|EMAAR Inventory Management Program - Example Consignment Agreement
(hereinafter referred to as the "Supplier")
EMAAR IMPEX PVT LTD
16A/2, Hanuman Terrace, Tara Temple Lane,
Lamington Road, Mumbai-400007 India
(hereinafter referred to as the "Consignee")
(the Supplier and the Consignee hereinafter collectively referred to as the "Parties")
WHEREAS, in the course of his business, the Consignee sells various goods;
WHEREAS the Consignee wishes to sell the various goods of the Supplier;
WHEREAS the Supplier agrees to consign various goods to the Consignee, subject to the following provisions;
WHEREAS the Parties wish to evidence their agreement in writing;
WHEREAS the Parties are duly authorized and have the capacity to enter into and perform this Agreement;
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
Subject to the express condition that the Consignee observes, respects and complies with all clauses, conditions and stipulations of this Agreement, the Supplier agrees to consign from time to time, various goods (hereinafter collectively referred to as the "Goods"), which will be described on the delivery notes of the said Goods. Moreover, the Consignee acknowledges that this Agreement shall apply to all Goods originating from the Supplier, as fully described in the said delivery notes.
In consideration of the Goods' consignment by the Supplier, the Consignee undertakes and binds himself to sell the Goods, in the course of his business, in an efficient and professional manner, at his above-mentioned place of business (or at any other place, provided that a notice specifying the full address of such other place be given to the Supplier).
Reserve of the Right of Ownership All the Supplier's Goods in the hands of the Consignee are and shall remain the exclusive property of the Supplier until sold by the Consignee; and any consideration received by the Consignee in connection to the sale of said Goods shall be considered to have been received by the Consignee as the Supplier mandatory, and such consideration shall belong to the Supplier.
Goods Special Identification
The following statement shall appear on every Goods' delivery note: "The goods listed on this delivery note shall remain the Supplier's property and shall be subject to the Consignment Agreement for twelve (12) months from acceptance". The Consignee agrees in advance and acknowledges that all the Goods in his hands shall be those actually described in the delivery notes, unless otherwise informed by the Consignee within four (4) weeks following the receipt of the Goods, of any discrepancies in the delivery notes or regarding the Goods. Otherwise, it is understood that the delivery notes comply with the Agreement between the Parties, and that the received Goods are in a good physical and operational condition, and in the exact quantity.
Upon receipt of the Goods and before offering them for sale, the Consignee shall identify the Goods so as not to confuse them with other goods in the possession of the Consignee. This identification shall be done by distinctive labeling or marking submitted for the Supplier's prior approval.
3.04 Separate Accounting
The Consignee shall keep a separate accounting with appropriate account books in order to clearly identify the proceeds of sale of the Goods handed over in consignment against those of other goods sold by the Consignee in the course of his business.
On or before the 15th day of every month as requested by the supplier, the Consignee shall remit to the Supplier, in the prescribed format, a detailed report on:
Return of Unsold Goods
a) the Goods sold during the previous month; and
b) the Goods remaining in his possession at the end of the said previous month.
Payment of the Price of Goods
The Consignee shall send payment to the Supplier in Net 30 Day terms. Further, the Consignee will pay one half (1/2) the final sales price of the consigned Goods to the Supplier.
If all or part of the Goods have not been sold twelve (12) months after their receipt by the Consignee, the latter shall immediately return to the Supplier, at his own expense, all such unsold Goods in the same condition as received. Otherwise, the Consignee shall immediately advise the Supplier of disposal costs associated with scrapping the Goods.
Assumption of Risks
The Consignee shall be liable for all risks of loss or damage to the Goods handed over in consignment, from the time they are received by the Consignee and until they are sold, or returned to the Supplier.
The Consignee shall subscribe to an insurance policy covering all Goods placed on consignment and shall provide the Supplier, at its request, with a proof of such insurance coverage. In case of loss, the Consignee shall pay to the Supplier the proceeds of such insurance, or if not, the price of any Goods handed over in consignment so damaged or lost.
Inventory and Inspection by the Supplier
At any time during the Consignee's usual business hours, the Supplier or his representative shall have the right to proceed with an inventory of the consigned Goods and examine same, as well as inspect accounting books concerning these Goods and make copies of them.
Displacement of Goods
The Consignee shall not move the Goods to another location unless a prior written notice indicating the other location's full address has been received by the Supplier.
Unless otherwise stated in this Agreement, the following provisions shall apply.
Neither Party shall be considered to be in default pursuant to this Agreement if the fulfillment of all or part of its obligations is delayed or prevented due to "Force Majeure." "Force Majeure" is an external unforeseeable and irresistible event, making it absolutely impossible to fulfill an obligation.
If all or part of any section, paragraph or provision of this Agreement is held invalid or unenforceable, it shall not have any effect whatsoever on any other section, paragraph or provision of this Agreement, nor on the remainder of the said section, paragraph or provision, unless otherwise expressly provided for in this Agreement.
Any notice intended for either Party shall be deemed to be validly given if it is in writing and is sent by registered or certified mail, or by courier service to such Party's address as set forth in this Agreement, or to any other address which the Party in question may have indicated in writing to the other Party. A copy of any notice sent by e-mail shall also be sent according to one of the above-mentioned delivery modes.
The headings in this Agreement have been inserted solely for ease of reference and shall not modify, in any manner whatsoever, the meaning or scope of the provisions hereof.
The Schedules to this Agreement shall be deemed to form an integral part hereof if they have been duly initialled by all the Parties.
Under no circumstances shall the failure, negligence or tardiness of a Party as regards the exercise of a right or a recourse provided for in this Agreement be considered to be a waiver of such right or recourse.
All rights set forth in this Agreement shall be cumulative and not alternative. The waiver of a right shall not be interpreted as the waiver of any other right.
This Agreement constitutes the entire understanding between the Parties. Declarations, representations, promises or conditions other than those set forth in this Agreement shall not be construed in any way so as to contradict, modify or affect the provisions of this Agreement.
This Agreement shall not be amended or modified except by another written document duly signed by all the Parties.
Number and Gender
Where appropriate, the singular number set forth in this Agreement shall be interpreted as the plural number, and the gender shall be interpreted as masculine, feminine or neuter, as the context dictates.
No Right to Transfer
Neither of the Parties may, in any manner whatsoever, assign, transfer or convey its rights in this Agreement to any third party, without the prior written consent of the other Party.
Calculating Time Periods
In calculating any time periods under this Agreement:
a) the first day of the period shall not be taken into account, but the last one shall;
b) the non-juridical days, i.e. Saturdays, Sundays and public holidays, shall be taken into account; and
c) whenever the last day is a non-juridical day, the period shall be extended to the next juridical day.
The currency used for purposes of this Agreement shall be Indian Rupees(INR).
This Agreement shall be construed and enforced in accordance with the laws in force in the state of Maharashtra, in India.
Each counterpart of this Agreement shall be considered to be an original when duly initialled and signed by all the Parties, it being understood, however, that all of these counterparts shall constitute one and the same Agreement.
This Agreement shall bind the Parties hereto as well as their respective successors, heirs and assigns. Liability
Whenever one of the Parties is constituted of two or more persons, these persons shall be jointly and individually liable towards the other Party.
Whenever one of the Parties fails to fulfill an obligation under this Agreement within a stipulated deadline, the mere lapse of time shall constitute a formal notice of default to the said Party.
This Agreement shall become effective on the date of acceptance.
The term of this Agreement shall be twelve (12) months, with automatic renewal unless otherwise agreed to by both parties within thirty (30) days of expiration.
This Agreement shall terminate in any of the following circumstances:a) upon its expiry (if its term is definite) or upon the expiry of any renewal period, if applicable;
b) upon the written consent of the Parties;
c) if either Party becomes bankrupt or insolvent, or ceases to carry on business;
d) if a Party fails to fulfill any of its obligations hereunder and does not remedy the default within a period of thirty (30) days following receipt by the said defaulting Party of a formal notice asking it to remedy the default or within such shorter delay as is provided for in this Agreement;
e) if the Goods are seized, and the seizure is not annulled within the next fifteen (15) days;
f) if the Goods are given or assigned as security to a third party;
In any of these cases, the Supplier may immediately repossess the unsold Goods without any further notice.
ACKNOWLEDGEMENT BY THE PARTIES
The parties hereby acknowledge as follows:
a) Due negotiations took place between them prior to the drafting of this agreement;
b) This agreement truly and completely defines the understanding reached between them;
c) Each and every one of the provisions of this agreement is legible;
d) They did not encounter any difficulties in understanding the provisions of this agreement;
e) Before signing this agreement, each party had the opportunity to consult a legal adviser; and
f) Each party obtained a copy of this agreement immediately after it was signed by all the parties.