AGENCY AGREEMENT

 

THIS AGREEMENT made at this ………day of ………. Between:

 

GODREJ & BOYCE MFG. CO. LTD., a Company incorporated under the Indian Companies Act, 1913, and having its Registered Office at Pirojsha Nagar, Vikhroli, Mumbai 400 079, India, through its Electrical & Electronics Services Division (hereinafter referred to as the “COMPANY”, which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include its successors and permitted assigns) of the One Part,

And

Mr. K. N. K. Sundaram & Mr. P. C. Muthukumar carrying on business in partnership in the name of M/s.  FLUID ZONE having their office at 497 / 793, Avinashi Road, Nava India, Coimbatore - 641 004 [herein after referred to as the firm which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include its successors and permitted assigns) of the Other Part.

 

WHEREAS:

 

1.       The COMPANY is a manufacturer of esteemed repute in India, and is engaged in manufacture of Godrej ControlAiR™ Systems & market EnergAir Enercon systems, more particularly described in Schedule I hereunder written (hereinafter referred to as “the Products”);

 

2.       The Firm is a partnership Firm carrying on the business of ……………at…………………..         

 

3.       The Company is desirous of appointing an agent for general sale and/or marketing and/or promotion of its Products in Coimbatore for Tamil Nadu, Kerala & Pondecherry regions [hereinafter referred to as the ‘Territory’] more particularly described in Schedule II hereunder.

 

4.       The Firm is willing to act as the Agent for the Company and to perform all the provisions of this agreement.

 

5.       The Company has agreed to appoint the Firm as the Agents for the sale and/or marketing and/or promotion of its Products on the following terms and conditions agreed to between the parties.

 

NOW IT IS AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS:

 

ARTICLE 1

 

INTRPRETATION

 

1.1            DEFINITIONS:

 

Commissions means as defined under Article 7of this agreement.

 

Customers means whether the end buyers or even the wholesale buyers?????

 

Taxes means sales tax, excise, and any other tax, which should be included in this, which shall be incurred due to export of the product from one state to another.

 

Territory:   For the purpose of this agreement, Territory means the places where Firm shall be authorized to sell the Company’s Products and more particularly described in Schedule II hereunder.

 

1.2            GOVERNING LAW: This Agreement shall be construed and governed in accordance with the laws of India prevailing at the time of execution of this agreement.

 

1.3            SEVERABILITY:  If any of the written terms, conditions or provisions or the application thereof to any person or circumstance shall at any time or to any extent, be invalid or unenforceable at law such term, condition, or provisions shall be severed from the remainder hereof which shall be affected thereby, and each and every time and in each and every circumstance in which reference is made hereto each term, covenant, condition and provision hereof shall be valid and be enforced to the fullest extend permitted by law.

 

 

1.4            SCHEDULE: Scheduled ‘A’ and Schedule ‘B’ are attached to and form part of this Agreement.

 

ARTICLE 2

 

AGENCY

 

2.1            The Company hereby appoints the Firm as its agent, and hereby grants the Firm rights, for the duration of this agreement, for the sale and/or marketing and/or promotion of the Products [more particularly described in Schedule I hereunder]. [Pls. Specify what other activities will be carried out by the agent. Are the activities mentioned herein sufficient????

 

 

2.2            The Company hereby authorizes the Firm to:

 

a.                 To sell and/or market and/or promote the said Products of the Company.

b.                 To receive all such payments and sums of money as are now due or may hereafter become due and payable to the Company by way of …………………………..and to deposit to and for the Company’s account all such payments received for and on behalf of the Company.

 

ARTICLE 3

 

DELIVERY OF PRODUCT TO THE FIRM

 

3.1            The Products shall be supplied by the Company to the Firm as per the orders or requirement received by the Company from the Firm in writing.

3.2            The Products shall be transported by the Company from its factory to the place or places, required by the Firm and the transport charges and insurance, will be paid by the Firm or the transport charges will be added to the Company’s factory price payable in respect of the product so despatched.

3.3            The Firm can, after seeking a written permission from the Company add the transport charges to the price of Product proportionately.

3.4            The Company shall be responsible for any loss, damage, expense or delay occurred during transport of such Products. [Can we say this???]

3.5            The Firm shall be responsible to take reasonable care in the selection of carriers, truckmen, lightermen, forwarders, agents, warehousemen and others to whom it may entrust the goods for transportation, cartage, handling and/or delivery and/storage or otherwise.

3.6            The Company shall insure and keep insured all the Products supplied to the Firm so long as they are within the custody of the Firm or are in transit from the Company to the Firm against loss or damage by any reason whatsoever.

3.7            DOES THE COMPANY WANT THE FIRM TO INSURE PRODUCTS ONCE THE SAME ARE DELIVERED TO THEM TILL THE TIME THEY ACTUALLY SELL THE PRODUCTS TO THE CUSTOMERS.

 

ARTICLE 4

 

OBLIGATIONS OF THE FIRM:

 

4.1            The Firm covenants with the Company that:

4.1.1             The Firm will not represent, promote and/or market and/or distribute the Products of any of the Company’s competitors making and/or manufacturing and/or distributing the similar or identical Products, either through its own self and/or through any other concern/entity to which the Firm is connected or with which the Firm has any relationship.

4.1.2             The Firm shall make best endeavour to promote sale of the Company’s products in the Territory and shall properly advertise the Products through different media of publicity.

4.1.3             The Firm shall act faithfully and diligently with the Company and disclose all complaints received by them from the customers to the Company.

4.1.4             The Firm shall sell the Products to genuine customers in the Territory and not to any party for re-sale of the same outside the said State. [CAN WE SAY THIS]

4.1.5             The Products will be sold by the Firm at the price that will be fixed by the Company for the Territory specified hereinabove on the basis of the factory price, together with the transport charges, sales tax, octroi and other duties and taxes payable. Such price will be fixed from time to time. The Firm cannot not sell the Products for any price higher than the price so fixed.

4.1.6             The Firm shall sell the Products on cash basis and not on credit. If the Firm sells Product/s on credit, the price thereof payable by the Firm to the Company will be payable and paid irrespective of whether the Firm has received the price form the customer or not.

4.1.7             The Firm shall keep accounts of the Products received from the Company and sold by the Firm in the said Territory directly or through Sub-agents together with the account of the moneys realized and the commission payable to the firm. Such account will be made on quarterly basis and the account will be sent to the Company within two months from the end of each quarter ending 31st March, 30th June, 30th September and 31st December each year.

4.1.8             The Firm shall remit the amount of the sale price of the Products sold during each quarter, less the commission payable to the Firm alongwith the statement of account aforementioned. Such account and payment will be subject to verification by the Company and if any mistakes are found they will be verified and settled by mutual consent.

4.1.9             The Firm shall not give any warranty as to quality of the Products sold to the Customers other than the warranty given by the Company.

4.1.10                       If the Firm receives any complaints regarding any defects in manufacture, the Firm shall intimate the same to the Company. If the defect is found genuine, the Firm can substitute another Product for the defective Product and the defective Product will be returned to the Company at the cost of the Company and the adjustment of the price thereof will be made in the accounts. However, no Product sold will be taken back after the guarantee period is over. [Are we selling the goods on guarantee]

4.1.11                       If any dispute arises with any customer or with the sub-agent of the Firm, the same will be communicated to the Company immediately.

4.1.12                       The Firm shall keep informed the Company about the market position of the sale of Products in general and of Products of the Company in Particular.

4.1.13                       The Firm shall maintain accounts of the sale of the Company’s Products as aforesaid and the same will be open for inspection by the Company whenever required.

4.1.14                       The Firm shall not hypothecate or pledge the Products supplied by the Company and otherwise raise any loan on the security of such Products.

4.1.15                       The Products will be sold on the trade mark or trade name of the Company and no change or tampering with the same will be made.

4.1.16                       In all advertisements made by the firm regarding the said sets, the Firm can mention its name as the Sole Selling Agents of the Company. [Can we say this]

4.1.17                       The Firm shall provide shops, godowns or storerooms for stocking the Products received from the Company and keep them safe and in good condition.

4.1.18                       If any suit or legal proceedings are taken in the said Territory to the knowledge or information of the Firm against the Company or the Firm or its sub agents, the Firm shall immediately furnish all information and papers relating thereto and available with the Firm to the Company.

4.2                        The Firm shall open a special Bank account in their name with any Bank and in which only the moneys received and spent under this contract shall be credited and debited. All payments to be made and expenses to be incurred will be drawn from such account as far as possible.

4.3                        The Firm shall not assign the benefits and rights under the agreement except by way of sub-agency to any other person without the consent of the Company. Similarly the Company will not appoint any agent for sale or to sell any set in the said state directly or without the consent of the Firm.

4.4                        The Firm agrees to assign on demand any improvements carried on by the Firm on the Company’s Products during the agency with the Company. The Firm also undertakes to sign any papers and do any acts that my be needed to secure the Company, its successors or assigns, any rights relating to such inventions an dimprovements.

 

 

ARTICLE 5

OBLIGATIONS OF THE COMPANY

 

5.1                The Company will use its best endeavours to supply to the Firm goods free of any defects and in conformity with specifications and terms of accepted order.

5.2                 The Firm shall get the Products supplied by the Company tested or repaired through the technicians or mechanic recognised by the Company in the Territory or elsewhere but in case such a technician or mechanic is not available the Company shall, whenever required by the Firm, send its own mechanic or technician for doing the work and his charges will be paid by the Company.

5.3                 If the Products manufactured by the Company undergo any    change in technique or design the firm will be entitled to return to the Company the old Products remaining unsold till the Company supplies new products in their place.

5.4                 The Company’s obligation is limited to replaying the items, which on examination shall be found to have a manufacturing or design defect, free of charge to the buyer/end customer during Warrantee period.

5.4.1         The Company shall not be responsible for the defects caused by Free Issue Material, supplied to the customer, and by the customer or the Firm to the Company, for assembly to or use with the Company’s Products.

 

ARTICLE 6

 

RIGHT TO CREATE SUB-AGENCY

 

6.1                The Firm shall be permitted to appoint sub-agents at different places in the said Territory on such terms and conditions as may be agreed upon between them but such agreements will be subject to the terms and conditions hereof. [Can we say this???]

6.2                The Firm shall NOT enter into such sub-agency agreements without obtaining aprior written consent of the Company.

6.3                 The Company will not be responsible for or concerned with the dealings between the Firm and its sub-agent.

6.4                 The Firm will continue to remain liable to account to the Company in respect of the dealings between the Company and the Firm.

6.5                The transport charges for carrying the Products from the shop or godown of the Firm to the shop or godown of any sub-agent will be borne by the Firm or as may be agreed between the Firm the sub-agent but the Company will not be liable for the same.

6.6                All persons employed by the Firm or its sub-agents in connection with operations under this Agreement shall be considered employees of the Firm or that of the sub-agents as the case may be only and shall in no way, either directly or indirectly, be considered employees of the Company. Any taxes or contributions levied by any governmental entity based upon the payment of or employed by the Firm, shall be the exclusive liability of the Firm and shall in no way be chargeable to the Company.

 

ARTICLE 7

 

COMMISSIONS

 

7.1                The Firm during the term of this agreement shall be entitled to receive a commission from the sale of the Company’s Product.  

7.2                The Company shall pay to the Firm a commission at the rate of……..percent on the sale of …………….sold by the Firm in the said Territory. [what is the structure of payment of commission]

7.3                Any commission to be received under this agreement shall not be credited to the Firms account on the Company’s Books until the purchaser has made settlement in full with the Company, either in cash or acceptable notes [specify the appropriate notes viz cheques/bank drafts/etc…..] If the settlement is made by [post dated cheques/buyers notes/et….pls specify any other] the Company may withhold payment of the commission of the Firm in part until the cheques are encashed or notes are paid etc.  [can we say this???]

7.4                The Firm’s account may be charged with an amount of any commission previously paid to the Firm or Credited to the Firm’s account towards the unpaid part of the purchase price of the Product or the unpaid part of any note given.

7.5                When the Company repossesses a product, the Firm shall receive commission only on the amount of money paid by the purchaser prior to repossession.

7.6                The Company shall have the right to fix the amount of discounts for products taken in exchange and a commission will not be paid on the amount so discounted.

7.7                 The Company agrees that if the Company receives any order for supply of the Product from any party from the said Territory directly, the same will be sent to the Firm for being complied with. The Company, however reserves the right to sell any Product to any particular person in that Territory as a special case.

7.8                 The cases wherein during negotiation with the buyer/end customer, the places great pressure in respect of the Product’s price, the Company may ask the Firm to reduce its commission suitably in order to stay competitive and to win the order. The Firm may agree to such reduction of commission after discussing the matter with the Company

7.9                Please describe the mode of payment

 

ARTICLE 8

 

CONTENTS OF ORDERS

 

8.1                 All orders for Company’s Product shall be taken on printed forms furnished by the Company and all such orders shall be sent to the Company immediately after being signed by Purchasers. The orders shall contain conditions of payments of every nature whatsoever between the parties to the sale, it being agreed that the Company shall not be responsible for promises made by the Firm which are not mentioned on the said order forms. The Firm shall strictly abide by the prices quoted on the said forms and shall not sell the Company’s product for more or less than the price list established by the Company.

8.2                 If the Company is compelled to make any payments to customers or incur any expense by reason of a violation of these requisites, then the amount of the expense may be charged to the Firm’s account.

8.3                 Orders taken by the Firm shall not be binding on the Company. Company reserves the right to reject any order when, in the judgment of the Company, the product ordered may not be suitable to the business of the customer.

 

 

ARTICLE 9

PRICE

 

9.1                 The Firm agrees to purchase from the Company and the Company agrees to sell to the Firm, during the continuation of this Agreement the Products as per the list prices prepared by the Company, as current, from time to time.

9.2                 Sales tax and all other taxes, levies, duties or charges not included in such prices of the Products shall be payable by the Firm, in addition to such list prices. [Is this agreeable]

9.3                 The Firm shall pay to the Company, as per the Company’s bills or invoices, the full purchase price of the Products purchased from the Company immediately against the railway receipts and /or motor transport receipts and /or on delivery of bills or invoices of the Company as required by the Company. [Is this agreeable]

9.4                 Without   prejudice to any of the rights and remedies of the Company against the Firm, the Company shall be entitled to receive and recover from the Firm, interest on any unpaid purchase price, or, part thereof as the case may be, from the date of the invoice or bill of the Company till payment at two per cent over the prevailing bank rate. Payment of interest shall however, not entitle the Firm to delay or postpone the payment of the purchase price or any part thereof.

 

Article 10

 

SECURITY DEPOSIT

 

10.1         The Firm shall deposit and keep deposited with the Company a sum of Rs_______ as security for the performance of this Agreement and the same shall be refundable to the Firm with interest on the termination or sooner determination of this Agreement as hereinafter subject to deduction of any amount which is payable by the Firm to the Company under or by virtue of these presents. 

 

10.2         The Company shall be entitled to appropriate from such security deposit, without reference to the Firm, any sum found due and payable by the Firm to the Company, which the Firm has failed to pay despite the Company giving 15 days’, written notice of such amounts being due and payable.

 

10.3         In the event of such Security Deposit amount being reduced by reason of such appropriation, the Firm shall forthwith on written intimation by the Company make good the amount so appropriated so as to keep the amount of such Security Deposit to its original level.

 

10.4         If the Firm fails to do so within 48 hours from the date of intimation, the Company shall be entitled to forthwith terminate this Agreement without giving any further notice to the Firm.

 

10.5         The Company shall be entitled to call upon the Firm at any time hereafter to increase the amount of Security Deposit to such amount (not exceeding_________________) as the Company may think fit and proper having regard to the increase in the off take of the Firm and, in such event, the Firm shall within 15 days from the date of such notice from the Company, deposit such further amount with the Company.

 

10.6         Failure on the part of the Firm to comply with the abovementioned condition shall entitle the Company to treat it as a breach of the terms of the Agreement and terminate this Agreement forthwith without giving any further notice to the Firm.

 

10.7         Without prejudice to any of the terms and conditions in this Agreement, it is also expressly agreed and declared that in the event of any breach of any of the terms and conditions mentioned herein by the Firm, the Company shall be entitled to forfeit the amount of such Security Deposit without prejudice to any of the other rights and /or remedies available to the Company against the Firm for any breach committed by it.  

 

ARTICLE 11

 

LIEN ON PRODUCTS:

 

In case of any dispute between the Company and the Firm, the Firm shall have no lien on the Products of the Company. The Firm cannot in any way appropriate the monies received on sale of Company’s Products towards its commission due or in dispute from the Company.

 

ARTICLE 12

 

FIRM NOT TO COMPETE

 

12.1         During the term of this Agreement, the Firm shall purchase Products from the Company only and shall not either directly or indirectly as an owner, partner, shareholder, officer, employee, consultant, or in any influential capacity, either purchase, sell or specify any product that is competitive, identical or similar with any Product offered by any other Company or competitor.

12.2        In consideration of the above the Company shall train the   personnel of the Firm and provide them with specialized know-how for effective promotion and distribution of the Products which shall include, but shall not be limited to, special training programmes for personnel, specialized training in the matter of selection and appointment of Retailers, artful display of the Products at the Retailers outlets, sales techniques specially evolved by the Company to promote the Products.

 

ARTICLE 13

 

TENURE

13.1       The Duration of this agreement shall be for a period of 5 years from the date hereof, subject to what is herein otherwise provided.

13.2       The Parties hereby expressly agree that on expiry of the period of one year from the date of commencement of this Agreement, the COMPANY shall review the performance with the AGENT, and if the same is found unsatisfactory, the Parties hereby agree to forthwith terminate this Agreement by mutual consent.

 

ARTICLE 14

 

RESERVATIONS

 

14.1       Nothing in this agreement shall constitute or be deemed to constitute a partnership between the parties hereto, or constitute or be deemed to constitute the Firm as Agent for any purpose other than those mentioned hereinabove, and the Agent shall have no authority or power to bind the Company or to contract in the name of the Company nor create any liability against the Company in any way or for any purpose.

14.2       Neither Party shall be responsible for the acts or defaults of the other or of its employees or representatives. It is clearly understood between the parties hereto, that the relationship inter-se between the Parties as constituted under this Agreement is that of a Principal and Agent and neither party shall be entitled to hold itself out a partner or……………of other.

 

 

 

ARTICLE 15

INTELLECTUAL PROPERTY RIGHTS

 

15.1       TRADE MARKS: It is hereby expressly agreed by and between the Parties hereto, that the Company shall permit the Firm to use its brand names, brand logos and any other intellectual property rights, as may be applicable, in respect of the Products to enable the AGENT to sell and/or market and/or promote the Products in the TERRITORY. The AGENT hereby covenants that it will protect, preserve and maintain brand names, brand logos and other intellectual property rights of the COMPANY in all possible manner at its own cost, and will not allow any third party/ entity/others to use the same unauthorisedly.  The AGENT will immediately bring to the notice of the COMPANY, any improper or wrongful use in the TERRITORY, of the COMPANY’s brand name, brand logos, trade marks, patents, designs, models or other similar industrial or commercial monopoly rights which come to their notice and will, in and about the execution of their duties, endeavour to use every effort to safeguard the intellectual property rights of the COMPANY and will assist the COMPANY in taking all steps to defend the rights of the COMPANY.

 

15.2       Copyright: The Firm acknowledges that brochures, marketing materials and instruction manuals shall be the sole copyright of the Company only.  If the Firm learns of any copyright violations by any third party, the Firm shall immediately report the same to the Company and cooperate with the Company to solve the problem.

 

15.3       The Firm shall not :

 

(i)                 use the trade marks, trade names, emblems, designs, label, packing material, sign, brochures, mailers of the Company except with the express written consent of the Company and in accordance with any directions given by the Company, in writing, in that regard;

(ii)              alter, secure, remove, conceal or otherwise interfere with any markings or name plates or other indications of the source of origin of the Products.

15.4   The Firm shall :

 

(i)                 promptly inform the Company of any actual or threatened infringement of the Product with respect to trade marks, trade names, patents or copyright within the Territory;

 

(ii)               co-operate fully with the Company and provide all assistance of which it is capable whenever the said dispute may arise whether during the terms of this Agreement or after its termination;

 

(iii)             upon termination of this Agreement immediately cease to describe themselves as agents of the Company and cease to use all such trade marks or trade names in any manner whatsoever, including without limitation on stationery or vehicles for which consent was granted and shall return to the Company or otherwise dispose of at the Company’s direction, free of any charge, all printed matter displaying such trade marks or trade names in the Firm’s possession.

 

ARTICLE 16

CONFIDENTIALITY

 

16.1       Both the Parties agree, that any price list, quotations, discounts, spare parts list, technical information including engineering and manufacturing know-how, data and designs, whether written or oral, or in the form of drawing or photographs or in any form or medium furnished by the COMPANY to the AGENT under this Agreement, shall be deemed to be proprietary/owned by the COMPANY and will be maintained in strict confidence by the AGENT, and shall not be disclosed to any other person and/or shall not be used by the AGENT without prior written consent of the COMPANY except for the purpose of this Agreement.

16.2       The AGENT shall not enter into any Agreement with any other party for the use of the aforesaid information.

16.3         The provisions of this clause shall survive the termination of this Agreement.

16.4       AGENT shall not make copies of Proprietary Information furnished by COMPANY for any purpose.  It may be made accessible to the personnel, suppliers and subcontractors of AGENT only in so far as it is required for such purpose, and AGENT shall enter into an agreement with each of such suppliers and subcontractors under which such supplier or subcontractor undertakes to keep confidential, and not to use for any other purpose, any Information disclosed to it by COMPANY and shall take such other steps as may be reasonably required to cause the personnel, suppliers and subcontractors of AGENT to safeguard the confidentiality of Information.

16.5       COMPANY shall always reserve the right to determine at its sole discretion whether it discloses any information to AGENT.  The parties hereby acknowledge and agree that a breach of the obligations hereunder by AGENT will cause loss and damage to COMPANY and that AGENT shall compensate COMPANY for any loss, incurred by AGENT as a result of the breach and take any and all appropriate measures to recover damage incurred by COMPANY as a result of such breach.

 

ARTICLE 17

CONSTITUTION OF THE FIRM

 

The Firm shall obtain the previous written consent of the Company to make any changes in the constitution of its firm.

 

 

ARTICLE 18

TERMINATION

 

18.1   Any party will be entitled to cancel this agreement by giving prior notice of atleast one month to the other party in any of the following events:

a.                 If the other party commits breach of any term of this agreement.

b.                 If the other party being the Company goes into voluntary liquidation or is ordered to be wound up by a court of law.

c.                  If the other party ceases to carry on the business of manufacturing the Products.

d.                 If the other Party is the Firm, the Firm being dissolved.

e.                 If any even happens which makes the performance of this agreement impossible by reason of any force majeure or otherwise.

f.                   If the Firm is guilty of any conduct which the Company feels prejudicial to the interest of the Company an din this matter the Board of Directors of the Company will be the sole judge.

 

18.2   On termination of this agreement for any reason the Firm shall return all the unsold Products of the Company to the Company and render account of the dealings since the settlement of the accounts from the last previous period till the cancellation of this agreement.

 

18.3       If the Firm is dissolved, the partners shall not assign the benefit of this agreement to any of the partners as a term of such dissolution, without the consent of the Company.

 

18.4       Upon termination of this Agreement, the AGENT shall, if required by the COMPANY, return to the COMPANY forthwith all price lists, quotations, spare parts list, technical particulars, catalogues and all other documents which the AGENT has received from the COMPANY, except those which have been already distributed/used in the normal course of trade.

 

18.5       Neither Party shall, by reason of the termination or non-renewal of this Agreement, be liable to the other for compensation, reimbursement or damages on account of the loss of prospective profits on anticipated sales, or on account of expenditures, investments, leases or commitments in connection with the business or goodwill of either Party or otherwise.

 

18.6       Not withstanding the termination of this Agreement, pursuant to what is stated hereinabove, this agreement shall be deemed to be in force only for the limited purposes of:

 

i)                   orders on hand and under execution as on date of termination of agreement;

ii)                 tender enquires for which a bid has been submitted, i.e., active tenders, to be decided / ordered, as on date of termination of Agreement;

iii)              tenders which have materialised or are under preparation as a result of considerable pre-tender efforts on part of the AGENT;

 

18.7   On termination of Agreement, the AGENT shall within a period of 30 days provide to the COMPANY a list of pending / current enquiries for tenders to which the aforementioned clause applies.  Only on the AGENT fulfilling all its obligations in respect of such tenders and/or enquires (pending or otherwise) and only on the COMPANY being satisfied in all respects regarding the said list, the COMPANY agrees to cover the AGENT.

 

ARTICLE 19

FORCE MAJEURE

 

19.1       Any delay or failure of performance by either Party to this Agreement shall not constitute default hereunder or give rise to any claims for damages against that Party, if and to the extent caused by force majeure or matters beyond reasonable control of such party including, but not limited to the acts of God, acts of Governmental authority, strikes, lockouts, trade disputes or other concerned act of workmen, fires, floods, severe draughts, explosion, ritos, war, break down, etc.

19.2       If the force majeure in question prevails for a continuous period in excess of thirty (30) days, the Parties shall enter into bonafide discussions with a view to assess its effects or to agreeing upon such alternative arrangements as may be fair and reasonable. Upon cessation of the cause or causes for delay or prevention, the party affected by the force majeure shall resume the performance of the contractual obligation(s)

 

ARTICLE 20

AMENDMENT

 

This Agreement may not be amended, changed or modified in any manner except by a written document executed by a duly authorised representative of both the Parties.

 

ARTICLE 21

UNENFORCEABILITY

Any provision of this Agreement, which is prohibited or unenforceable, shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.

 

ARTICLE 22

NOTICES

 

All notices required or permitted hereunder, shall be in writing, and shall be deemed duly served when personally delivered or sent by registered or certified mail, return receipt requested postage prepaid or by facsimile confirmed by letter as aforesaid

 

ARTICLE 23

SUBJECT HEADINGS

 

The headings to clauses contained in this Agreement are inserted for convenience only and they do not form part of or affect the interpretation of this Agreement.

 

 

ARTICLE 24

INDEMNITIES

 

The AGENT agrees, undertakes and confirms to indemnify and keep indemnified the COMPANY against all amounts, claims, demands, loss, damage, etc., that the COMPANY may incur or suffer or be put to, as a result of any wilful act or default or negligence on the part of the AGENT/its servants/employees/representatives or on any account whatsoever.

ARTICLE 24

WAIVER

 

The failure of either Party hereto, to enforce any of the provisions of this Agreement or any right or remedy conferred by law in a given circumstance, shall not be deemed a waiver of any such provision, right or remedy in perpetuam.

 

 

ARTICLE 25

ENTIRE AGREEMENT

 

This agreement embodies the entire agreement or understanding between the parties relating to the subject matter of the agreement and no other term, or promise or condition or obligation, oral or in writing shall be pleaded as agreed upon between the parties relating to this agreement.

 

ARTICLE 26

COMPLIANCE WITH LAWS

 

26.1       The Company shall endeavour to take all necessary steps to ensure that the Products comply with all applicable laws, rules and regulations in the Territory of the Firm. The Firm shall obtain all statutory licenses, permissions and approvals as may be necessary for sale of products in the territory, as also comply with all formalities necessary for importation of the said products. All formalities for export of the said Products shall be complied with by the Company.

 

26.2       The approval, if any, to be granted to this Agreement shall be deemed to form part of this agreement. Any term of this Agreement which is inconsistent with or contrary to any term or condition mentioned in the letter of approval, if any, shall be treated as void and of no effect.

ARTICLE 26

ARBITRATION

 

If any dispute arises between the Parties hereto, during the subsistence or thereafter, in   connection   with   validity, interpretation, implementation   or alleged material breach of any of the provisions of this Agreement or regarding any question including the question as to whether the termination of the Agreement by the Firm hereto has been legitimate, the Parties hereto shall endeavour   to settle   such   disputes amicably.  In case of failure of the Parties to settle such disputes within 30  (thirty) days, either party shall be entitled to refer the disputes (if legally possible) to an Arbitrator.  The arbitration shall be conducted by a sole Arbitrator mutually appointed, or in case of disagreement as to the appointment of a sole Arbitrator, by 3 (three) Arbitrators of which each Party shall appoint 1(one) Arbitrator, and the third Arbitrator shall be appointed by the two appointed Arbitrators.  The arbitration proceedings shall be conducted in Mumbai, and the same shall be governed by the provisions of the Indian Arbitration & Conciliation Act, 1996, or any statutory modification as may be then in force.

 

 

SCHEDULE I

 

The Products: -

a) Godrej ControlAiR™ Systems for Demand Side control of compressed air to provide energy saving & stable air pressure at the end use.

 

b) EnergAir Enercon systems for Supply Side management with intelligent Compressed Air System control for energy saving & automation at the generation.

 

 

SCHEDULE II

 

Areas where the Firm shall act as an agent for the Company which comprise of Coimbatore for Tamil Nadu, Kerala & Pondecherry regions

 

IN WITNESS WHEREOF the Parties hereto have executed this Agreement on the day and year first written above.

 

 

For and on behalf of

GODREJ & BOYCE MFG. CO. LTD., India

For and on behalf of

FLUID ZONE

 

 

Mr. H. N. Daruwalla

Vice President

Mr. K. N. K. Sundaram & Mr. P. C. Muthukumar

Partners