AGENCY AGREEMENT

[Captain Kirk]

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AGENCY AGREEMENT

THIS AGENCY AGREEMENT (hereinafter referred to as “Agreement”) is made and entered into this December 15, 1997 by and between ABC Co., Ltd., a corporation duly organized and existing under the laws of the Republic of Korea and having its principal office at C.P.O Box No. 112-1, Jongro-ku, Seoul, Korea (hereinafter referred to as “ABC”) and XYZ Co., Ltd., a corporation duly organized and existing under the laws of the State of North California, the United States of America and having its principal office at C.P.O Box No. 211-1, Sanford, NC, 777-1234 U. S. A (hereinafter referred to as “ XYZ”),

WITNESSETH ;

WHEREAS, ABC wishes to sell the Products in the Territory (as hereinafter defined) and for such a purpose enter into an agreement with XYZ,

WHEREAS, XYZ wishes to sell the Products in the Territory and render its services to ABC,

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows ;

Article 1. Definitions

In this Agreement, except where the context requires otherwise, the following terms and expressions shall have the meanings respectively defined as follows ;

1.1 “Products” means “Network Protocol”

1.2 “ Territory” means “United States of America”

Article 2. Appointment and Acceptance

2.1 Subject to the terms of this Agreement, ABC hereby appoints XYZ as its exclusive agent for the sale of the Products within the Territory and XYZ hereby accepts ABC’s appointment.

2.2 ABC shall not, itself directly or through third parties, sell, distribute or market the Products to the customers in the Territory or appoint other representatives, agents, distributors or the like with authority to sell or lease the Products to customers.

2.3 ABC shall exert its best efforts and take all necessary legal actions to cause its other distributors, agents, representatives or the like not to sell, distribute or lease, directly or through third parties, the Products to customers.

Article 3. Nature of Relationship

XYZ, as an agent of ABC, shall be an independent contractor. Nothing in this Agreement shall be construed to create any other relationship.


Article 4. Duties and Responsibilities of XYZ

The duties and/or responsibilities of XYZ shall be to;

4.1 Use its best efforts to solicit customers in the Territory to enter into agreements for the Products;

4.2 Conduct its business so as to maintain and increase the goodwill and reputation of ABC and the Products;

4.3 Pay all expenses incurred by XYZ in the performance of its duties under this Agreement;

4.4 Provide training to customers for the Products. In the event XYZ needs additional training support, XYZ is to report requirements for technical backup to ABC;

4.5 Use only promotional material supplied or approved by ABC for purposes of promotion of the Products;

4.6 Provide monthly reports via fax or e-mail, on a monthly basis, to ABC with detailed information regarding the situation of the market, sales prospects and sales forecast for the following 3-month period. In addition, XYZ shall provide ABC with a marketing report summarizing XYZ’s marketing activities during the prior month and planned objectives of the following month;

Article 5. Duties and Responsibilities of ABC

The duties and/or responsibilities of ABC shall be to ;

5.1 Appoint XYZ as its exclusive sales agent for the Products within the Territory ;

5.2 Make its best efforts to assist and cooperate with XYZ in developing and promoting the sale of the Products in the Territory ;

5.3 Do not, itself directly or through third parties, sell, distribute or market the Products to customers in the Territory or appoint other representatives, agents, distributors or the like with authority to sell or lease the Products to customers ;

5.4 Quote to XYZ the most reasonable prices and endeavor to meet competitions from other brand or makers ;

5.5 Provide, at its expense, samples, sales literature, demonstration kits and any other material, requested by XYZ necessary for XYZ’s performance of its duties under the Agreement.

Article 6. Agent soliciting Offer

6.1 XYZ shall sell the Products based on the latest prices of the Products provided by ABC.

6.2 XYZ shall forward inquiry or offer for the Products, upon receipt of them from customers, to ABC and ABC shall within 5 (five) days after receipt make an offer against the inquiry or, notify XYZ whether the offer by the customers is accepted or not.

Article 7. Offer Agent

7.1 ABC appoints XYZ as its offer agent and authorizes XYZ as an offer agent to issue offer sheet on behalf of ABC to customers.

7.2 XYZ shall issue offer sheets based on the latest prices of the Products provided by ABC.

Article 8. Acceptance of Order

To effect the delivery of the Products, XYZ will require the customers to issue to ABC a fully executed Purchase Order.

Article 9. Payment of Commissions

9.1 XYZ shall be compensated by ABC for its services on the basis of commissions. ABC agrees to pay Commissions to XYZ as follows ;

a) For obtaining sales contract from customers, XYZ shall receive commissions as follows ;
- For the sales under US $ 500,000,- per calendar year : Two(2) percent of the total amount paid by customers to ABC ;
- For the sales between US $ 500,000,- and US $ 800,000,- per calendar year : Three(3) percent of the total amount paid by customers to ABC; and
- For the sales over US $1,000,000,- per calendar year : Five(5) percent of the total amount paid by customers to ABC.

b) For providing training and technical support to customers, XYZ shall receive as commission of Two(2) percent of the total amount paid by customers to ABC, after training has been completely provided to customers.

9.2 Such compensation shall bear no relationship whatsoever to the number of hours expended by XYZ in performing such services or any expenses by XYZ in performing such services or any expenses related thereto.

9.3 Commission shall be paid in United States Dollars. Payment of commission shall be made by ABC to XYZ by means of T/T (Telegraphic Transfer) to XYZ’s designated bank account, within Seven(7) working days of receipt of (a) payment from customers, and (b) invoice for commission amount from XYZ . XYZ shall submit invoices for commissions to ABC, which are required for ABC to make the payment.

Article 10. Limits of Authority of XYZ

XYZ shall not, without prior written approval from ABC, take any of the following actions:

10.1 Waive, alter, or change any provision of any offer sheet issued by ABC;

10.2 Incur any expense or obligation in the name of ABC;

10.3 Use ABC’s name, trade names, trademarks, or logos for other purposes except for its business to perform this Agreement ;

10.4 Enter into agreements with other parties in the name of ABC or create any obligations on behalf of ABC.

Article 11. Trade Shows and Advertising

Within the Territory, XYZ shall exhibit ABC’s Products at trade show venues. Also, within the Territory, XYZ shall advertise ABC’s Products in trade magazines and journals, as agreed upon on a case-by-case basis. The expenses related to the exhibition and advertisement shall be made at the expense of XYZ.

Article 12 Voluntary Termination

Either ABC or XYZ may terminate this Agreement at any time , by giving the other party thirty(30) days prior written notice. In addition, unless terminated by the parties voluntarily, this Agreement effects two(2) years from the date of signatures and can be automatically renewed for another two(2) years by mutual agreement in written by the parties. Upon termination, all customers will have a relationship directly with ABC. Within twenty(20) days after termination of this Agreement, XYZ shall submit to ABC:
a) a completed list of all current, prospective or pending jobs in which XYZ was involved prior to the termination of this Agreement and that are in some state of current activity, or have not been consummated or otherwise finalized at the time of such termination; and

b) a completed report on the status of all negotiations with respect to such prospective or pending jobs.


Article 13. Involuntary Termination

ABC may terminate this Agreement immediately, without thirty(30) days notice to XYZ.

a) Breaches any material provision of this Agreement;
b) Violates any law or regulation;
c) Commits any willful or dishonest act that could injure ABC.


Article 14. Confidentiality

XYZ acknowledges that ABC’s information is owned by ABC and agrees for itself and its employees to keep ABC’s information in strict confidence and not to disclose it to any third party without the prior written consent of ABC. ABC acknowledges that XYZ’s information is owned by XYZ and agrees for itself and its employees to keep XYZ’s information in strict confidence and not to disclose it to any third party without the prior written consent of XYZ.

Article 15. Exceptions to Confidentiality

The obligations in Article 14 shall not apply to confidential information of a party where the other party demonstrates that the confidential information:

15.1 has become publicly known through no wrongful act of that other party or its employees;

15.2 has been rightfully received from a third party without breach of this Agreement;

15.3 has been gained or developed independently by that other party without breach of this Agreement or infringement of the proprietary rights of the party about whom or whose products the information has been gained or developed;

15.4 has been approved in writing for public disclosure by the party to whom it belongs.

Article 16. Trademarks

XYZ acknowledges that all rights in any trademarks associated with the business of ABC (i.e. trademarks, service marks, slogans, logos, designs, and other similar means of distinction), including all goodwill pertaining thereto, shall be the sole property of ABC. XYZ may use and display such trademarks only in the manner and for the purpose authorized by ABC, and only during the term of this Agreement. Upon termination of this Agreement for any cause, XYZ shall cease holding itself out as a distributor of the Products and cease using in any way ABC’s name or its proprietary rights or any material similar thereto.

Article 17. Applicable Law

This Agreement shall be governed and construed in accordance with the laws of the Republic of Korea.

Article 18. Arbitration

Basically, all disputes arising between the parties hereto in connection with the Agreement shall be settled through friendly consultations between the parties. In case no agreement can be reached through consultations, all disputes, controversies or differences which may arise between the parties out of or in relation to or in connection with this Agreement or for the breach thereof shall be finally settled by arbitration in Seoul, Korea in accordance with the Commercial Arbitration Rules of the Korean Commercial Arbitration Board and under the Law of the Republic of Korea. The award rendered by the arbitrator shall be final and binding upon both parties concerned.

Article 19. Force Majeure

Neither party shall be liable to the other party for nonperformance or delay in performance of any of its obligations under the Agreement due to war, revolution, riot, strike or other labor dispute, fire, flood, acts of government or any other causes reasonably beyond its control. Upon the occurrence of such a force majeure condition, the affected party shall immediately notify the other party of any further developments. Immediately after such conditions is removed, the affected party shall perform such obligation with all due speed.

Article 20. Notices

Any notice, request, consent, offer or demand required or permitted to be given in this Agreement, shall be in writing and shall be sufficiently given if delivered in person or sent by registered airmail, fax or cable confirmed by registered letter, addressed as follows ;

i) To ABC
- Address : C.P.O Box No. 112-1, Jongro-ku, Seoul, Korea
- Phone : +82-2-1234-567
- Fax : +82-2-1234-789
- Cable : cableabc-111

ii) To XYZ
- Address : C.P.O Box No. 211-1, Sanford, NC, 777-1234, U.S.A
- Phone : +1-919-9876-5431
- Fax : +1-919-9876-5432
- Cable : cablexyz-222


Article 21. Entire Agreement

This Agreement constitutes the entire understanding of ABC and XYZ with respect to the subject matter hereof.

Article 22. No Assignment

No assignment of this Agreement shall be valid without the prior written consent of the other party hereto.

Article 23. Amendment, Change, Modification

This Agreement is not changed, modified or amended by the parties of this Agreement provided that such change, modification or amendment is in writing and signed by both parties.

Article 24. Waiver

All waivers hereunder must be in writing, and the failure of any party at any time to require the other party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of the obligation. Any waiver of any breach of any provision of this Agreement shall not be considered as a waiver of any continuing or succeeding breach of such provision or a waiver or modification of the provision.


IN WITNESS WHEREOF, in parties hereto have caused this Agreement to be executed by their respective duly authorized representative as of the day and year first above written.


For and on behalf of
ABC

Name :
Title :



For and on behalf of
XYZ

Name :
Title :
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