✓ 계약서 = 구체적인 실행 매뉴얼 “자세한 사항은 추후 합의한다.”x
수출입 계약서 작성실무
• 국제계약의 중요성과 계약서 작성기법
• 수출입계약서 작성실무
1. 일반적인, value-neutral 조항은 존재하지 않는다.
(반드시 누군가의 이해관계/(불)이익을 대변한다.)
2. 세상에 공정한 계약은 없다! Equal Arms Length? X Fair Contract? X
3. 내게 유리한 계약서를 써라.
3-1. 나에게 덜 불리한 계약서를 써라.
4. 계약관계에 감성 넣지 마라.
✓ 계약서≠독립선언문
✓ 계약서 = 구체적인 실행 매뉴얼 “자세한 사항은 추후 합의한다.”x
✓ 계약서에 쓴 내용 = 당사자의 마음속 의도
✓ 법적 효력
⮚ 논리성 (앞뒤가 맞게, 조항충돌없이)
⮚ 실현 가능성
⮚ 준거법에 맞게
⮚ 해석 가능하게
✓ 세부적 => 총체적 => 전략적
계약서 검토
✓ 상대방의 흑심파악…
⮚ 왜 여기?
⮚ 목적?
⮚ 이것 땜에 어떤 상황이?
계약서의 어떠한 조항도 누군가의 이해관계/
이익을 대변하지 않는 것은 없다.
“내일 계약서 싸인하러 출장가는데요…”
임원: “그래 그냥 싸인하고 실무적으로 풀자!
우리가 무역 하루이틀 하냐?” 대리: “그럼요, 이사님이 배테랑이신데…”
“아, 그건 변호사님이 몰라서 하시는 말씀인데요…” (‘니가 실무를 해 봤니?’)
- 이 회사는 우리나라고 따지면 삼성, 현대같은 기업…
- 이 회사는 진짜 믿을만 합니다.
- 이 회사는 틀림없습니다. 확실합니다. 그건 제가 보증합니다.
- 이 회사는 거래한지 20년이 되었는데 한 번도 문제가 없었다…
내가 계약을 잘 한건가?
Mr. Xxx You are great! You are my real Friend!
You are so tough!
No Deal like this anymore!!!
국제계약서 기본 구조
• 정의 definition/interpretation
• 계약 당사자 parties
• 대금지불/물품인도 payment/delivery
• 독점 exclusivity/agent duties/MPG
• 품질/보상 quality/warranty
• 계약기간/해지 term and termination
• 분쟁의 해결 dispute resolutions
• 불가항력 Force Majeure
• 비밀유지 confidentiality
• 지적재산권 intellectual property
• representations & warranties
• 기타
notices/severability/assignment/non-
waiver/entire agreement/
EXCLUSIVE DISTRIBUTION AGREEMENT
Dated
Xxx Co., Ltd. (“Company”)
(“Distributor”)
Xx Xxxx Lawyers Level 3 Ilshin Building
0000-0 Xxxxxx-xxxx Xxxxxx-xx Xxxxx, Xxxxx
T x00 0 0000 0000
F x00 0 0000 0000
Contents
1. Interpretation
2. Exclusive Distributorship and Minimum Purchase Guaranty 3. Order, Specification & Delivery
4. Payment
5. Warranty, Limitation of Liability and Technical Supports 7. Obligations of Distributor
8. Reporting
9. Accounting and audit 10. Term and Termination 10.1 Initial term
10.2 Termination with mutual consent 10.3 Termination by Distributor
10.4 Termination for cause by either party 10.5 Rights of termination
10.6 Effects of termination
10.7 Company’s discretion upon termination
10.8 Survival of rights or liabilities after termination 11. Protection of the Intellectual Property Rights 12. Confidentiality
13. Representations and Warranties
14. Default
15. Miscellaneous
Signing
Schedule 1: Products / Warranty Schedule 2: Territory
Schedule 3: Price List / Minimum Purchase Guarantee
• Exclusive Supply Agreement
This Agreement is made and entered into on 날짜 by and between A a corporation duly organized and existing under the laws of 해당국가, having its principal place of business at of 주소 (hereinafter referred to as “Supplier”) and B, corporation duly organized and existing under the laws of 해당국가, having its principal place of business at 주소 (hereinafter referred to as “Purchaser”).
Witnesseth
Whereas, Supplier is xxx and wishes to supply xxx; and
Whereas, Purchaser is xxx and wishes to buy xxx on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
1. 제목: Purchase Agreement (구매계약)
2. 계약체결일: This Agreement is entered into on 날짜
3. 계약당사자: by and between 계약당사자 A, corporation duly organized and existing under the laws of 해당국가, having its principal place of business at 주소 (hereinafter referred to as Supplier) and 계약당사자 B, corporation duly organized and existing under the laws of 해당국가, having its principal place of business at 주소 (hereinafter referred to as Purchaser).
4. 계약의 배경 및 목적: Witnesseth, Whereas, Supplier is xxx and wishes to supply xxx; and whereas, Purchaser is xxx and wishes to buy xxx on the terms and conditions set forth herein.
5. Recital of Consideration (계약의 선언): NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows
Non-operation part
“…having its principal place of business at...” “…having its registered office at…”
그냥 간단히
ABC Company
… of…
93 Sugarloaf Cir. Palmerston ACT Australia”
다시 정리하면, 꼭 필요한 것
Agreement
This Agreement is made and entered into on 날짜 by and between 계약당사자
A, corporation duly organized and existing under the laws of 해당국가, having its
principal place of business at of 주소 (hereinafter referred to as Supplier) and 계 약당사자 B, corporation duly organized and existing under the laws of 해당국가, having its principal place of business at of 주소 (hereinafter referred to as Purchaser). With nesseth
Whereas, Supplier is xxx and wishes to supply xxx; and
Whereas, Purchaser is xxx and wishes to buy xxx on the terms and conditions under this Agreement set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants set
forth herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto covenant and agree as follows:
Purchase Agreement This Agreement is made on 날짜
between 계약당사자 A of 주소
(Supplier) and 계약당사자 B of 주소
(Purchaser).
Whereas, Supplier wishes to supply xxx and Purchaser wishes to buy xxx on the terms and conditions under this Agreement.
THEREFORE, Parties agree as follows:
이것보다 더 간단히?
Purchase Agreement
⚫Supplier
:
Name/Address
⚫Purchaser : Name/Address
⚫Date :
Parties agree as follows:
• Details
Parties | ||
Company | Name | xxx Co., Ltd. |
Address | Seoul, Kangnam-gu, Seocho-gu, 123-4 Ilshin Xxxxxxxx 0xx Xxxxx, Xxxxxxxx of Korea | |
Telephone Facsimile | +82-2-2038 3620 +82-2-2038 3621 | |
Attention/Email | ||
Distributor | Name | xxx Xxx. |
Xxxxxxx | 0 Xxxxxxxxx Xxx. Xxxxxxxxx XXX, Xxxxxxxxx | |
Telephone | +61-2-6262 3364 | |
Attention/Email | ||
Summary | ||
Governing Law / Venue | Korean Law / Korean Commercial Arbitration Board (KCAB) | |
Expiry Date | 5 years from the date of execution of this Agreement by both parties. | |
Recitals 또는 Background | A. Company is engaged in the business of 업종 B. Distributor is specialized in marketing, distributing and selling 취급상품, having relevant kno w-hows, experiences, professionalism and well-established marketing networks in Territory. C. Company wishes to appoint Distributor as its exclusive distributor in Territory and Distributo r wishes to accept the appointment in accordance with the terms and conditions of this Agre ement. | |
간결하게 (동어반복)
정의 definition/interpretation
Claim means, without limitation, any action, application, claim, suit, cause of action, liability, proceeding, allegation, demand, debt due, costs and expenses, howsoever arising, whether at law or equity, whether fixed or unascertained, and whether present, future or contingent, and any Damages.
Damages means any and all relief or recoveries of whatever nature or description and whether equitable, common law or statutory or otherwise, and includes, but is not limited to, monetary damages of every description, such as economic loss, property loss, any other item of loss or injury, statutory or penal damages, aggravated damages, exemplary damages, solicitors’ fees, pre-judgment or post-judgment or other interest, injunctive or declaratory relief, expenses and any court costs or fees.
Duty means any stamp, transaction or registration duty or similar charge which is imposed by any Taxation Authority and includes but is not limited to, any interest, fine, penalty, charge or other amount which is imposed in that regard.
Encumbrance means any mortgage, lien, charge, pledge, or assignment by way of security, security interest, title retention, preferential right or trust xxxxxxxxxxx, Xxxxx, xxxxxxxxxx, xxxxxxxx, xxxxxx x prendre, easement or other security arrangement or any other arrangement having the same effect.
우리끼리 약속
Unless the contrary intention appears, a reference in this Agreement to: (clauses, annexures and schedules) a clause, annexure or schedule is a reference to a clause in or annexure or schedule to this Agreement;
(reference to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(singular includes plural) the singular includes the plural and vice versa and reference to any gender includes the other genders;
(person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any Government Agency;
(meaning not limited) the words “include”, “including”, “for example” or “such as”, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.
관련법 인용/적용: Insolvency
A person is Insolvent if:
(a)it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Company Act of Western Australia;
(b)it is in liquidation, in provisional liquidation, under administration or wound up or has had a Controller appointed to its property;
(c)it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other Parties to this Agreement);
(d)an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;
(e) it is otherwise unable to pay its debts when they fall due; or
something having a substantially similar effect to (a) to (e) happens in connection with that perso under the law of any jurisdiction
EXCLUSIVE DISTRIBUTION AGREEMENT
General terms
1. Interpretation
1.1 Definitions
These meanings apply unless the contrary intention appears:
Business Day means a day other than a Saturday, Sunday or public holiday in the Republic of Korea.
Costs includes charges and expenses, including those incurred in connection with advisers.
Details means the section of this Agreement headed “Details”.
…
A person is Insolvent if …. (a)…
(b)…
Product(s) means those products specified in Schedule 1.
Territory means the geographical area specified in Xxxxxxxx 0, xxxxxx, Xxx Xxxx Xxxxx xx XXX.
1.2. References to certain general terms
Unless the contrary intention appears, a reference in this Agreement to:
(a) (reference to statutes) a statute, ordinance, code or other law includes …;
(b) (singular includes plural) the singular includes the plural and vice versa and reference to any gender includes the other… genders;
(c) (person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture…; and
(d) (meaning not limited) the words “include”, “including”, “for example” or “such as”, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.
1.3 Headings
Headings (including those in brackets at the beginning of paragraphs) are for convenience only. They do not affect the interpretation of this
Agreement.
2. Exclusive Distributorship and Minimum Purchase Guaranty
1. Company hereby appoints Distributor as the exclusive distributor for Products in Territory and Distributor shall use its best efforts to promote and sell Products to customers within the Territory.
2. The appointment does not constitute any rights relating to products of Company which are not defined as Products in this Agreement.
3. Distributor shall not actively offer Products, seek customers, establish branches or maintain any distribution depots for sale outside Territory. Distributor shall notify Company of any enquiries outside Territory. Notwithstanding any provision in this Agreement, unless Distributor provides evidence to the contrary, Company reserves the right to cancel all outstanding contracts with, and/or cease delivery of any Products to Distributor if Company reasonably believes that Distributor has diverted, or intends to divert, Products out of Territory.
4. Distributor shall act as an independent contractor and shall not act in any way, which could be construed as though it is the legal representative of, agent and/or employee of Company.
5. Distributor is not privy to any license to manufacture, duplicate, repair, refurbish, copy, or otherwise reproduce any of the Products.
6. Distributor shall supply Company with a detailed distribution plan including ……. Company reserves the right to disallow…as it seems fit.
7. Distributor shall share information in connection with all material contacts and activities with customers and potential customers.
8. Distributor shall not purchase, import, export, advertise, distribute, or otherwise deal in products competitive with Products in Territory.
9. Distributor shall not be entitled to any remuneration or goodwill of any nature whatsoever other than the profit it makes on the sale of Products in the Territory.
10. Distributor shall purchase from Company at a minimum (Minimum Target) as specified in Schedule within Territory.
11. If Distributor fails to purchase Minimum Target, Company, at its sole discretion, may terminate this Agreement and/or seek for liquidated damages as specified in Schedule 3.
3. Order, Specification & Delivery
1. Order
(a) An Order constitutes an offer by Distributor to purchase Products in accordance with this Agreement. Distributor is responsible for ensuring that the terms of the Order are complete and accurate enabling Company to perform this Agreement, including accurate description of Products and exact quantity required, and detailed packaging & shipping instructions including commercial invoice.
(b) Company shall have the export standard packing duty for the safe delivery products without damages.
(c) No Order submitted by Distributor shall be deemed to be accepted by Company unless and until confirmed in writing by Company.
(d) No Order which has been accepted by Company may be cancelled by Distributor except with the agreement in writing of Company and on terms that Distributor shall indemnify Company in full against all Loss (including the cost of all labour and materials used) incurred by Company as the result of the cancellation.
(e) Distributor is fully responsible for inventory control: all stock and pending orders. Company is not responsible for any problems
relating to Distributor’s inventory of Products including, without limitation, the expiration of Products.
2. Specification
(a) The quantity, quality and description of and any Specification shall be those set out in Company’s quotation (if accepted by Distributor) or Distributor’s order (if accepted by Company).
(b) Company, after obtaining the written consent of Distributor, has the right to amend Specification if required by any applicable
statutory or regulatory requirements
3.3 Delivery
a. Company shall deliver Products ordered from Distributor on Ex Work basis (Incoterms 2010) after the inspection at Company’s factory conducted by Company or an internationally recognized independent inspector appointed by Company.
b. All orders placed by Distributor shall be delivered by Company within thirty (30) Business days after Company receives Distributor’s confirmation of Company’s proforma invoice. Despite this, when it is not possible for Company to deliver Products in time, Company shall immediately notify Distributor and follow the instructions of Distributor, and both Parties shall discuss how to resolve the problem.
c. The inspection for defining the quality of Products by Company at Company’s factory
before the shipment is final.
d. In the event of inspection by Distributor and/or their servant or agent, any complaint in relation to Products must be notified to Company in writing within ten (10) Business Days of that inspection and in the absence of such notice Distributor shall be conclusively deemed to have accepted Products as being in conformity with this Agreement and shall not thereafter be entitled to reject Products.
e. Distributor shall bear the cost of keeping Products after requesting Company to postpone the shipment. If Distributor does not take over Products within 6 months after such request, Company has the right to sell or otherwise dispose Products at its own discretion.
f. Title to Products shall not pass to Distributor until Company has received payment in
full (in cash or cleared funds).
g. Until title to Products has passed to Distributor, Distributor shall (i) hold Products on a fiduciary basis as Company's bailee; (ii) store Products separately from all other Products held by Distributor so that they remain readily identifiable as Company's property; and (iii) not remove, deface or obscure any identifying mark or packaging on or relating to Products.
3.4 Return Policy
No Products shall be accepted by Company for return, exchange or credit unless the following terms and conditions have been complied with:
(a) Subject to the terms and conditions of this Agreement, Products may be accepted for return if::
(i) Products alleged to be defective in material and/or workmanship; or
(ii) incorrect type or quantity of Products contained in each delivery.
(b) Only Products purchased directly from Company shall be accepted for return.
(c) Acceptance of the returned Products is subject to the following requirements:
(i) Returned Products must be accompanied by a dispatch note specifying the return authorization number, Company’s original invoice number, the reason for the return and any other information required by Company;
(ii) Sterile Products returned for exchange or credit must be in the original unmarked, unopened and undamaged boxes with original legible printed lot numbers and must otherwise be in resalable condition; and
(iii) Special order Goods and Products that are no longer part of the regular commercial line of Company shall not be accepted for return for credit or exchange, except for those determined by Company to be defective in material and/or workmanship.
4. Payment
4.1 Price
(a) The prices of Products shall be determined in accordance with the price list in Schedule 3.
(b) Company may, by giving notice to Distributor at any time up to 30 Business Days before delivery, increase the price of Products to reflect any increase in the cost of Products that is due to:
(i) any request by Distributor to change the delivery date(s), quantities or types of Products ordered, or the Specification; or
(ii) any delay caused by any instructions of Distributor or failure of Distributor to give Company adequate or accurate information or instructions no later than 5 Business Days upon receipt of a written request for such instruction or information from Company.
4.2 Terms of payment
(a) All payment for Products shall be made in US dollars in full to the account specified in Schedule 3 by wire transfer (T/T) within 5 Business Day from the invoice date.
(b) The bank account specified herein shall not be changed other than by Company’s official notice via a registered mail signed by Company’s chief executive officer (CEO) or representative together with a confirming telephone call from its CEO, representative or its nominee. Any notice of change to the designated account in any other means, including notice by email whether made by Company or a third party, is invalid. Distributor who made such payment relying on such invalid notice of changes shall still be liable to pay the amount due.
4.3 Non-payment
(a) If Distributor fails to make any payment by due, then without prejudice to any other right or remedy available to Company, Company shall be entitled to:
(i) terminate this Agreement or suspend any further deliveries to Distributor; and
(ii) charge interest at of 10 per cent per annum on the unpaid amount. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. Distributor shall pay the interest together with the overdue amount;
(a) Distributor shall also reimburse Company Costs (including all legal fees, including attorney fees, debt collection agent fees, fees to a credit and/or asset search firms, and payment to courts or arbitration boards) incurred in the collection of any overdue amount.
(b) Distributor shall pay all amounts due under this Agreement in full without any deduction and Distributor shall not be entitled to assert any credit, set-off or counterclaim against Company in order to justify withholding payment of any such amount in whole or in part. For example, raising a claim in relation to the qualify of Products after the non-payment on the due date is not allowed and even if so raised, null and void.
5. Obligations of Company
5.1 General Obligations
Company shall:
(a) prepare and keep technical documents relating to Products…;
(b) provide documents and/or information required by competent authority;
(c) maintain ongoing quality assurance…; and
(d) furnish to Distributor promotional materials in English, such as…
5.2 Warranty
Subject to clause 3.4 and Schedule 4, Company warrants that:
(a) Products conform to Company’s Specifications for such Products;
(b) Products are free from material defects in material or workmanship…
(c) title to Products will pass to Distributor free and clear of any security interest, lien or other encumbrance; and
(d) Company assumes no liability with respect to devices reprocessed or modified, and makes no warranties, express or implied, including merchantability or fitness for a particular purpose, with respect to such devices.
5.3 Limitation of Liabilities and Technical Supports
(a) any Products not in conformity with the applicable drawings, designs, quality control plans, Specifications, samples or other descriptions provided by Company shall be subject to repair, replacement or refund at Company’s direction provided that a notice is made to Company within 14 days from the arrival of Products at the destination port.
(b) If Distributor gives such notice, Company shall be given a reasonable opportunity to examine such Products and Distributor (if asked to do so by Company) shall return such Products to Company's place of business.
(c) Company shall not be liable for warranty set out in this clause if:
(i) Distributor makes any further use of such Products after giving such notice;
(ii) the defect arises because Distributor failed to follow Company's written instructions;
(iii) the defect arises as a result of Company following any drawing, design or Specification supplied by Distributor;
(iv) Distributor alters or repairs such Products without the written consent of Company;
(v) the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions of Distributor;
(vi) any of Products are subject to misuse, neglect, accident or abuse, improper repair, alteration, modifications, in any way, and when Products are used in violation of instructions furnished by Company.
(vii) Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
(viii) Products are used in an application beyond Company’s design specification.
(a) In any case, the monetary value of Company’s compensation for the defect of Products sold to Distributor shall not exceed the price of that Products.
(b) Company is not liable under this Agreement for any indirect damages, including reputational damages, damages from third parties including any retailer or dealer, loss of turnover, loss of profits or loss of goodwill.
(c) Except as provided in this clause, Company shall have no liability to Distributor in respect of quality or warranty of Products.
(d) Except as set out herein, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
6. Obligations of Distributor
6.1 General obligation
(a) Distributor shall undertake for its own account, advertisement, and sales promotions...
(b) …submit to Company an annual projection…by 60 days before the end of
the preceding year.
(c) …inform Company in writing with respect to:
(i) relevant market developments …;
(ii) important changes relating to Distributor's business…control or ownership of Distributor; and
(iii) all information reasonably be regarded as relevant to Company for the
performance...
(d)…provide report in respect of its sales in Territory in the preceding quarter. (e)…be responsible for any claim or regulatory order for its sales in Territory.
(f) …use its best endeavours to support and promote Company’s image, trademarks and reputation, and sale of Products within Territory. Among other things, Distributor shall ensure the following:
(i) maintenance of a state of the art sales organization and adequate, trained personnel that is exclusively dedicated to the Company business;
(ii) maintenance of a state of the art efficient customers' services;
(iii) assist Company at any trade show within Territory where Company promotes Products…; and
(a) Distributor shall further undertake to:
(i) pay Taxes imposed on Products purchased by Distributor…
(ii) obtain at its own costs all permissions and licenses for importing and selling
Products in Territory;
(iii) make sure that Products are suitable for sale in Territory and particularly to check if they comply with all trade provisions, regulations, specifications or recommendations in force or customary in Territory;
(iv) supply Company with all trade provisions…and notify Company of any changes thereto;
(v) comply with all reasonable directions issued by Company…
(vi) fulfill all obligations resulting from the laws and regulation in Territory; and
(vii) keep adequate insurances …to cover the Products…other risks… third party liability…
6.2 Reporting
(a) Within …day,…provide …financial state of affairs of Distributor.
(b) …provide advertising and promotion costs during …
(c) Company reserves the right to request further information…
(d) …provide Company…sales and inventory report…
(e) Upon ..incident, accident or near incident…(Incident), the following procedures shall be applied:
(i) …report…to Company within twenty-four (24) hours…; and
(ii) …report to the appropriate authorities… in accordance with the relevant laws and regulations.
(f) Company shall perform…investigation… instruct Distributor… (g)…reports under this Agreement shall be in English or Korean. 6.3Supply to purchasers
(a) Distributor shall not itself or allow its employees, customer(s)… :
(i) modify any Products; and/or
(ii) copy, clone, reverse engineer...
(b) …any complaint …in Territory, Distributor shall immediately investigate and take proper actions.
1. Inventory and Recording
(a) …maintain minimum inventory levels…
(b) …keep records of serial numbers… All records shall include:
(i) name and address of the customer;
…
(c) These records shall be available for inspection upon request by Company or by the appropriate authorities
7. Quality and Certification
7.1 Storage and inspection
(a) … keep Products...with the User’s Instruction....
(b) Company reserves the right to visit Distributor’s premises…
7.2 Licenses, permits or approvals: Distributor must at its own expense maintain necessary licenses, permits and other consents or approvals required by the appropriate authorities in Territory.
7.3 Ownership of certification
(a) any approval, certification, license…obtained by Distributor in relation to Products shall be pursued by Distributor in Company’s name. If Distributor is required by law to obtain such approval …in its own name, it shall be deemed to be held by Distributor on behalf of and in trust for Company.
(b) Distributor agrees to grant, assign, and transfer within seven (7) days of any termination or expiration of this Agreement, including the case of a
breach or default by Company, the following:
(i) All regulatory documents, including all Products authorizations, registrations, permits and approvals of any kind, and all applications;
(ii) All of Distributor’s rights, titles and interests related to Products; and
(iii) All trademarks, marks, trade names, patents, copyrights, designs, drawings, formulas or other data…
(c) Distributor agrees to execute any and all documents and perform all such acts as requested by Company to perfect such transfer.
7.4 Notify infringement: …notify Company …infringement of the intellectual property rights of Company or unauthorized or unlawful use…
8. Accounting and audit
8.1 …keep accurate accounts in respect of the Company business.
8.2 …an independent accountant instructed by Company shall have the right to examine and make extracts and copies from all relevant financial
records… Distributor shall assist…
8.3 The costs of such investigation are borne by Company, unless:
(a) an error/ shortfall of 2% or more is discovered by the accountant; or
(b) Distributor has not fulfilled any of its reporting obligations…
9. Term and Termination
9.1 Initial term: This Agreement shall be valid for 2 years from the execution…and automatically renewed (every, consecutive, revolving) 2 years…unless a Party notify the other Party to terminate…30 days before the expiration…
9.2 Termination with mutual consent :… may be terminated at any time with immediate effect by mutual agreement of Parties.
9.3 Termination by Company: Distributor fails to meet Minimum Target.
9.3 Termination by Distributor: If Force Majeure Events last over 90 days…, Distributor may have the right to terminate…
9.4Termination for cause by either Party: Either Party shall be entitled to terminate… in the event that:
(a) the other Party commits a default in observing or performing, …the Party does not rectify or cure such default within 30 days after receipt of written
notice from the other Party…
(b) the other Party files for bankruptcy…commences any other proceedings relating to reorganization, rehabilitation…in any jurisdiction whether now or hereafter… or
(c) a custodian, liquidator, receiver…. is appointed for the other Party…
9.5 Rights of termination: The rights to terminate this Agreement under this clause are without prejudice to any other rights of Parties by virtue of
governing law or this Agreement.
9.5 Effects of termination: Upon termination…:
(a) all amounts owed by Distributor to Company shall immediately become due and payable…
(b) Distributor shall return within 10 Business Days… destroy;
(c) Distributor shall advise Company of its then outstanding Products orders…;
(d) …take all steps to effect a smooth transition between Company or a third party distributor nominated by Company.
(e) In no event shall Company be liable for Distributor’s loss of profits, goodwill, …;
(f) Distributor shall cease to …; and
(g) Company shall, at its option, either repurchase… or grant to Distributor a further period…
9.6 Survival of rights or liabilities after termination: …termination shall not affect any accrued rights or liabilities of either Party… nor …affect the coming into force or continuation of any other provisions of this Agreement…, survival of rights or liabilities after termination, limitation of liability, protection of intellectual property rights, confidentiality, notices and governing law and venue.
10. Protection of Intellectual Property Rights
1. Any Intellectual Property Rights …shall belong to Company.
2. Parties acknowledge that Company does not intend to license-out or otherwise transfer any of the Intellectual Property Rights to Distributor.
3. Distributor is obliged to transfer promptly all information with respect to any Claim or threatened Claim received in respect of Products and Intellectual Property Rights. Distributor shall have no authority whatsoever to enter into any negotiations with the purpose of settling such Claims and Distributor shall at all times act only upon written instructions received from Company. Distributor shall assist Company in any procedures and/or negotiations…
4. Distributor shall refrain from making any admission, statement or doing any acts or things which might invalidate or affect Company's Intellectual Property Rights or interest pertaining to the Intellectual Property Rights.
5. Distributor shall promptly report to Company the particulars of any infringement or threatened infringement or piracy by third parties of the Intellectual Property Rights or any act of unfair competition by reason of imitation or otherwise by third parties of the Intellectual Property Rights.
6. Distributor shall not or shall not try to copy, reverse-engineer, manufacture or sell Products directly or indirectly through a third party. Products shall only be used for the purpose of this Agreement.
7. After termination of this Agreement for whatever cause, Distributor shall not use the Intellectual Property Rights in whatever manner, form or for whatever purpose, except for the purpose of honoring remaining orders already made by a third party.
11. Confidentiality
1. Distributor shall and shall procure that its directors / key personnel, affiliates and their directors / key personnel, hold Company’s and its affiliates' information obtained in connection with the execution of this Agreement, including, information on Intellectual Property Rights and know-how as well as business information, including the price of Products and contents of this Agreement (“Confidential Information”) confidential and use such Confidential Information only for the purposes of the provision, use and normal performance of this Agreement.
2. Distributor shall and shall procure that its directors / key personnel, affiliates and their directors / key personnel at all times during the term of this Agreement and 10 years thereafter refrain from disclosing Company's or its affiliates' Confidential Information to any third party without Company's or its affiliates' written consent.
3. The aforementioned obligations of confidentiality and non-use will not apply with respect to:
(a) information which is generally available to the public at the date of this Agreement;
(b) information already known to Distributor at the time of disclosure; or
(c) information which is allowed to be released by Company.
12. Representations and Warranties
1. Parties’ general representations and warranties: A Party represents and warrants to the other Party that:
(a) (organisation and existence) it has been organized in accordance with the laws of its place of organisation, is validly existing under those laws
and has power and authority to carry on its business as it is now being conducted;
(b) (power) it has power to enter into this Agreement and comply with its obligations under it;
(c) (no contravention or exceeding power) this Agreement and the transactions under it do not contravene its constituent documents (if any) or any law or obligation by which it is bound or to which any of its assets are subject or cause a limitation on its powers;
(d) (authorisations) it has in full force and effect the authorisations necessary for it to enter into this Agreement, to comply with its obligations and exercise its rights under it and allow it to be enforced;
(e) (solvency) it (i) is not Insolvent, (ii) is currently able to pay its debts and obligations as they come due in the ordinary course, and (iii) is not subject to any bankruptcy, insolvency, liquidation or other similar proceedings relating to or affecting the enforcement of creditors’ rights generally; and
(f) (Signing Resolutions) The Board of Directors of Parties have approved the resolutions (Signing Resolutions) to authorize this Agreement and the transactions contemplated. Signing Resolutions are valid, in full force and effect and have not been modified or supplemented in any respect.
(g) Distributor further represents and warrants that:
(i) it is validly existing and in good standing as a corporation under the laws of Territory, and has all necessary corporate power to perform its
obligations under this Agreement and its financial resources are sufficient to enable it to perform all of its obligations under this Agreement;
(ii) it is not currently involved in any litigation or disciplinary action relating to the sale of medical devices before a regulatory authority or under the laws of any country, and to its knowledge no such proceedings are anticipated to commence during the term of this Agreement; and
(iii) it has sufficient personnel and capacity to perform its obligations under this Agreement.
2. No other representations or warranties: Parties acknowledge and agree that, except as set out in this Agreement, no representation or warranty has been made to one another...
Miscellaneous
부대조항? 잡조항?
계약서의 어떠한 조항도 누군가의 이해관계
/이익을 대변하지 않는 것은 없다.
Notices
Notices under this Agreement must be in writing. They must be sent to the post or email address, fax number stated in the Details.
통지방법
Severability (Sever P ability) 자를 수 있다.
<.. image(사과, 과일, 테이블, 앉아있는이(가) 표시된 사진 자동 생성된 설명) removed ..>
(a) The parties agree that if any part, term, or provision of this Agreement is found illegal or in conflict with any valid controlling law, the validity of the remaining provisions will not be affected thereby.
(b) In the event the legality of any provision of this Agreement is brought into question because of a decision by a court of competent jurisdiction in which this Agreement applies, the provision in question may be revised or deleted entirely in order to comply with the decision of said court.
사과가 썩었어? 그 부분만 파내고 먹자!
Non-Waiver:
If a Party does not exercise a right or remedy fully or at a given time, the Party may still exercise it later.
시간지나도 안봐줘!
<.. image(그리기이(가) 표시된 사진 자동 생성된 설명) removed ..>
<.. image(사람, 남자, 정장, 의류이(가) 표시된 사진 자동 생성된 설명) removed ..>
Entire agreement
This Agreement constitutes the entire agreement of the Parties about its subject matter. It supersedes all previous agreements, understandings and negotiations on that subject matter.
“제가 지금까지 한 말은 거짓말 일수도 있음을 유의하시고
계약체결하시기 바랍니다. “
(i) Company shall not be liable for a default or delay in the performance of its obligations if such default or delay is caused by fire, strike, riot, war, act of God, epidemic and/or pandemic diseases, governmental orders …
OR ANY OTHER CIRCUMSTANCE BEYOND THE
REASONABLE CONTROL OF SUCH PARTY (Force
Majeure Events)…
(ii) Company shall notify Distributor with the occurrence of Force Majeure Event and attempts made to remedy the same…, and, upon cessation of the occurrence, shall give prompt written notice to Distributor of the same.
(iii) The Parties shall agree whether and on which conditions deliveries so omitted shall be made up upon the cessation of Force Majeure Event.
불가항력에 따른 면책조항
No assignment
(a)A Party may not assign any right, benefit or interest in or obligations under this Agreement without the written consent of the other Party, and any purported assignment without such consent will be void.
(b)Company may assign any right, benefit or interest in or obligations under this Agreement to its affiliates and Distributor hereby agrees and cooperates with such assignment in advance.
사전 승락없이 양도 안됩니다!
Remedies cumulative
The rights and remedies provided in this Agreement are in addition to other rights and remedies given by law independently of this Agreement.
치료방법 더 있어요!
Original Copy
This Agreement may be delivered by facsimile or Portable Document Format (PDF), and when so delivered, will have the same force and effect as delivery of an original signature.
스캔본도 싸인 있으면 원본으로 인정합니다.
Serving documents
Without preventing any other method of service, any document in a court action may be served on a Party being delivered to or left at that Party’s address for service of notices in accordance with relevant laws.
우리 법원에서 만나…
넌 됐어!
법원판결
All disputes and questions concerning the construction, validity and interpretation of this Agreement shall be governed by the Korean laws in the Korean court. (The United Nations Convention on Contracts for the International Sale of Goods is expressly and entirely excluded.)
DISPUTE RESOLUTION
중재
Any disputes arising out of or in connection with this contract shall be finally settled by arbitration in Seoul in accordance with the International Arbitration Rules of the Korean Commercial Arbitration Board under the law of Korea. The number of arbitrators shall be [one / three].
The language to be used in the arbitral proceedings shall be [English/한국말]
들어와…
Execution Clause
In witness whereof, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the date first above written.
빌게이츠
회장
리거니 왕회장
November 8. 2018 2018.11.8