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NON-EXCLUSIVE GLOBALINK MEMBER AGENCY AGREEMENT |
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This Agency Agreement (the “Agreement”),
effective as of ___________, 2005, is made by
and between_______________________,a corporation
established in ____________________ having its
principal place of business at
____________________________________,
hereinafter (“Agent”) and GLNK, Inc, known as
the Globalink Network, hereinafter
(“Globalink”) a corporation, formed as a network
of global forwarding/logistics companies,
established in the State of Texas, and having
its principal place of business at 5715
Broadway, San Antonio, Texas, USA 78209, on its own
behalf and on behalf of its members as third
party beneficiaries of this agreement.
Whereas, Globalink is an organization comprised
of members that are companies located throughout
the world in the business of providing logistics
services globally, including air and ocean
forwarding, the arranging of surface
transportation, clearing of cargo through local
Customs offices, delivery of cargo, and other
services generally associated with
forwarding/logistics services;
Whereas, Globalink requires all members of
Globalink, as a condition of membership, to
enter this agency agreement;
Whereas, As members of Globalink, one of the
conditions of memberships is to act as agents
for each other in the respective countries and
office locations of each of the members in order
to accomplish the services offered to shipper
customers, including acting as delivery agents,
and other services generally associated with
transportation intermediaries, including, but
not limited to sales services, and other
services which may be requested by members, and
agreed to by members on a case by case basis;
Whereas, Agent is a member of Globalink, and
acknowledges that as a condition of continued
membership in Globalink, Agent agrees that by
entering this agreement with Globalink, it
accepts that the terms and conditions of this
Agreement shall be binding in agency
relationships as provided herein with other
members of Globalink, and acknowledges that no
further agreement is necessary or will be
effective, other than the terms herein, and said
terms shall be in full force and effect, while
Agent remains a member, as if Agent had entered
this agreement directly with each member
individually;
Therefore, as a condition of membership in
Globalink, and other valuable consideration, the
Agent, and Globalink, on its own behalf on
behalf of its members as third party
beneficiaries of this agreement, agree to the
following:
ARTICLE 1 –
APPOINTMENT
Agent agrees that pursuant to this agreement
Agent accepts its appointment, as have all other
members of Globalink, to mutually appoint and
act as each other’s general, non-exclusive sales
and break-bulk and delivery agent in the
geographic region in which each member is
located, hereinafter referred to as the
“Territory”. Agent agrees that it will serve as
such agent in the Territory and perform all
duties and responsibilities hereinafter defined
in an appropriate, efficient, and lawful manner.
Agent agrees that its branch offices (if
applicable) shall be notified of this agreement
and shall also abide by this Agreement. |
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ARTICLE 2
–
INTERPRETATION |
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In this
Agreement, use of the singular includes
the plural (and vice versa), and reference
to any gender includes all genders. |
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Any reference
to a person shall include a firm or
limited company. |
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Any reference
to a clause, schedule or appendix is a
reference to that clause, schedule or
appendix to this Agreement. |
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The
annexed Appendix forms part of this
Agreement, and a reference to “this
Agreement” includes a reference to the
Appendix. |
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ARTICLE 3 –
ACTIVITIES
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3.1 |
Agent shall employ sufficient
personnel and adopt adequate and best
practiced procedures to enable each other to
provide superior quality services to the
other, preferably incorporating the ISO 9000
or 9002 standard. |
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3.2 |
Each Party shall follow the written
instructions of the other party with regards
to each shipment. The instructions should
include appropriate costs, fees possibly
agreed at the time of shipment, and other
pertinent information. |
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3.3 |
Master airwaybills or ocean bills of lading
shall be sent on a “prepaid” basis unless
the Parties agree otherwise. The
international manifest of shipments in the
consolidation and all relevant customs
documents shall be attached to the master
airwaybill or ocean bills of lading. |
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3.4 |
Neither Party shall change the contents of a
bill of lading or Airwaybill issued by the
other Party in any way without written
authorization of the issuing office.
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3.5 |
Each Party shall promptly send to the other
Party a pre-alert via Internet e-mail or fax
to cover every shipment. This pre-alert
shall contain at least the following
information: Sending agent’s reference
number, MAWB or B/L number, HAWB or TB/L,
shipping date, flight number, total number
of pieces, weight, shipper’s and consignee’s
name, port of departure, port of arrival,
ETD and ETA. |
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3.6 |
On
receipt of shipment the Receiving Agent
shall make certain that freight and
documentation are in good order and if
shortages or damages are noticed, the
Receiving Agent shall endorse the carrier’s
receipt accordingly and immediately notify
the Sending Agent. Moreover, the Receiving
Agent shall file a preliminary notice of
claim against the carrier to protect the
rights of the Sending Agent and handle the
claim according to Article 7 of this
Agreement. |
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3.7 |
For
any house airway bill or TB/L consigned to
the “Bank”, the Receiving Agent must obtain
a Bank Release confirmation in writing
and/or the Bank endorsement on the house
airway bill, prior to releasing the
documents to the final consignee. Failure to
comply with the aforementioned handling
procedure will result in the Receiving Agent
bearing the full responsibility for any
claim made by the Shipper and/or the Sending
Agent at the origin. |
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3.8 |
On receipt of shipment, the Receiving Agent
shall immediately contact the ultimate
consignee or its appointed broker
with[BS5] in 24 hours by telephone, fax,
e-mail or other means. Both Sending and
Receiving agents shall promptly reply to all
communications and to particular requests
for specific information within 24 hours
from receipt. Information regarding the
delivery of the documents to the consignee’s
broker, or in the case of the brokerage
service being provided by the Receiving
Agent must be communicated to the Sending
Agent within 24 hours. |
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The delivery of the shipment to the ultimate
consignee must be reported as a P.O.D. with
the names of the signing parties, date and
time, within 24 hours. In cases whereupon
receipt remarks have been made in respect of
shortage or damage, and this information is
to be immediately reported to the Sending
Agent. |
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3.9 |
If the consignee(s) does/do not respond to
arrival notice(s) within 7 days from the
arrival date, then the Receiving Agent is
obligated to promptly inform the Sending
Agent hereof. And the Sending Agent must
provide instructions to the Receiving Agent
as to how to proceed within 24 hours. The
Sending Agent shall be liable for any costs
incurred by the Receiving Agent in
connection with the Sending Agent’s
instructions regarding the disposition of
the shipment.[BS6] |
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3.10 |
If
the consignee or the consignee’s appointed
representative does not take immediate
delivery of the shipment or refuses to pay
the collect charges involved, the Receiving
Agent shall immediately notify the Sending
Agent by telephone, fax or e-mail and shall
act in accordance with the Sending Agent’s
instructions. In the case described here,
the Sending agent would be liable for the
any or all of the collect charges not paid
by the consignee. |
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3.11 |
In
cases where the Sending Agent requires the
Receiving Agent to collect payment for the
goods on behalf of the shipper, the
Receiving Agent agrees to be responsible for
collecting the full C.O.D. amount. The
Receiving Agent will be responsible to
collect, prior to releasing the cargo, a
bank draft (Cashier’s check) made out in
name of the vendor in the amount and
currency shown on the commercial invoice.
The bank draft will be sent back to the
Sending Agent. |
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Such C.O.D. shipments must be notified by
the Sending Agent to the Receiving Agent
prior shipment (departure at origin) takes
place. Failure to collect the bank draft
(Cashier’s check), will result in the
Receiving Agent bearing the full
responsibility for the full amount of the
vendor’s commercial invoice and for any
claim made by the shipper and/or the
handling agent at the origin station.
Receiving agent’s Company check, for payment
of C.O.D. is not acceptable, unless agreed
otherwise between either Party or Shipper.
The Receiving Agent, at its own discretion,
will be entitled to charge to the Sending
Agent a C.O.D. administrative fee for the
service rendered. Such service fee should be
discussed and agreed upon between the
Parties, prior to shipment. |
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3.12 |
In the case of shipments forwarded on a
“collect basis,” the Receiving Agent shall
be responsible for collecting such charges
prior to making the final delivery. However,
should the Receiving Agent decide to grant
credit facilities to the consignee or the
consignee’s appointed representative, the
granting of such credit facilities shall be
entirely the responsibility and be at the
risk of the Receiving Agent. The bank
charges for remitting payment back to the
Sending Agent should be for the account of
the Sending agent. |
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3.13 |
Monies collected by the Receiving Agent on
behalf of the Sending Agent shall remain the
property of the Sending Agent. |
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3.14 |
In the United States trade lanes Agent shall
only issue its own ocean house bill of
lading if it is either a licensed or
registered non-vessel operating common
carrier (“NVOCC”), has appropriate bond(s)
on file with the Federal Maritime Commission
(“FMC”), and electronically publishes rates
and charges pursuant to the shipping statues
and regulations of the United States. Agents
may issue ocean house bill of ladings of
other members in the United States trade
lanes, but only if those members are
licensed or registered with the FMC, have
appropriate bonds, and publish tariffs in
accordance with U.S. laws. Additionally, an
Agent must have written authority to utilize
the ocean house bill of another member. |
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3.15 |
Agent agrees that it will indemnify
Globalink, and any members of Globalink with
regard to the usage of another member’s
house bill of lading as noted herein below
in Article 13. |
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ARTICLE 4 – SALES |
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4.1 |
Both
Parties will make all possible efforts to
increase both air and ocean cargo traffic
between their respective markets by: |
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a. |
Employing sufficient sales and marketing
staff to generate business and make
sales calls. |
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b. |
Regularly calling up existing and
potential clients. |
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c. |
Acting and replying to all qualified
[Mike14] sales lead within 3 days. |
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d. |
A lead is considered qualified when the
party supplying the lead can provide a |
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company name, a contact name, email or
phone contact information, and
background as to the opportunity
associated with the lead. |
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f. |
Personally representing routing
requests, where geographically possible,
within 48 hours. |
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g. |
Formulating and regularly updating
marketing, service and pricing changes
into respective country databases. |
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h. |
Monitoring competition service standards
and rates and advising of changes where
known. |
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4.2 |
Agent
agrees to adapt their rates structure to
meet competition, provided the profit is
maintained at a level acceptable by
Globalink Members. Agent agrees to
coordinate negotiations with carriers
jointly or separately to achieve greater
service levels and lower buying rates. |
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ARTICLE 5 – PROFIT SPLIT – BREAK BULK
FEES
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5.1 |
A profit split on a 50-50 basis shall be
granted by either Party for business jointly
generated. Prepaid shipments, generated by
the Sending Agent, will not be subject to
any split profit. However, prepaid shipments
generated by joint sales activity, will be
subject to a profit-sharing. Agent and
Globalink Members shall thus share gross
profit on direct and consolidated shipments
and on prepaid shipments jointly secured to
and from either country. No break bulk fee
shall be charged by either Party. |
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5.2 |
The Parties shall determine the amount of
profit derived from each shipment by
deducting from the total revenue, the local
costs and freight (ocean or air) costs,
taking into account all legal commissions,
rebates and incentives. |
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5.4 |
Warehousing and containerization charges for
export shipments are to be borne by the
Sending Agent. Importing expenses for
de-containerization, warehousing and break
bulk are to borne by Receiving Agent. These
expenses are excluded from the profit split
calculation unless otherwise agreed between
the parties. |
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5.5 |
Profit split will be settled by issue of
credit note on a shipment-by-shipment basis
or by a consolidated statement/credit note
issued each month to each Party’s corporate
office. The issuance of a profit split is
the obligation of the Sending Agent. Credit
notes for profit splits are to be issued no
later than 7 days after the date of
shipment. Either party shall be entitled to
offset any undisputed sums due from one
Party to the other Party. |
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ARTICLES 6 – COMMUNICATION |
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6.1 |
Each Party will be responsible for its own
costs in respect of communication costs
whether related to sales, operations, and
performance responsibilities within the
Agreement. |
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6.2 |
No information whatsoever in relation to the
cooperation between Agent and Globalink
Members– sales and operational – shall be
given to a third party, other than that
which may be required by a statutory body,
without both parties written consent. |
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6.3 |
Both Parties will exchange details of
operational procedures, names of key
personnel, tariffs and any further
information, which are deemed to be useful
to maintain and increase mutual cooperation. |
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ARTICLE 7 – CARGO CLAIMS |
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7.1 |
If any notice, information or claim is
received by either Party ( or its servants
or agents ) that any shipment has been
damaged, lost, short-landed or in any way
affected, which may give rise to claims or
other liabilities, then the Receiving Agent
shall notify ( or procure that its servants
or agent notifies ) the Sending Agent within
24 hours. |
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7.2 |
No Party shall admit liability on behalf of
the other Party without the written approval
of that Party. Each Party shall procure that
its servants and agents do not admit
liability in any circumstance. |
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ARTICLE 8 –
ACCOUNTING
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8.1 |
The Parties shall keep accurate and separate
records and accounts for the shipments
transacted under this Agreement, and, if
required to do so by the other Party, then
each Party shall provide a copy of such
records and accounts to the other Party. |
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8.2 |
Settlement of all invoices shall be made in
United States Dollars (“USD”) wherever
possible, or in another currency with the
prior mutual written agreement by both
Parties. The amount must be paid in the
agreed currency, free of bank commissions.
The rate of exchange shall be the rate of
exchange on the date of the invoice as
published by the currency calculator on
www.bloomberg.com, or any other
internationally recognized currency
converter, which ever is accurate an
acceptable in international commerce. |
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8.3 |
Members agreed that ocean shipments are to
be paid 45 days from invoice date, and all
other non-disputed invoices are to paid
within 30 days of invoice date. |
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8.4 |
By the 7th of each calendar month, the
Parties shall send their respective
statements of accounts, showing all
receivable and payable transfers between
them for the preceding calendar month. By
the 15th of each calendar month, the Parties
shall have their accounts reconciled and
approved by the other Party for payment.
Payment shall be affected by the following
last working day of each calendar month.
Should the aggregate of the offset amount be
less than the equivalent of USD 500, then
that amount shall be rolled-over to the
following month without interest. An
interest of 1% per month and any other
charges due to the devaluation of the
respective country’s currency will be
imposed thereon by the creditor at its own
discretion for amounts above US$500. |
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8.5 |
Each Party will set up a credit limit of USD
10,000. Should the credit limit be reached
before the credit term period agreed upon,
payment shall be effected earlier and upon
request of the creditor. It will be at
either Party’s discretion to lower or raise
such credit limit. |
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8.6 |
Both Parties agree to supply each other with
a credit note for profit share supported by
a summary detail. Single credit note on a
per shipment basis is allowed. Freight bill
for the total freight charges deducted from
the credit amount due to the agent for
profit share in the form of “net billing”,
is also allowed. |
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8.7 |
Any disputed invoices should be discussed
and settled in 10 days. If a settlement can
not be reached, the dispute is then
submitted to the binding arbitration
agreement that has been executed by both
parties, and attached hereto as “Attachment
A.” |
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8.8 |
Notwithstanding anything herein contained,
the Parties acknowledge that when one agent
is collecting money on behalf of the other,
then it is acting purely in a fiduciary
capacity. |
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8.9 |
Members agree that the originating party
shall pay their full bank charges associated
with the wire transfer of funds, and the
receiving party shall pay their bank charges
for receiving wire transfers. This applies
to the payment of Globalink invoices or
charges as well. |
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ARTICLE 9 – CONDITIONS
The Parties acknowledge that generally each
Party will operate in accordance to the Standard
Trading conditions applicable to their area of
operation, or international standard trading and
banking conditions and regulations governed by
IATA, FIATA and the WARSAW CONVENTION and all
applicable local government laws in either
country.
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ARTICLES 10 –
ARBITRATION |
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10.1
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Any
controversy or claim arising out of or relating
to this agreement, or any breach thereof, shall
be settled by between the members, or, shall be
settled between the members after having
requested an opinion from the Globalink Advisory
board and if still unsettled in accordance with
the Rules of Binding Arbitration, attached
hereto as Attachment A, and incorporated hereto
by reference, and are considered by the parties
a material part of this agreement. Judgment upon
an arbitration award may be entered in any court
having competent jurisdiction thereof. Agent
represents that it has read Attachment A and
acknowledges assent to the terms contained in
Attachment A by affixing its signature or
initials thereto. |
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ARTICLES 11 –
AMENDMENTS-DURATION-TERMINATION OF THE AGREEMENT
NOTICES
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11.1 |
This Agreement will be valid on a
NON-EXCLUSIVE basis as from the date of this
Agreement for an indefinite period of time
unless conditions in the termination clause
are applicable. |
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11.2 |
This Agreement can be terminated by virtue
of violation of any term of this Agreement,
by virtue of bankruptcy, insolvency, or
change of ownership not acceptable to the
other Party, or by committing a negligent
act or omission, whether intentional or not,
which constitutes a breach of this
Agreement, or by giving notice of
termination in writing and giving the other
Party 30 days’ written notice. This is to be
sent by registered mail and fax
transmission. If this Agreement is
terminated for any reason whatsoever, then
each Party shall pay to the other Party all
amounts accrued, due and unpaid as at the
date of the termination without prejudice to
any right to claim for actions or omissions
that give rise to termination of this
Agreement. |
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11.3 |
This Agreement may not be amended or
modified in any way except by mutual
agreement, in writing, signed by both
Parties. Unless otherwise agreed, any notice
under this Agreement shall be sufficient if
sent by registered letter or by cable or
fax. |
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ARTICLE 12
CONFIDENTIALITY
During the period
of this Agreement and any time thereafter,
either Party shall not communicate to any third
party the terms of this Agreement or disclose
any information received or learned in
connection with this Agreement.
This Agreement should be executed in 2
counterparts and each shall constitute an
original and each Party hereby acknowledges
having received 1 original copy for safekeeping.
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ARTICLE 13 INDEMNIFICATION |
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13.1 |
Agent agrees to indemnify Globalink, and its
members as third party beneficiaries of this
agreement (collectively herein as “Globalink
and members”), against any and all
liability, loss, damages, costs, claims,
fines, penalties, and/or expenses, including
but not limited to attorney’s fees, which
Globalink and members may hereafter incur,
suffer, or be required to pay by reason of
any claims by any private party, court, or
government agency arising from any activity
directly or indirectly attributable to
Agent, including, but not limited, to the
use of a member’s house bill of lading. In
the event that any action, suit, or
proceeding is brought against Globalink or
its members, by any court, government
agency, or private party, Agent at its own
expense, shall defend against such action
and take all steps as may be necessary or
proper to prevent the obtaining of a
judgment and/or order against Globalink and
its members. |
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13.2 |
In the event that Globalink or its member(s)
are required to pay any fines, penalties,
damages, or other sums related to any
activity directly or indirectly attributable
to Agent, including, but not limited, to the
use of a member’s house bill of lading,
Agent agrees to indemnify Globalink and
member(s) for any such amount that Globalink
and member(s) may be required to pay,
together with reasonable expenses, including
attorney’s fees, incurred by Globalink and
member(s) in connection with defending any
claim or legal action and/or in obtaining
reimbursement from Agent. |
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13. 3 |
Agent agrees to notify Globalink and
member(s) in writing, by certified mail sent
to Globalink’s address as stated in this
agreement, of any claims made against Agent
on the obligations against which Agent has
indemnified Globalink and member(s) herein. |
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In
witness thereof, the Parties hereto have entered
into this Agreement on the date and the year
written hereunder. |
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COMPANY NAME: ________________________ |
COMPANY NAME: GLNK, Inc. |
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PLACE: ________________________________
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PLACE: San Antonio, Texas, USA |
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VALIDITY: UNLIMITED |
VALIDITY: UNLIMITED |
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Signed by: |
Signed by: |
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GLNK, INC. |
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5715 Broadway |
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San Antonio, Texas 78209 |
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__________________________________ |
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Signature |
Signature |
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Name: |
Name: William J Siemens |
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Title: |
Title: President &
CEO |
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Date: |
Date: May 25, 2004 |
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