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英文合同5

2009-05-14 4页 doc 8KB 35阅读

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英文合同5 AGREEMENT Letter Agreement dated _________,_________,_________(M,D,Y) between AAA Corporation ("AAA") and BBB, Inc. ("BBB") as amended and restated _________,_________,_________(M,D,Y) WHEREAS, AAA, with its main office in _________, and BBB, with its ma...
英文合同5
AGREEMENT Letter Agreement dated _________,_________,_________(M,D,Y) between AAA Corporation ("AAA") and BBB, Inc. ("BBB") as amended and restated _________,_________,_________(M,D,Y) WHEREAS, AAA, with its main office in _________, and BBB, with its main office in _________, have worked together to obtain the benefits of significant sales of products under the White-Westinghouse brand to CCC Corporation ("CCC"); and WHEREAS, the distribution profits on the sales to CCC of the White-Westinghouse brand of appliances will all be received and recorded on the books of BBB (the "White-Westinghouse Profits"); and WHEREAS, the parties wish to provide explicitly for the calculation of the White-Westinghouse Profits, recognizing that BBB is presently warehousing White-Westinghouse product in the United States to facilitate their sale; NOW, THEREFORE, in consideration of AAA's marketing cooperation efforts, this Letter Agreement documents the obligation of BBB to pay a fee as described herein to AAA as compensation for its efforts on BBB's behalf in obtaining said White-Westinghouse Profits. 1.01 Fees. (a) BBB shall pay AAA a fee equal to fifty percent (50%) of said White-Westinghouse Profits (as such term is hereinafter defined) earned by BBB on the sale of any White-Westinghouse Product to CCC. The fee shall be paid, by wire transfer to AAA's bank account, not later than the forty-fifth (45th) day after the end of each calendar quarter on the transactions occurring within said quarter. (b) Not later than the 25th day of each calendar month, BBB shall provide to AAA a report of Sales (as such term is defined below) during the prior month, together with a calculation of said White-Westinghouse Profits, all in such detail as may reasonably be requested by AAA (each a "BBB Report"). (c) White-Westinghouse Profits earned by BBB on the sale of White-Westinghouse Products shall be determined by subtracting from Sales (x) the Cost of Sales on First Party Sales (as such terms are defined below) of the related products and (y) the Direct Expenses on First Party Sales and Third Party Sales (as such terms are defined below) relating thereto. (i) For the purposes of this Agreement, "Sales" shall mean the amount invoiced by BBB to CCC for the White-Westinghouse Products net of accepted returns and excluding all freight charges ("First Party Sales"); provided, however, in those cases in which CCC elects, pursuant to Section 7.1.2 of the CCC Agreement, to purchase CCC Products from "Third Party Manufacturers" on behalf of BBB, Sales shall be deemed to be equal to the difference between the BBB Payment and the TPM Payment (as each of such terms are defined in Section 7.1.3 of the CCC Agreement). (ii) For the purposes of this Agreement, Cost of Sales shall mean the FOB point of shipment invoice amount from the applicable vendor, plus, to the extent applicable, freight charges and duties. (iii) For the purposes of this Agreement: (A) Direct Expenses on First Party Sales shall be the total of: (x) three and one half percent (3.5%) of Sales plus (y) the sum of: (1) royalties owing on such Sales plus the minimum royalty owing, if any, regardless of Sales and (2) Detroit office selling expenses, provided, however, that if 75% or more of BBB's First Party Sales are FOB Hong Kong, said three-and-one half percent (3.5%) figure shall be reduced to two percent (2%); and (B) Direct Expenses on Third Party Sales shall consist only of royalties owing on such sales. 1.02 Right of Audit. AAA shall have the right, upon reasonable notice and at reasonable times, within six (6) months following its receipt of any BBB Report to have a review of the books and records of BBB with respect to the payments to be made for the period covered by such BBB Report, to confirm the accuracy of the BBB Report, provided, however, that such right of review shall not be exercisable more than two times per calendar year and provided further that if such review reveals an underpayment of more than 3.0% of the amount to which AAA is entitled hereunder, then AAA may have such review as often as it may reasonably deem necessary. Costs and expenses of such examinations shall be paid solely by AAA; provided, however, that if an examination reveals an underpayment to AAA of more than 3.0% of the amount to which AAA is entitled hereunder, then the reasonable costs and expenses of such examination shall be paid by BBB upon receiving an invoice therefor, with supporting documentation attached. It is specifically agreed that AAA may conduct such an examination only through a firm of nationally recognized independent accountants not regularly retained by BBB or AAA or their respective affiliates and mutually agreed on by AAA and BBB. If BBB and AAA cannot agree upon a firm of nationally recognized independent accountants, the firm shall be Price Waterhouse & Co., or any successor to Price Waterhouse & Co. If Price Waterhouse & Co. shall be acquired by, merge into or otherwise cease to be independent of a firm that is regularly retained by BBB or AAA, then, unless AAA and BBB mutually agree upon a successor independent firm, at the written request of either AAA or BBB made to the other, another national recognized firm that is not regularly retained by BBB or AAA shall be selected by the head of the Miami, Florida office of the American Arbitration Association. Such independent accountants shall: (i) confirm the First Party Sales and Third Party Sales and the Cost of Sales and (ii) shall have access to the books and records of BBB, but shall be obligated to keep confidential from AAA and its affiliates and all third parties, the names of BBB's manufacturing sources, the terms of purchase, unit prices and all other details available to such independent accountants concerning the Cost of Sales. The determination of such independent accounting firm shall be binding on both AAA and BBB. 1.03 Non-Compete. Neither AAA nor any Affiliate of AAA, including but not limited to Durable Electrical Metal Factory, Ltd., and any partnership or joint venture to which AAA is a party shall compete with BBB in selling White-Westinghouse Trademarked Products to CCC covered by the BBB/CCC Agreement. Any such competition shall be a breach of the BBB/AAA CCC Letter Agreement which shall entitle BBB to terminate the BBB/AAA CCC Letter Agreement by notice to AAA. 1.04 Term. The provisions of this Agreement with regard to sales to CCC shall not be cancelable during the term of that existing contract between BBB and CCC, including any extensions or modifications thereof. The term of the provisions of this Agreement with regard to sales to CCC shall coincide with the contract term as specified in said contract between BBB and CCC. 1.05 Jurisdiction. This Agreement shall be interpreted under the laws of the State of Delaware, without regard to its conflict of laws provisions. AAA Corporation BBB, Inc. By:_________ By:_________
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