BROKERAGE COMMISSION AGREEMENT
THIS BROKERAGE COMMISSION AGREEMENT (the “Agreement”) dated this _______ day of _______________, 2021 BETWEEN:
Le Pont Co., Ltd of 105 Laforet Akatsuka, 4-35-15 Akatsuka, Itabashi ku, Tokyo 175-0092, Japan
(the “Broker”)
- AND –
XYZ Corporation of 1234 ABCDE XXXXX, USA
(the “Seller”)
The Seller owns and operates equipment and/or is developing facilities to be used for the collection, processing, conversion, densification, storage, and sale of Torrefied Pellet Fuels or Dried Wood Chips, or Green Wood Chips, or Steam Exploded Pellets or any other kind of biomass to be used as fuel to produce electricity (hereinafter referred to as “Products”) to Japanese energy market.
The Seller desires to sell its Products to potential clients (hereinafter referred to as “Buyer”) introduced by Broker to the Seller.
The Broker has identified and agrees to introduce the Seller to potential Buyers in Japan who wish to sign an Off-Take Agreement to purchase products from the Seller on long term basis.
NOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, the adequacy and sufficiency of which is hereby acknowledged, Broker and Seller hereto, intending to be legally bound hereby, agree as follows:
- ASSIGNMENT OF RIGHT
The Seller hereby grants the Exclusive Right and Privilege to the Broker to market its Products to the Japanese energy markets (Territory). The Broker shall market the Products exclusively within the Territory only.
The Broker hereby grants the exclusive right and privilege to the Seller to supply its Products to its potential Buyers in the Territory.
This exclusive right and privilege shall exist as a right of first refusal for Seller within the Territory. Seller shall notify Broker within thirty (30) business days from Broker’s official offer of Buyer for Seller’s consideration to sell Products. Such official notification from Broker of a Buyer’s interest shall be in writing to Seller.
- DUTY TO COOPERATE
Seller agrees to cooperate with Broker in providing any information pertaining to the Products reasonably requested and shall not prevent Broker’s participation and / or attendance at any closing or sale of business with Buyer(s) introduced by the Broker.
The Broker agrees to cooperate with Seller in providing any information reasonably requested pertaining to the sale of Products to the Buyer(s).
- TERM
The term of this Agreement shall begin as of the date and year upon which the Seller commences first sale and shipping to the Buyer referred by Broker, and shall continue in full force and effect for a period of five (5) years or as long as the business continues between the Seller and the Buyer referred by Broker.
- SERVICES
Broker agrees to market, broker and negotiate contracts on behalf of Seller for the Products. Broker agrees to render to Seller services in connection with marketing and promotion of the Products exclusively within the prescribed Territory (Japan). The Broker agrees not to directly undertake any sales or accept any orders or sign any contracts on behalf of the Seller, and will only refer potential Buyers to the Seller. Broker understands and agrees that the Seller shall be entirely free to accept or reject any proposal that the Broker provides. If the Seller accepts such a proposal, Broker agrees in assisting and canvassing the Buyer to execute an Off-Take Agreement directly between the Seller and the Buyer. The Broker will have no further role or responsibility once Buyer and Seller have reached an agreement on their business terms and sign an Off-Take Agreement.
- COMPENSATION
If and when the seller shall sign an Off-Take Agreement for the sale of Products with any buyer introduced by the broker, then the seller shall pay to the Broker a Brokerage Commission against each sale made by the Seller to the Buyer for as long as such business continues for Five (5) years after the first completed delivery.
The brokerage commission shall be a flat fee of Six US Dollars (6 US$) per metric ton of Products sold by the seller to the referred buyer, regardless of the value of the resulting sales of products by the seller. The Brokerage Commission will remain fixed as Six US Dollars (6US$) per metric ton against each sale made by the Seller for Five (5) years after the first completed delivery.
The seller agrees to provide proof of the actual shipped quantity of Products in metric tons within 3 working days after the shipment has left the shipping port in the USA. The broker will then invoice the seller its agreed commission based on the quantity shipped by the seller. All payments must be made in US currency and payable only to the broker’s designated bank account mentioned in the invoice by the broker to the seller.
The Brokerage Commission fee payments shall be paid to the Broker in less than 7 business days after all monies for the Brokerage Commission fee from the Buyer have been collected by the Seller.
The seller has no obligation, nor any right, to pay, deduct or withhold any amount owed to the broker in relation to taxes. It is important to highlight that the “Brokerage Commission” shall be understood as all commissions without any deductions except for the bank charges incurred to remit to the broker’s account.
The Broker will introduce the Buyer to the Seller to deal strictly in torrefied pellets, the seller is not to offer any other products to the buyer or buyer’s associates. Before offering any other products, the seller must first enter a new written NCND and Brokerage Commission Agreement with the broker under mutually decided terms and agreements between the seller and broker.
- INVESTMENT
Investment shall constitute the total amount of money the Investor Seller has invested in the project in Japan starting from the purchase of Biomass Power Plant ID and the Land, construction and installation of the Biomass Power Plant, including but not limited to purchase of boiler, generator, building, until the power plant is complete and ready to operate.
Broker shall receive 6% of the total investment.
- CONFIDENTIALITY
The Parties shall keep strictly confidential the names and any other identifying information of any contacts introduced or revealed to the other party, and that their firm, company, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, contractors, heirs, assigns, designees, or consultants will not contact, deal with, negotiate or participate in any transactions with any of the contacts without first entering into a written agreement with the Party who provided such contact, unless that Party gives prior written consent. Such confidentiality will include any names, addresses, email addresses, telephone / facsimile numbers, and / or other pertinent information disclosed or revealed to either Party.
- OBLIGATION OF NON-COMPETITION
The non-competition provisions of this Agreement are an essential and material part of the total agreement, by which both Parties agree that they shall not use any advantages derivable from such confidential information in their own business or affairs, unless the same is done pursuant to a new agreement executed by all signatories to this document.
- NO PARTNERSHIP
The Broker and its agents, employees and affiliates will perform their duties and obligations under this Agreement as independent contractors. Nothing contained in this Agreement will be construed as creating an employment, agency, partnership, joint owner, or joint venture relationship between the Parties.
- AMENDMENT
This Agreement may not be altered or amended except in writing signed by the involved Parties, being the Seller and the Broker.
- ENTIRE AGREEMENT
This Agreement constitutes the final Agreement of the Parties. It is the complete and the exclusive expression of the Parties’ agreement with respect to the subject matter of this Agreement. All contemporaneous and communications, negotiations, and agreements between the Parties relating to the subject matter of this Agreement are expressly merged into and superseded by this Agreement.
The provisions of this Agreement may not be explained, supplemented or qualified by evidence of trade usage or a prior course of dealings. Neither Party was induced to enter into this Agreement by, and neither Party is relying on any statement, warranty, representation, or agreement of the other Party except those set forth expressly in this Agreement. Except as set forth expressly in this Agreement, there are no conditions precedent to this Agreement effectiveness.
- OFFICIAL DOMICILE
For the purpose of this Agreement, the Parties agree to keep their registered offices as indicated in this Agreement. Any modification shall be notified to the other Party by letter with acknowledgement of receipt, in order to be valid.
- WAIVER
Any waiver of any terms and conditions thereof must be in writing and signed by the parties hereto. The waiver of any of the terms and conditions of this Agreement shall not be construed as a waiver of any subsequent breach of the same or any other terms and conditions hereof.
- LANGUAGE
This Agreement is drafted in English. No word, figure or sign was crossed, invalidated, modified or added, either handwritten or by any means, between the printing and the signing of the original copies. This Agreement shall be deemed to have been negotiated and drafted by both Parties of equal bargaining position; its provision shall be interpreted in accordance with the plain meaning of the words used and shall not be construed strictly in favor of, or against, any Party.
- NOTICES
All notices, consents and other communications required or permitted by this Agreement shall be in writing and shall be delivered either by internationally recognized courier service, or by email as follows:
If to the Broker:
Le Pont Co., Ltd
105 Laforet Akatsuka, 4-35-15 Akatsuka,
Itabashi-ku, Tokyo 175-0092, Japan
Attention: Mohammad Yousaf Jalil (President)
Email: info@le-pontjapan.com
If to the Seller:
XYZ USA
Attention: Mr. ABC (Corporate Secretary & Director)
Email: xxx@xxx.com
All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if by internationally recognized courier service. If sent by email, it shall be deemed to have been given once it appears in the outbox of the sender Party’s email box.
- WORD FORMS
All terms and words used in this Agreement regardless of the number and gender in which they are used shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine or feminine or neuter as the context or sense of this Agreement or any paragraph or clause herein may require, the same as such words have been fully and properly written in the appropriate number and gender.
- SECTION HEADING
The section headings in this Agreement have been inserted for convenience only. They are not part of this Agreement, and shall not be taken as an interpretation of any of its provisions.
- ATTORNEY FEES
In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs. As for RER Biocarbon Corporation, any costs associated with travel, room and lodging, meals, and any other non-legal expenses associated with its participation in
legal proceedings brought forward in the Tokyo District Court or any courts to which it otherwise be referred to by said Tokyo District Court as a result of a breach of this Agreement will be reimbursed in their entirety should RER Biocarbon Corporation prevail in such proceedings.
- ASSIGNMENT / BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns, provided, however, neither this Agreement nor any rights hereunder shall be assignable by either Party without the prior written consent of the other Party.
- GOVERNING LAW
This agreement shall be construed and enforced in accordance with the laws of Japan, without regard to its conflicts of laws rules.
- VENUE & JURISDICTION
The parties hereby irrevocably submit to the sole and exclusive venue and jurisdiction of the District Court in Tokyo, Japan for any suit, action or proceeding arising out of or relating to this Agreement or any related transaction between the Parties. The Parties hereby irrevocably waive, the fullest extent permitted by law, any objection which may now or hereby be made to the laying of the venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.
- DISPUTE RESOLUTION
Each party acknowledges that a breach of this Agreement may cause the other party irreparable injury and damage and therefore may be enjoined through injunctive proceedings in addition to any other rights and remedies which may be available to such other party at law or in equity, and each party hereby consents to the jurisdiction of district courts located in Japan, with respect to any such action. The parties expressly waive their right to trial by jury in any such action.
- COUNTERPARTS
This Agreement may be executed simultaneously in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
- EXECUTION DATE
While both Parties are domiciled in different countries, this Agreement shall become effective from the date of its execution by both Parties by signatures and by corporate seals as shown and dated below. The Agreement will take effect on the date the last party signs the Agreement (“Execution Date”).
IN WITNESS WHEREOF, each Party represents and warrants that it has authority to enter into this Agreement and agree to enter into this Agreement in its entirety and lawfully makes the disclosures contemplated hereunder.
____________________ (Sign & Seal) ____________________ (Sign & Seal)
Mohammad Yousaf Jalil MR ABC
President President & Director
Le Pont Co., Ltd XYZ Corporation
Tel: + 81 90 6070 8999 Tel: + 1 2222 3333 3333
Email: info@le-pontjapan.com Email:
Date: December 19, 2020 Date: March 5, 2021
____________________ (Sign) ____________________ (Sign)
Toshio Hasegawal (Witness) MR XYZ
Consultant Corporate Secretary & Director
Le Pont Co., Ltd ABC Corporation
Tel: +81 80 4131 6656 Tel:
Email: hasegawa.toshio7@gmail.com Email:
Date: December 19, 2020 Date: March 05, 2021
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