IMFPA - NCNDA



INTERMEDIARY MASTER FEE PROTECTION AGREEMENT /

NON COMPETING NON DISCLOSURE AGREEMENT

IMFPA / NCNDA

DATE [Day, Month, Year]

PARTIES

(1) [Intermediary Name] a citizen of the [Intermediary Country of Citizenship], with address at [Intermediary Full Address Details], holder of Passport [Passport Number, Country, Date and Place of Issue] (hereinafter the ‘Intermediary’); and

(2) A GOLD GENERAL TRADING FZC, a company duly established and validly existing under the laws of the United Arab Emirates, having its registered office at Umm Al Quwain FTZ, UAE, with license number 4932, customs importer code number AE-7001741 with Correspondence Address at Burj Khalifa Tower, Suite 3312, P.O. Box 888906, Dubai, UAE (hereinafter the ‘Company’), duly represented by its Administrative Manager and Shareholder, Mr. ___________________________

Each of the Intermediary and the Company also referred to as a ‘Party’ and both of them as the ‘Parties’.

RECITALS

(A) Whereas, the Company has been seeking sellers of [Name of Commodity] (the “Commodity”) who are willing to enter into an agreement with the Company whereby they will sell to the Company the Commodity.

(B) Whereas, the Company has been seeking intermediary services in finding such sellers and the Intermediary is willing to offer such services to the Company;

Therefore, in consideration of the mutual covenants hereinafter set forth, the Parties hereby agree, acknowledge and accept the following:

OPERATIVE PROVISIONS

Interpretation

1. The headings in this Agreement are inserted for convenience only and shall not affect its construction.

2. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

3. A reference to one gender includes a reference to the other gender.

4. The Annexes to this Agreement form part of (and are incorporated into) this Agreement.

Services to be provided by the Intermediary

5. The Parties hereby agree and acknowledge that the Intermediary is appointed, designated and authorised by the Company (and the Intermediary accepts such appointment, designation and authorisation) to seek, identify and introduce potential sellers of the Commodity (the “Seller(s)”) for the purpose of bringing them into contact with the Company, in order for the Company to negotiate and potentially agree the sale of the Commodity by such Sellers to the Company. More specifically the services to be provided by the Intermediary shall be the following

a) the research and indication of Sellers, who are interested in concluding business with the Company in relation to the sale to the Company of the Commodity, for the purpose of enabling the Company to enter into a direct business relationship and agreement with such Sellers for the sale of the Commodity by such Seller(s) to the Company;

b) communicating in writing brief details of any expression of interest and/or offer of any Sellers so identified to the Company and providing the Company with the basic elements of any expression of interest and/or offer, as well as, the name and/or other contact or identification details of any Seller so identified, so as to enable the Company to enter into a direct business relationship with such Seller;

6. For the avoidance of doubt: (a) the services of the Intermediary are limited to those mentioned under clause 2.1. herein and do not include any further assistance on behalf of the Intermediary for the negotiation and conclusion of any agreement (or any transaction in general) between the Company and any Seller; and (b) the Parties acknowledge that the Intermediary has already introduced to the Company the Sellers mentioned in Annex B.

7. The Parties expressly agree and acknowledge that the Intermediary is an independent contractor and shall not be deemed to be the Company’s agent for any reason whatsoever.

8. The Parties expressly agree and acknowledge that: (a) the Intermediary does not and shall not have any right or authority to assume or create any obligation or liability, expressed or implied, for or on behalf of the Company, or to otherwise bind the Company in any manner whatsoever; (b) the Company reserves all rights, in its sole and absolute discretion to withdraw from negotiations with any Seller identified and introduced by the Intermediary, at any time, with or without cause and not to conclude any agreement; (c) a Seller shall not be deemed to have been introduced by the Intermediary to the Company for the purposes of this Agreement if (i) the Company has had, prior to such introduction, written or electronic communications (including but not limited to exchange of fax or e-mails) with said Seller, or (ii) such Seller has been introduced to the Company by a third party in writing (including but not limited through fax or e-mails) prior to the introduction of such Seller by the Intermediary; and (d) the Intermediary shall be deemed to have introduced to the Company any Seller who hereafter contact or is contacted by the Company or is introduced to the Company by a third party after the date of the execution of this Agreement (and for a period of 24 months after expiry or termination of such) under the condition that the Intermediary proves that it has previously contacted such Seller and previously introduced in writing such Seller to the Company’s name For the avoidance of doubt, the Intermediary shall have no claim for Remuneration or any other amount for Sellers who contact or are contacted by the Company or are introduced to the Company by a third party following 24 months from expiry or termination of the Agreement, even if such Sellers were introduced by the Intermediary to the Company within the term of the Agreement.

9. The Intermediary is responsible for the payment of all costs and expenses incurred by it in carrying out its part of this Agreement, the said costs and expenses including (but not limited to) the Intermediary's travel, subsistence, post, telephone, correspondence, office services and accommodation, translation, insurance and entertainment costs and expenses.

10. The Intermediary covenants that it shall used its reasonable best efforts so that it establishes and maintains good business relationships with any Seller introduced to the Company, in accordance also with common business practice.

Remuneration

11. If the Company concludes the necessary legally binding documentation with any Seller identified by the Intermediary pursuant to this Agreement and buys the Commodity from the Seller (for the avoidance of doubt all the above conditions must be met), the Intermediary, in relation to the services provided by the Intermediary under clause 2.1, shall be entitled to a remuneration in cash equal to [percentage in words] per cent ([X,XX]%) on the net consideration agreed between the Company and the Seller and actually paid by the Company to the Seller for the purchase of the Commodity by the Company from the Seller (for the purposes of this paragraph the term ‘net consideration’ means the consideration agreed between the Company and the Seller and actually paid by the Company to the Seller for the purchase of the Commodity by the Company, excluding any imposed taxes, levies, stamp duties etc and further excluding any third parties fees or other costs and expenses associated with the transaction) (the ‘Remuneration’). The Remuneration is only owed to the Intermediary if the Company make a minimum net profit of X,XX%, otherwise, no Remuneration is owed to the Intermediary due to profit margins that are too low to pay any Intermediary Fees. The amount of the Remuneration may be increased or decreased with the prior written agreement of both Parties.

For avoidance of doubt, the net consideration is calculated after deducting 1% from the discount that was offered by the Seller for the Company’s costs. So, if the Seller offers a 10% discount, after deducting 1%, we end up with a final discount of 9%.

It is obvious the Intermediary Fee is calculated accordingly if the discount given by the Seller is 15% or 5% or whatever per cent is agreed between the Seller and the Company.

12. The amount the Intermediary is entitled as Remuneration shall become due and payable by the Company three (3) Business Days following payment by the Company to the Seller of the full consideration agreed between the Company and the Seller. In case the Company pays the above consideration in instalments, then the Remuneration shall also be paid to the intermediary in instalments, pro rata. More particularly, each time the Company pays an instalment to the Seller, it shall pay not later than three (3) Business Days from payment of such instalment the corresponding part of the Remuneration to the Intermediary (amounting always to [X,XX]% of such instalment). ‘Business day’ or ‘business day’ herein means any day when banks are open for business in Dubai, United Arab Emirates and London, United Kingdom.

13. The Company shall pay the Remuneration to the following bank account of the Intermediary:

|BANK NAME: | |

|BANK ADDRESS: | |

|BIC /SWIFT CODE: | |

|BANK OFFICER: | |

|BANK OFFICER TELEPHONE: | |

|BANK OFFICER EMAIL: | |

|BENEFICIARY NAME: | |

|ACCOUNT SIGNATORY NAME: | |

|ACCT. NUMBER: | |

|IBAN NUMBER: | |

|SPECIAL WIRE INSTRUCTIONS: | |

|REFERENCE CODE | |

A copy of the swift by the Company’s or Buyer’s bank in relation to the transfer of the Remuneration (or any part thereof) to the bank account designated by the Intermediary shall constitute full proof of the payment of the Remuneration (or any part thereof respectively).

14. The Intermediary hereby expressly recognizes and accepts that it shall provide the services mentioned in art. 2.1. herein, being aware and undertaking the risk that it shall be entitled to remuneration only upon fulfilment of all conditions mentioned in art. 3.1. herein. For the avoidance of doubt, the Intermediary hereby expressly recognizes and accepts the risk that it shall not be entitled to (and in any case waiving any right it may have to) any remuneration whatsoever in case the Company does not conclude (for any reason whatsoever) any agreement with a Seller identified by the Intermediary.

15. The Company shall use its reasonable endeavours so that in any agreement between the Company and any Seller identified and introduced to the Company by the Intermediary pursuant to this Agreement, the contracting parties shall acknowledge the Intermediary’s involvement and the Remuneration to which it is entitled.

16. The Company’s obligations under clause 3 (including to pay Remuneration) shall continue notwithstanding termination of this Agreement.

Term and Termination

17. This Agreement commences upon signature by both Parties and subject to clause 4.2 herein, expires after one (1) year.

18. Any Party, notwithstanding any rights it may have pursuant to clause 5 herein, has the right to terminate this Agreement with immediate effect, by written notice to the other Party, in case of a substantial breach by the other Party of the obligations arising out of the Agreement.

19. Any failure by a Party to carry out all or part of his obligations under the Agreement resulting in such detriment to the other Party as to substantially deprive it of what it is entitled to expect under the Agreement, shall be considered a ‘substantial breach’ for the purpose of this clause 4.

20. Termination or expiry of this Agreement shall not deprive any Party from rights or claims created or arisen before such termination or expiry.

21. The following provisions of this Agreement shall survive the termination of this Agreement: clauses 2, 3, 5, 8 and 10.

Default

22. Any of the following events, ascribed to or caused by any Party shall constitute an ‘Event of Default’ under this Agreement:

a) any material statement, information or representation set forth herein is incorrect or misleading and such statement, information or representation is incorrect or misleading by intention or due to gross negligence; or

b) any failure to perform fully under any material covenant, undertaking or obligation set forth in this Agreement; or

c) any breach of any warranty or covenant stipulated herein;

23. In the event that an Event of Default, it must immediately notify the other Party of the nature of the Event of Default.

24. In the event that a Party causes or suffers an Event of Default (the ‘Defaulting Party’) and fails to cure such Event of Default within thirty (30) calendar days after receipt of a written notification of the Event of Default from the other Party (the ‘Aggrieved Party’), the Defaulting Party shall, subject to the issue of an arbitral award against the Defaulting Party, as per clause pay 5.2 damages in the amount of the damage suffered by the Aggrieved Party within thirty (30) days of such demand and may terminate this Agreement immediately. The Parties agree that any Intermediary’s claim in relation to any Event of Default or this Agreement in general is limited to damages actually suffered pursuant to non payment of its Remuneration (provided that it is entitled to such) and up to the amount of the Remuneration. The Parties expressly and unreservedly agree that the Company shall not by responsible for any Intermediary’s consequential or incidental damage or expense of any kind or nature and in any case the Intermediary hereby waives any such right or claim. Without limiting the generality of the above, the Company shall not be liable for any Intermediary’s loss of profit, loss of business opportunities, loss of goodwill, work stoppage and in any case the Intermediary hereby waives any such right or claim.

25. Notwithstanding clause 5.3 herein, the Aggrieved Party shall be free to pursue any other equitable or legal remedies that it may have against the Defaulting Party in connection with the Event of Default in question.

26. No Party shall be entitled to claim twice for the same loss or damage, on its own account and on the account of any other Party (whether under this Agreement or any other agreement).

Representations and warranties

27. Each of the Company and the Intermediary hereby represents and warrants in respect of itself, to each other that:

a) it is lawfully incorporated and existing under the laws of its jurisdiction (it being understood that such representation and warranty is being given only by the Company);

b) it has the necessary power to enter into and perform its obligations under this Agreement;

c) this Agreement has been duly authorised and executed by it and constitutes valid, legally binding and enforceable obligations upon it;

d) neither the entry into this Agreement nor the implementation of the transactions contemplated by it will result in:

1) (only in relation to the Company) a violation or breach of any provision of its articles of association, statutes by-laws or other constitutional documents;

2) a breach of, or give rise to a default under, any contract or other agreement to which it is a party or by which it is bound; or

3) a violation or breach of any applicable laws or regulations or of any order, decree or judgement of any court, governmental agency or regulatory authority applicable to it,

and in case of breach of any such undertaking, representation or warranty, the Party in breach agrees to indemnify and keep indemnified the other Party against any and all losses, liabilities, costs and expenses suffered or incurred by the other Parties in relation to any such breach;

e) no action, proceeding, litigation or dispute against it is presently taking place or pending which would or might threaten or inhibit its ability to perform its obligations under this Agreement; and

f) all governmental or official approvals, consents, notarisations, legalisation and registrations required in relation to the making, performance and validity of this Agreement have been obtained by it at the time they were required and are, to the extent required, in full force and effect.

Confidentiality

28. Subject to any applicable law and clause 7.2 herein, each Party shall keep in confidence and not disclose to any third party (other than any Company’s representatives, lawyers, accountants, banks) in accordance with and for the purposes of clause 2 herein) or use for any purpose other than as authorised by this Agreement, all ‘Confidential Information’ which was provided to it by the other Party or any other Party’s representatives, in respect of such Party and such Party’s officers, shareholders, client’s and business without the written authorization of the disclosing Party. For the purpose of this Agreement, the term ‘Confidential Information’ means any information which a Party (‘Receiving Party’) receives from the other Party (‘Disclosing Party’) in writing or other tangible form. Notwithstanding the foregoing, Confidential Information does not include any information that:

a) is already known to the Receiving Party at the time of its receipt from the Disclosing Party; or

b) is or becomes publicly available without breach of this Agreement by the Receiving Party; or

c) is made available to a third party by the Disclosing Party without restriction on disclosure; or

d) is received by the Receiving Party from a third party without, to the Receiving Party’s best knowledge, any obligation of confidentiality; or

e) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information;

29. The Company agrees to keep in confidence and not disclose to any third party any information on any potential Seller disclosed to the Company by the Intermediary.

Applicable law – Dispute resolution

30. This Agreement shall be governed by English law.

31. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. The seat, or legal place, of arbitration shall be London. United Kingdom. The language to be used in the arbitral proceedings shall be English.

Acknowledgements

32. Each party on behalf of itself and acknowledges and agrees with the other that:

a) in entering into this Agreement neither party has relied on any representation or statement made prior to entry into this Agreement; and

b) the only remedy available to either party for breach of this Agreement shall be for breach of contract under the terms of this Agreement and it shall have no right of action against any other party in respect of any representation or statement made prior to entry into this Agreement. Nothing in this Agreement shall, however, operate to limit or exclude any liability for fraud.

Miscellaneous

33. This Agreement together with any documents referred to in it constitutes the entire agreement and understanding between the Intermediary and the Company and supersedes any previous agreement between them relating to the services referred to in clause 2.1. (which shall be deemed to have been terminated by mutual consent).

34. If any term, covenant, condition or provision of this Agreement, or their application to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

35. Waiver by party of performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver of any other covenant or condition under this Agreement.

36. Notices or communications under this Agreement shall be sent to the respective party hereto by e-mail (and at the same time by mail or fax) to the following address:

For the Intermediary

To the attention of: [Intermediary Name and Full Contact Details for Notices]

Cell: [Intermediary Cell Number]

Fax: [Intermediary Fax]

Email: [Intermediary Email]

For the Company

To the attention of: A Gold General Trading FZC (c/o Administrative Manager)

Address: Burj Khalifa Tower, Suite 3312,

P. O. Box 888906, Dubai, UAE

Cell:

Fax: +442076811978

Email: jb@a-gold.ae

37. Time is of the essence in the performance of services under this Agreement.

38. The Parties agree that the present business arrangement reflected in this Agreement is on a non exclusive basis. In this respect, the Intermediary is free to offer similar services to any third parties whatsoever and the Company is free to engage any other intermediaries for purposes similar to the one of this Agreement.

39. No variation of or supplement to this Agreement, or of any of the documents referred to in it, shall be valid unless it is in writing and signed by or on behalf of each of the parties.

40. This agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.

41. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no person other than the Intermediary and the Company shall have any rights under it. The terms of this Agreement or any of them may be varied, amended or modified or this Agreement may be suspended, cancelled or terminated by agreement in writing between the parties or this Agreement may be rescinded (in each case), without the consent of any third party.

|For and on behalf of A GOLD GENERAL TRADING FZC |[NAME OF INTERMEDIARY] |

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| | |

| | |

|Signature and Stamp of AIMS Gold FZC | |

| |[Signature and Stamp of Intermediary] |

|Signed by |

|Date: [Day, Month, Year] Date: [Day, Month, Year] |

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| |

| |

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ANNEX A – AUTHORISATION LETTER

[A GOLD GENERAL TRADING FZC LETTERHEAD]

[Date]

Authorisation Letter

This is to confirm that [Intermediary Name] a citizen of the [Intermediary Country of Citizenship], with address at [Intermediary Full Address Details], holder of Passport [Passport Number, Country, Date and Place of Issue], has been contractually designated and authorised by us, pursuant to a certain Intermediary Services Agreement concluded between us and [Intermediary Name], to seek, identify and introduce to us potential sellers of gold and/or diamonds (“Seller”).

Should any potential Seller express an initial interest to sell gold and/or diamonds, [Intermediary Name] shall introduce such Seller to us for the purpose of conducting direct negotiations and – should these negotiations be successful – concluding binding legal documents in relation to the sale of gold and/or diamonds.

Notwithstanding the above paragraph, [Intermediary Name] does not have the authority to sign on our behalf any kind of document or contract, including NDA’s, or to bind our company in any way whatsoever.

Sincerely,

_____________________

_____________________, Administrative Manager

Signed and stamped by and on behalf of A GOLD GENERAL TRADING FZC

ANNEX B – SELLERS INTRODUCED BY THE INTERMEDIARY

Seller 1)

|Company Name: | |

|Address: | |

|Name of signatory: | |

|Title: | |

|Nationality: | |

|Passport No.: | |

|Tel No.: | |

|Fax No.: | |

|E-mail: | |

Seller 2)

|Company Name: | |

|Address: | |

|Name of signatory: | |

|Title: | |

|Nationality: | |

|Passport No.: | |

|Tel No.: | |

|Fax No.: | |

|E-mail: | |

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