Agreement for technical Assistance Fe

BUSINESS SUPPORT SERVICES AGREEMENT THIS BUSINESS SUPPORT SERVICES AGREEMENT (“Agreement”) is made at on this 1st October, 2017 by and between: MURATA MACHINERY BANGLADESH LTD. a company established under the laws of Bangladesh Companies Act-1994 and having its Office at Paradise Tower (5th Floor), Plot # 11, Road # 02, Sector # 03 Uttara, Dhaka-1230, Bangladesh and its Managing Director, Mr. Futoshi Miyamoto Hereinafter referred to as the “MBD” which term or expression as hereunder used shall include its successors and assigns) of the part- A, And MURATA (THAILAND) CO., LTD, a company incorporated under the laws of Thailand Companies Act and having its Office at 898/43-44 S.V. City Tower 2, 25th Floor Rama 3RD, Bangpongpang, Yannawa, Bangkok 10120, through its Managing Director, Mr. Futoshi Miyamoto (Hereinafter referred to as the “MTC” which term or expression as hereunder used shall include its successors and assigns) of the part-B. The MBD and the MTC are also hereinafter referred to individually as ‘Party’ and jointly as ‘Parties’. WHEREAS The MTC is in the business of providing he Technical supports (Repairing, Installing, Handling etc.) to their Intended Customers and possible customer in relation to their business support. The MTC has approached MBD to provide the Technical supports (Repairing, Installing, Handling etc.) and the MBD has shown its willingness to take the same. The Parties hereto are desirous of entering into this Agreement that sets out the terms and conditions on which the MTC shall provide the Services to the MBD. NOW, THEREFORE, in consideration of the mutual covenants set forth below, it is agreed as follows: DEFINITIONS “Agreement” shall mean this Services Agreement and any written modifications thereto by an instrument of equal force. “Approvals” shall mean BIDA and Bangladesh Bank permissions, consents, validations, confirmations and other authorizations as may be required to be obtained in order to implement the provisions of this Agreement including all permissions/authorizations from Bangladesh Bank. “Day” shall mean a working day and shall exclude weekly holidays (Friday and Saturday) and holidays declared by the Government of Bangladesh and/ or by any other statutory authority. “Effective Date” shall mean the date of execution of this Agreement as provided hereinabove. “Services” shall mean the services, more specifically provided to in Annexure ‘A’ to this Agreement to be rendered by the MTC to the MBD in terms hereof. “Force Majeure” shall mean and include, to the extent that the event is not within the reasonable control of the Party whose performance under this Agreement is affected thereby, any of the following events such as war, terrorism, hostilities, acts of the public enemy or of belligerents, sabotage, blockage, revolution, insurrection, riot or disorder; expropriation, requisition, confiscation or nationalization; act of God/ nature; acts of Government or any local, state authority, fire, frost, earthquake, storm, lightning, or any other event, whether or not of the same class or kind as those above set out and whether or not caused directly or indirectly by the act of the non-affected party. “Person” shall mean and include any legal or natural person, partnership, firm, trust, liaison office, government or local authority, department or other body (whether incorporated or unincorporated). “Confidential Information” means information that: (a) is by its nature confidential; (b) all the information provided by MBD to the MTC related to its business whether financial, technical or personnel related; In and for the purpose of this Agreement, the singular includes the plural and vice-versa, and any reference to one gender includes the other gender. PROVISION OF SERVICES The MTC shall render all Services as provided in Annexure ‘A’ under the Agreement, in the manner provided herein below through its own employees, or agents, or third parties and MBD shall not be liable to make any arrangement for the provisions of Services except to the extent necessary for compliance of any applicable law, in Bangladesh or elsewhere. MBD shall be entitled to all the benefits and profits arising from or incidental to the Services provided by the MTC under this Agreement. RESPONSIBILITIES/RIGHTS OF THE MTC The MTC will be responsible for provision of the Services in an efficient and effective manner. The MTC shall issue invoices to MBD as per the Services mentioned in Annexure 'A'. The Services hereunder do not and shall not include at any time any managerial services. The MTC shall be entitled during all times to enter into an agreement with any third party for the provisions of the same or similar services as the Services. RESPONSIBILITIES/RIGHTS OF MBD The MBD may provide all information and/or documents as may be required or requested by the MTC in order to provide the Services. The MBD may provide access to all relevant technical, installation, Repairing and handling Jobs /information and material as may be required or requested by the MTC for providing the Services in accordance with the terms of this Agreement. The MBD shall make timely and regular payment towards the Technical Assistance fee for the Services to the MTC in accordance with the provisions of this Agreement. PAYMENTS The payment for the Services shall be made by MBD against the invoices raised by the MTC for the Services rendered after MBD has confirmed the Services are completed. MBD shall make the payment against the invoice within thirty (30) days of the receipt of each invoice, by way of a crossed cheque or bank transfer. All payments made by MBD pursuant to this Agreement shall be net of applicable Bangladesh taxes and other taxes, if any levied on that payment shall be reimbursed by MBD at actual, except the corporate income tax payable by the MTC. VAT, if applicable on the Services, shall be paid extra by MBD. MBD shall reimburse all reasonable expenses incurred by the MTC in the course of rendering the Services from time to time subject to the MBD’s prior written consent. Each submission of expenses for reimbursement (i) shall be supported by an itemized description of expenses claimed and attached receipts when such receipts are reasonably available and (ii) will be deemed to contain the MTC’s certification that all expenses submitted are based upon actual costs incurred. APPROVALS The Agreement is conditional upon the Parties obtaining all requisite Government Approvals, if any required by each of them. Each of the Parties shall at their expense apply for and obtain the necessary approvals within a reasonable time. In the event of either of the Parties failing to obtain the necessary approvals as above mentioned, the Agreement shall be deemed to be cancelled or modified as may be appropriate in the circumstances. CONFIDENTIALITY Each Party agrees that it shall maintain the confidentiality of the Confidential Information including all data relating to financial, technical, Installation, Repairing, production and handling with respect to the other Party and its operations and shall not be entitled to any ownership or any other right of the other Party’s confidential and proprietary information. Each Party further agrees that it shall not disclose or communicate any of the information to any competitor or third party or use or refer to any of this information for any purpose whatsoever other than as required in terms of this Agreement. REPRESENTATIONS AND WARRANTIES Each Party represents and warrants to the other Party that: Each Party is duly incorporated and validly existing entity in accordance with the laws of the country where it is incorporated. The Parties are authorized to enter into and perform this Agreement, and this Agreement when executed, will be duly authorized, executed and delivered and will constitute its valid and binding obligations, enforceable in accordance with the terms herein except insofar as the enforceability may be limited by general principles of equity. The execution and delivery of this Agreement and the consummation of the transactions contemplated herein do not and will not (a) contravene its articles, by-laws, or other constitutional documents; (b) contravene any material provision of any material indenture, agreement or instrument to which it is a party or by which it or any of its properties is bound; (c) conflict with, result in a breach of, constitute (with notice or the lapse of time or both) a default under, or permit the termination or acceleration of any obligation under any such indenture, agreement, or instrument; (d) contravene any applicable law, rule, regulation, ruling, order, judgment or decree. There are no actions, suits, claims, proceedings or investigations pending or to its knowledge, threatened against it in any court or before or by any governmental authority, agency, or instrumentality or any arbitration in which there is a reasonable possibility of an adverse decision that could, whether individually or in the aggregate, materially and adversely affect its ability to perform its obligations under this Agreement. VALIDITY AND TERMINATION This Agreement is valid for a period of 6 months Effective from 1st May, 2017 (Start operation of MBD). However, this Agreement can be terminated at any time by either party by giving thirty (30) days prior written notice. On the completion of the term, and in case of no written termination notice by MBD to MTC, the agreement shall automatically be renewed for the next 6 months and will continue to do so till a written notice for termination is submitted by either of the party. FORCE MAJEURE The performance of either Party shall not be deemed to have been affected, if the same is suspended on account of a Force Majeure event. On the occurrence of a Force Majeure event, any Party claiming a cause or an event of Force Majeure shall promptly as soon as possible after the cause or event and in any case within fifteen (15) Days, notify the other Party in writing and provide full particulars of the cause or event of Force Majeure and the date of first occurrence thereof, and also keep the other Party informed of any further developments. The Party affected by the Force Majeure shall use all reasonable efforts to remove the cause or event of Force Majeure or mitigate its effects and both Parties shall resume performance hereunder immediately when such cause or event is removed. If such cause or event of Force Majeure or its effects shall continue for a period of thirty (30) days in circumstances where the rendering of Services is materially and adversely affected either operationally or financially and the Parties are unable by agreement to avoid such cause event or effects, this Agreement shall terminate on expiry of such thirty (30) days. However, it is hereby agreed by the Parties that payment of the fee or other expenses as due and payable by MBD to the MTC in terms of this Agreement shall not be affected by any Force Majeure event. GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of Bangladesh ARBITRATION If any dispute or difference of any kind whatsoever shall arise between the Parties in connection with or arising out of this Agreement (and whether before or after the termination or breach of this Agreement) Parties shall promptly and in good faith negotiate with a view to its amicable resolution and settlement. In the event no amicable resolution or settlement is reached within a period of sixty (60) days from the date on which the dispute or difference arose, such dispute or difference shall be finally settled by arbitration in Tokyo, in accordance with the Commercial Arbitration Rules of The Japan Commercial Arbitration Association. The existence of any dispute or difference or the initiation or continuance of the arbitration proceedings shall not postpone or delay the performance by the Parties of their respective obligations pursuant to this Agreement. LIABILITY OF THE PARTIES The MTC shall perform the Services entirely at its own cost and expenses and MBD shall not be obliged to pay the fee or reimburse any expenses in excess of the amount as provided in Annexure A. However, MBD shall be liable to pay for the actual costs incurred by the MTC for travel and other expenses, which shall be billed separately by the MTC. In such case, the MTC shall get the prior approval from MBD. In no event shall any Party be liable to the other for consequential, special, incidental or punitive loss, damage or expense (including without limitation, lost profits, opportunity costs, etc.) arising out of or in pursuance to this Agreement except in the event of an intentional act or the gross negligence of any Party. However, in the case of either Party commits an intentional act or the gross negligence, the other Party shall be able to claim damages within a scope not to exceed the upper limit of 3 times of the consideration. MISCELLANEOUS The Parties shall not have and will not represent themselves as having any authority to act as the agent of the other or to create any contractual obligation to any third party on behalf of the other. Each Party hereby agrees that it shall not be entitled to assign any rights and obligations under this Agreement to any third party without the prior approval of the other Party. This Agreement evidences the entire Agreement between the Parties and it overrides any earlier agreement or other document recording the understanding, or commitments of between the Parties prior to the execution hereof. If any provision of the Agreement shall be declared invalid or unenforceable the remainder of the Agreement shall continue in full force and effect. This Agreement cannot be changed, modified or amended except by a supplementary agreement signed by both Parties. TERMINATION OF AGREEMENT The Agreement may be terminated prior to its expiration by either party, by written notice to the other, in the event of: i) The dissolution, or winding up, merging or acquisition by the other party; ii) The filing of the petition by or against the other party initiating proceedings in a bankruptcy or reorganization, the appointment of a receiver over the whole or any part of the assets of such other party or any action by such other party to take advantage of any insolvency or other law for relief of debtors generally; iii) The breach by either party in any material respect of any of the terms of this Agreement, which breach has not been cured within fourteen (14) days of the giving to such party of written notice of such breach by the other party. Neither expiration, termination or cancellation of this Agreement shall release either party from any liability which at such time has already accrued to the other party, or in any way affect the survival of any right, duty or obligation of either party which is contemplated to be performed as of the date of or after such expiration, termination or cancellation, each party shall immediately perform and fulfill all the outstanding momentary obligations under this Agreement. Termination of this Agreement shall not preclude either party from seeking any remedy provided by this Agreement or by law, including without limitation any claim for actual or liquidated damages. IN WITNESS WHEREOF MBD and MTC hereto have executed this Agreement on the day and year first hereinabove written. MURATA MACHINERY BANGLADESH LTD MURATA (THAILAND) CO., LTD Name: Futoshi Miyamoto Name: Futoshi Miyamoto Title: Managing Director of the MBD Title: Managing Director of the MTC ANNEXURE ‘A’ Services to be provided by the MTC No. Service Contents 1 Technical and Management Fee 　 1 Technical and Management Fee Remarks □ MBD shall pay salary, bonus (if any), management fee and technical support fee to MTC in the name of “Technical and Management Fee”. NET payment for this concern shall be decided as per Bangladesh Bank, ITO-1984 and any other concerned authorities and laws of Bangladesh. Note-1: Remittance amount will be 6% of Annual Sales of Service period (As per Section-25, Chapter-10 of Bangladesh Bank “Foreign Exchange Guideline, Volume-1 (as of 31 May, 2009)”) Note-2: Financial Year of MBD will be considered as Service Period for MTC. * For First year it will be May, 2017 to March, 2018. * For subsequent years it will be April-March. Note-3: MTC will be allowed to rise invoice after the completion of service period.