this Agreement shall not be
construed as a waiver of any continuing o r succeeding breach of such provision
a waiver of the provision itself or a waiver of any right under this Agreement.
Any waiver or consent shall be effective only in the instance and for the
purpose for which it is given.
14. COSTS
Save as otherwise provided in this Agreement, all expenses incurred by or
on behalf of the parties hereto, including all fees of agents, representatives,
lawyers and accountants engaged by either of them in connection with the
negotiation, preparation or execution of this Agreement, shall be born solely by
the party who incurred the liability.
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15. GOVERNING LAW AND JURISDICTION
15.1 This Agreement shall be governed by and construed in accordance with
the laws of New York. The parties hereto hereby submit to the
non-exclusive jurisdiction of the New York State courts.
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SCHEDULE I
TERRITORIES
People's Republic of China
Taiwan
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SIGNED by )
XXXXXX XXXXXXXXXX, VP PRODUCTION )
for and on behalf of the )
Principal Rumpus Corporation )
in the presence of : ) /s/ Xxxxxx Xxxxxxxxxx
) ---------------------------
Witness: /s/ Xxxx Xxxx
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Address: 000 X. 00xx Xxxxxx, XXX XX 00000
Occupation: Producer
SIGNED by )
Xxxxxxx Xxx, General Manager )
for and on behalf of the Agent )
Supply Chain Services Limited )
in the presence of : ) /s/ Xxxxxxx Xxx
) ---------------------------
Witness: /s/ Xxxxx Xxx Ping
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Address: 0/X, Xxxxxxxxx Textile Centre, 00 Xxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxx
occupation: Merchandiser
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