Agreement
to Act as Technical or Management Adviser [CD1]
This Agreement is made at
…………... this ... day of ………….... between M/s. ABC Co. Ltd., a Company
registered under the Indian Companies Act, 1956, having its registered office
at ... hereinafter referred to as the Indian company of the One Part and M/s.
XYZ Co. Ltd., a Company Incorporated under the laws in force in... having its
registered office at ……………...... hereinafter referred to as the Foreign Company
of the Other Part.
Whereas the Indian
Company is carrying on the business of manufacturing …………..... and owns a large
factory (or factories) at ... ………….
And Whereas as the
manufacturing process In the Indian Company's factories is highly technical and
complicated and the production turnover of the Indian Company is very large and
requires also administrative skill, the Indian Company approached the Foreign
Company, who Is carrying on business at... as technical and management advisers
to different companies carrying on more or less similar business all over the
world. for collaboration to act as technical and management adviser.
And Whereas after some
negotiations the Foreign Company has agreed to act as the technical and management
advisers of the Indian Company on the following terms and conditions and it is
proposed to record the same in a formal agreement.
And Where as this
agreement has been approved by the Government of India and the Reserve Bank of
India on the terms and conditions a copy of which is hereto annexed.
Now It Is Agreed Between
The Parties Hereto As Follows. –
1.
The Indian Company hereby appoints the
Foreign Company as the technical and management adviser of the Indian Company.
2.
The Foreign Company agrees to depute Its
technical and management experts not exceeding ... in number fully qualified as
regards the business carried on by the Company to advise the India Company as
to the technical matters relating to the machinery installed by the Indian
Company in its factories at ... and relating to -the quality of production as
well as regarding the management of the factories.
3.
The Office of the said experts will be at
the registered office of the Indian Company at ... and the experts will attend
to the office work during the Company's working hours except when they are on a
visit to the factories.
4.
The Indian Company will arrange for
spacious residential accommodation of the experts befitting their position and
in a good locality of the city where the registered office of the Indian
Company Is situate at the cost of the Indian Company.
5.
The said experts will visit the factories
of the Indian Company as and when they think necessary or required but at least
once in a week and the Indian Company shall make arrangements for their
overnight stays at such place or places.
6.
The said experts will also visit the
factory or factories for giving advice and assistance whenever required by the
Indian Company or by the local manager of the factory.
7.
The experts will use and make available
all their expertise in carrying on the production in the said factories in an
efficient manner and also make all suggestions for the efficient management of
the factories.
8.
The Foreign Company will make available
all the know-how including all literature, formulae, drawings, and other
material to the said experts to enable them to advise the Indian Company
and to use their expert
knowledge in solving any problem as to the running of the machinery and plant
and as to the manufacture of the products.
9.
Apart from the expenses required to be
incurred for the residence and household purposes of the said experts and their
family members namely wives and children and their travelling expenses, the
Indian Company shall pay to the Foreign Company for the services to be rendered
by the Company and Its experts as follows
X X X X X
The personal expenses of
the experts and their families for food and other normal amenities shall not,
however, exceed Rs. ... per month per expert. All payments to be made by the
Indian Company to the Foreign Company and its experts will be subject to the
approval of the Government of India and/or Reserved Bank of India and will he
made as stipulated by the said authorities.
10. If
the Indian Company feel that the services rendered by the Foreign Company and
Its experts are not satisfactory or necessary, the Indian Company will have the
right to cancel this agreement by giving to the Foreign Company three months'
prior notice to that effect.
11. During
the period of this agreement the experts deputed by the Foreign Company will
not give any advice or other help or guidance to any other Company or person in
India.
12. The
experts deputed by the Foreign Company will not be treated as the employees of
the Indian Company and will not be entitled to any of the benefits given to the
regular employees of the Indian Company. However the experts will be given
off-time or casual leave for such days and at such times as may be agreed upon
between the expert and the Managing Director of the Indian Company from time to
time.
13. The
Letter of Approval issued by the Govt. of India herein recited and hereto
annexed shall be deemed to form part of this Agreement and if any term of this
agreement is found inconsistent with or contrary to any term and/or condition
contained in the said letter, the same will be treated as null and void.
14. The
duration of this agreement will be... months, subject to what Is herein
otherwise provided. The said period may be extended by mutual consent.
15. This
agreement will be treated as terminated on the happening of any of the events
below mentioned .
i.
If any party hereto commits breach of any
provisions of this agreement and the party who is alleged to have committed
breach is served with a notice by the other party three months prior to the
intended date of termination by the other party and the former party has failed
to amend the breach within the said period.
ii.
If any event happens which will make the
performance of this agreement impossible including any force majeure event.
iii.
If either the Indian Company or the
Foreign Company goes into either voluntary or compulsory liquidation according
to or under the law by which it is governed.
iv.
If the parties hereto mutually agree to
terminate this Agreement.
16. All
sanctions, approvals. permissions, licences and other requirements of the
Government of India and of any statutory authorities required for giving effect
to all the terms and conditions of this agreement shall be obtained by the
Indian Company.
17. In
the event of any dispute or difference arising between the parties hereto as to
the rights and obligations under this agreement or as to any claim. monetary or
otherwise of one party against the other or as to the interpretation and effect
of any terms and conditions of this agreement such dispute or difference shall
be referred to Arbitration of a common Arbitrator if agreed upon, otherwise to
two or more Arbitrators, one to be appointed by each of the parties to this
agreement and such Arbitrator shall be governed by the Indian Arbitration &
Conciliation Act, 1940. The venue for such Arbitration shall be …………..... in
India.
18. The
validity of this agreement and the effect or meaning of the term, hereof will
be decided according to the Indian Law.
19. Any
communication by one party to the other shall he made by registered post
through airmail, with acknowledgement due or by telex o fax or cable. In case
the communication is made by telex or fax or cable the same will be
subsequently but immediately thereafter confirmed b, written communication sent
by registered post as aforesaid. Any evidence showing the communication was
posted or telex, fax or cable communication was made, will be sufficient to
prove the posting or sending the communication.
20. In
this agreement the expression 'know-how' shall include technical information
such as inventories formulae processes, engineering and manufacturing skill,
scientific data, calculations,' specifications, drawings standards, sketches
and all other relevant information and knowledge.
In Witness Whereof the
parties have put their respective seals the day and year first hereinabove
written.
The common seal of M/s.
ABC Co. Ltd., is hereunto affixed pursuant to the resolution of the Board of
Directors dated ………….... in the presence of Mr…………………...,a Director duly
authorised in that behalf The common seal of M/s. XYZ & Co. Ltd., is
hereunto affixed pursuant to the resolution of the Board of Directors
dated…………….. in the presence of Mr. ……………... a Director, duly authorised In
that behalf.
Witnesses;
1.
2.
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