This agency agreement has been signed between ESAS ORGANIZASYON TURIZM TICARET VE LTD.STI. located at the address of Trabzon Hava Limanı Ic Hatlar Gelen Yolcu Terminali No: 10 Konaklar Mevkii Pelitli Mah. Ortahisar Trabzon- TURKEY (hereafter will be referred as “COMPANY”) and, ............. ............................................, located at the address of ........................ (hereafter will be referred as “AGENCY”). According to this, the COMPANY wishes to have an agency for the region of .......................... and AGENCY accepts to work as agency of the COMPANY in accordance with the terms and conditions, specified in this agreement. This agreement contains following terms and conditions;
ARTICLE- 1 DEFINITIONS
ARTICLE 2- SUBJECT OF THE AGREEMENT
2.1 The COMPANY hereby appoints ……………………… as its Agency in the region of …………………… . Agency hereby states, accepts and undertakes to market, sell, promote, import and distribute the products of the COMPANY, to have them registered in the name of the COMPANY in the region in accordance with the principles, specified in this agreement.
2.2 Unless otherwise is specified in writing by the COMPANY, Agency can’t sell and export the products of the company in any place out of the boundaries of the region.
2.3 Agency will buy the products from the COMPANY in accordance with terms and conditions, determined in the agreement for the purpose of selling and distributing them in the region.
2.4 This agreement doesn’t give the AGENCY a monopoly right in the region. The COMPANY has the right to establish new agencies, commission agencies, dealerships or to make partnerships or to open stores in its name of in third persons’ name in the region. The COMPANY can wholly or partly transfer its rights, arising from the agreement to the third persons.
Agency will represent the COMPANY in the region in accordance with the following rights and liabilities of both parties;
3.1 Agency will make all applications related to the clearing the promotion samples of the products and their registration, obtain relevant permissions in the name of the company, sign and submit respective documents in this respect..
3.2 Agency will realize marketing, promoting and selling of the products within frame of the instructions, it will receive from the COMPANY.
3.3 Agency will organize and execute marketing and promoting of the products under the COMPANY name and trade mark in the region.
3.4 Agency will give copies of all registration, patent certificates, permissions and other similar documents, that will be obtained in the region, to the COMPANY.
3.5 Agency will be entitled to order any tour, transfer, hotel, air ticket and rent a car service from amongst the products subject to this agreement, that will be produced by Company or others in written to the company provided that it will remain under the conditions, that will be defined by COMPANY. Agency is obliged to purchase 50 % of the programs, that are specified in the request form. COMPANY has the right to sell or not to any commodity at totally its own discretion.
3.6 The COMPANY will deliver the programs, requested by the Agency on the dates of …………………………. in the format, which will be agreed upon by the parties.
3.7 Agency is obliged to review the programs, it will purchase from COMPANY in order to check whether they have been prepared according to its request or not, to optimize them, to necessary information flow for effective marketing and sales methods, inform its requests to the company in written. Otherwise, the programs are considered to be accepted as they are. In case the tourism program isn’t adequate, Agency is obliged to warn the COMPANY by serving a written notice and ask for correction after the COMPANY accepts the notices. COMPANY will deliver the respective program to the Agency in the requested within 5 days following the written correction request, made by Agency.
3.8 Agency is required to have sufficient material, hardware, a computerized accounting system, an e-mail communication system and an office, which are essential for purchasing and classification of the products.
3.9 COMPANY will have the right to audit the application of this agreement: In this context, COMPANY is entitled to control the sales prices and conditions, customer relations, commercial and accounting books of the Agency, that contains sales and marketing programs of its products.
3.10 Agency purchases the programs only from the COMPANY and can’t purchase the same and/or similar products from other sources without a written permission of the COMPANY.
3.11 Agency will inform the product codes, barcode numbers, whose sales have been realized and monthly sales report, which contains retail sales amounts of every month, latest until the 7th of the following month.
3.12 Agency can neither establish nor accept any mortgages, liens, ancillary injunction on the programs, that will be delivered to it, party or wholly in the favour of third parties.
ARTICLE – 4 IMPORTATION AND SALE OF THE PRODUCTS
4.1 Agency will sell and distribute the products of the COMPANY in the region. Apart from that, the Agency will not change any trade mark on the products or in their packing under any circumstances and will not make any changes on them without written permission of the COMPANY. The Agency will not be involved in any actions that will affect the trade mark of the COMPANY negatively.
4.2 Agency hereby accepts that all kind of saving and rights, such as patents, trade mark, trade title, royalties, models belong to the COMPANY. In case the trade mark of ………………….. is violated and imitated in any manner during the period of this agreement, Agency will immediately inform the COMPANY and carry out all legal actions in the name of COMPANY if it is requested by the COMPANY.
4.3 Agency hereby accepts and states to purchase tour, transfer, rent a car and air ticket from the COMPANY in the amount of ………………………………………………………… per year during the agreement period. This amount will be determined every year unilaterally by the COMPANY as not less than the amount of the previous year. Agency hereby accepts, states and undertakes to purchase the minimum amount commodity, which will be unilaterally determined by COMPANY. In case this amount is not accepted by the Agency, the income loss, which will occur for this reason, will be compensated separately from the Agency.
4.4 The COMPANY has unilaterally the right to change the purchasing conditions of the aforesaid commodity wholly or partly; establish new conditions. Agency hereby accepts, states and undertakes that it will comply with the amended or newly established conditions by the COMPANY.
4.5 Agency will pay the total cost of the programs, which it will purchase during the period of this agreement, in accordance with the payment principle and terms, specified in the payment protocol.
4.6 Agency will pay the expenses of clearing from the customs, transporting, storing, insuring and delivery.
ARTICLE 5- STORE DECORATION
5.1 Agency is obliged to present the title deed or rental agreement of the store, which will be determined by the COMPANY, to the COMPANY. The rent of the company, contribution to the building expenses and costs related to the water, electricity, telephone and others, including all kind of taxes and duties belong to the Agency.
ARTICLE 6- CONFIDENTIALITY
Agency hereby accepts, states and undertakes not to disclose the technical, marketing/manufacturing methods, trade secrets and other information, it will learn and possess with the application of this agreement to the third persons in any manner. Agency hereby states and accepts that it will ensure all its employees, consultants and others, serving or working with it to comply with this confidentiality liability and this confidential liability will survive as it is after this agreement is expired or terminated for any reason.
ARTICLE 7- ASSIGNMENT
Agency will not be able to transfer and assign its liabilities and rights partly or wholly without an explicit and written consent of the COMPANY. Any transfer or assignment, which violates this provision, is considered void.
ARTICLE 8- FORCE MAJEURE
In case of force majeure circumstances, such as natural disasters, war, mobilization, fire, strike lock out, government decisions, etc. which are beyond control of the parties and stop the activities of the parties wholly or partly, the parties will not be held responsible from their liabilities under this agreement. The non-liability of the parties is restricted with the continuation of these circumstances only. The emerging and existing of the force majeure circumstances will be informed in written manner and evidenced with official documents.
ARTICLE 9- PERIOD
This agreement is valid for …… year, that will follow the date of signature of this agreement. This agreement will be automatically extended for one year in case it isn’t terminated by the parties as defined in article no 10 of this agreement and the conditions and terms of the new period will be unilaterally determined by the COMPANY. Agency hereby accepts this condition in advance.
ARTICLE 10- EXPIRATION, TERMINATON OF AGREEMENT, BANKRUPTCY
10.1 In case Agency fails to comply with any provisions of this agreement or act contrary against them; it can’t achieve a reasonable turn over (which can be calculated according to demographic and social economic data of the region and by reviewing the other agencies’ performance by COMPANY) for a subsequent …….. months following the date of signing of this agreement or at any time during the agreement period; it is determined that the representations and warrants, made under this agreement, don’t reflect the truth, COMPANY can immediately terminate this agreement prior to the expiration date without complying with the notification conditions, stated in article 10.1. In the event of such kind of termination, the Agency will still be responsible from its liabilities, which have been emerged as a result of the actions, made prior to the termination . Under these circumstances, COMPANY will have the right to collect all damages and losses, arising or will arise from this agreement.
10.2 This agreement is automatically terminated because of the following reasons; bankruptcy of the agency, being incapable of paying its debts, being unable to pay its debts according to any bankruptcy law, accepting its status of being in default, being subjected any kind of liquidation, bankruptcy, rehabilitation, inheritance, moratorium and similar other bankruptcy transactions, in the event of inadequacy or death of the real persons, termination of legal entity type agencies, their filing for financial protection, termination of using the brand of “……..” of the COMPANY for any reason, strike or lockout applications that lasts more than one month at the workplace of the Agency, appointing a liquidation officer, trustee, auditor or similar other persons to the assets and receivables of the Agency for the reason of liquidation, being subjected to a restructuring or a general assignment in favour of the creditors (by means of court order, notice, instructions), making of a decision by Board of Directors or having a court order in this direction. In case of such kind of termination, COMPANY has the right to ask indemnification of its losses and damages, arising or will arise from this agreement.
10.3 In case is an announcement is required to be made related to the expiration, termination of this agreement for any reason to the third persons, the text of the announcement will be determined by the parties together.
ARTICLE 11- REPRESENTATIONS AND WARRANTIES
11.1 Agency hereby accepts, states and undertakes that it is a company , legally established in its country; it has the capacity and authority to execute this agreement and carry out its provisions; it has the capacity and authority to execute this agreement in any countries, where it is working actively; it has realized and completed all kind of legal transactions to execute this agreement and this agreement is legal, valid, binding and executable for it; all permissions, licenses and approvals, which are required for execution of this agreement and carrying out its provisions have been obtained and are protecting their validity, all condition, which are required within this scope, have been complied with; neither the execution of this agreement nor the Agency itself will not cause the violation of the provisions of any agreement, in which the COMPANY is a party, or legislation, law, judgement, directive of government decision, which are valid for the COMPANY.
11.2 These representations and warranties will also protect their validity even after the execution of this agreement and the Agency will be considered repeating the representation and warranties in article no 11.1 in its each order form of related to the delivery of the commodity.
ARTICLE 12- CURRENT ACCOUNT
This agreement has also the characteristics of a Current Account Agreement in accordance with Commercial Code. Thus, the parties hereby also accepts and states that they will comply with the provisions of Commercial Code related to the “Current Account”.
ARTICLE 13- PENALTY CONDITION
In case Agency acts contrary against any provisions of the agreement or causes the termination of the agreement for any reason, it will be obliged to pay an indemnification of USD 50.000 (Fifty Thousand USD). The shareholders of the company, whose signatures are affixed on this agreement, are also responsible from this penalty jointly and individually together with the company.
ARTICLE 14- INSURANCE
Agency will insure all programs, subject to this agreement, in a manner so it will cover all insurance risks (including fire, explosion, theft, flood, snow, but not limited with them) and transfer and assign all relevant insurance policies, in which the COMPANY is registered as Loss Payee, to the COMPANY. In case the Agency doesn’t make aforesaid insurance, the programs will be insured by COMPANY at the expense of Agency. Agency is also obliged to renew the policies when they are expired, in case they fail to do this, the renewal will also be made by COMPANY at the expense of Agency. The Agency hereby accepts, states and undertakes to pay all liabilities, which will be arising of not making the insurance or not renewing the polices in timely manner; or losing of the polices; delaying in making or renewing the policies; all premiums, funds and taxes , which are required to be paid will also belong to the Agency. In case a risk occurs, the receivables of COMPANY will be paid first without looking at the checks, promissory notes and payment documents, given to the account of the receivables.
ARTICLE 15- GUARANTEE
15.1 The Agency hereby states, accepts and undertakes to submit a cash guarantee to the COMPANY in the amount of USD 15.000 or a letter of guarantee, issued by a bank, which has been approved by COMPANY as warranty of all kind of debts, that have been arisen or will be arisen from this agreement. The letter of guarantees, that will be prepared for this reason, will be issued for an indefinite period. All expenses, stamp duties and taxes related to these letter of guarantees, which will be accepted by COMPANY, belong to the Agency.
15.2 COMPANY will unilaterally determine the amount and submission date of guarantee for each new period and Agency hereby accepts, states and undertakes to submit the new and approved letter of guarantee, cash guarantee or any other guarantee, that will be accepted by COMPANY, to the COMPANY.
15.3 The COMPANY has the right to keep all kind of guarantees, which have been given as guarantee of performance related to this agreement, and collect its all kind of receivables arising or will arise from this agreement by converting it into the cash partly or wholly.
15.4 Agency hereby accept, states and undertakes that the COMPANY is also authorised to collect the cost of the penalties and indemnification costs, arising or will arise from this agreement from these guarantees without any notifications.
15.5 As the COMPANY will collect its receivables from the guarantees, submitted by Agency, it has also right to demand and collect them from Agency without making any applications to these guarantees. The COMPANY will also be able to collect and demand its receivables separately in case the amounts of these guarantees don’t satisfy the amounts of the debts.
ARTICLE 16- NOTIFICATION ADDRESSES
The parties hereby state, accept that their above mentioned addresses are their legal notification addresses and the notices, which will be served to these address, will be considered as dully served will give birth to the legal results of an effective legal notification unless the address changes aren’t informed in a written manner.
ARTICLE 17- REPRESENTING AND BINDING
17.1 The changes, which will occur in Circulars of Signature, submitted by attaching to this agreement and in this agreement, will be informed to the company in written and the approval of the COMPANY will be asked.
17.2 In the event of transfer of shares or authorized person changes, the respective authorized persons of the legal entity and/or assignor shareholders are required to obtain written permission of COMPANY . In case of failing to do this, the ex-shareholder will be personally responsible from all rights, liabilities, indemnifications and penalties, which are arising or will increase from this agreement. The COMPANY’s not raising any objection to these announcements won’t be considered as a waiver or acceptance to these changes.
17.3 In case Agency is a legal entity, the shareholders and authorized persons of the company are also responsible from all kind of debts, that will be arising from this agreement.
ARTICLE 18- OTHER PROVISIONS
18.1 Requests and Instructions; Agency will delegate a person or a representative to inform its requests within scope of this agreement to the COMPANY (Authorized Person). After this delegation process is completed, Agency sends the signature specimen of this authorized person to the COMPANY. The COMPANY continues to make transactions in line with the requests of this authorized person until it receives a notice related to the dismissal of this person. The COMPANY can’t be held liable for any inconveniences, which will arise from this matter. Both parties communicate their requests in Turkish language and only to the authorized persons of each party. The requests and instructions are forwarded to the address and numbers in written to the address and number of the receiver by means of fax, telex, e-mail or in the form of originally signed document.
18.2 This agreement is subject to the laws of Republic of Turkey and interpreted according to Turkish laws. Agency hereby accepts irrevocably that ISTANBUL – TURKEY CENTRAL COURTS AND ENFORCEMENT OFFICES have exclusive and the sole judicial authority related to all kind of disputes, arising and/or will arise from this agreement.
18.3 The Turkish text of this agreement will prevail under all circumstances. In case there is a conflict between the Turkish text and its translations to other languages, the Turkish version of agreement will be valid.
18.4 In case any provision of this agreement is considered void and inapplicable for any reason, the validity of the remaining provisions won’t be affected. The provision, which has been declared as void and inapplicable, is changed in a manner so it will be valid an applicable. In case an amendment can’t be made, this provision is left out of the agreement and the rights and liabilities of the parties are interpreted and applied as if this provision doesn’t exist.
ARTICLE 19- ATTACHMENTS
Payment Protocol, Letter of Guarantee, Agency Agreement and main Agreement Changes, Agency Circulars of Signature, Agency Tax Plate Copy, Agency Trade Registration Certificate, issued by Chamber of Commerce, Title Deed or Rental Agreement, belongs to Agency’s Store, all definitions, pictures, logo related to trade mark of Agency.
ARTICLE 20- ENFORCEMENT
This agreement has been entered into the force upon accepting and signing of it by the parties on the date of …./…./……… .