Agreement

AGREEMENT (Draft)

 
This agreement is made on XXXXXXX, XX, 2012

Between

Client XXXXXXX (hereinafter, “Client” or “you”);

And

International Tax Management Pte Ltd, a company incorporated in Singapore and having its registered address at 14 Robinson Road #13-00, Far East Finance Building, Singapore 048545 (hereinafter, “ITM” or “we” or “us”);

(Collectively, the “Parties”, and each a “Party”).

Whereas:

(A) The Client is desirous of engaging ITM, and ITM has agreed, to provide the Services (as defined below and in the Statement of Work).
(B) Pursuant thereto, the Parties have agreed to enter into this Agreement on the terms hereof.

 

 

TERMS AND CONDITIONS

1. DEFINITIONS
1.1 “Request” means the request by the Client for the Services.
1.2 “Agreement” means this Agreement, as it may be amended or supplemented from time to time by the Parties in writing.
1.3 “Services” means tax advisory, tax support, and tax management services performed or to be performed by ITM under this Agreement.
1.4 “Fees” means the fees and time charges incurred from time to time by ITM for the provision of the Services, whether or not invoiced.
1.5 “Statement of Work” means Appendix A to the Agreement that forms part of the Agreement, describing the Services and other specific terms in detail.

 

 

2. OUR RELATIONSHIP WITH YOU
2.1 ITM will perform the Services using reasonable skill and care in accordance with applicable professional standards.
2.2 We will provide the Services to you as an independent contractor and not as your employee, agent, partner or joint venture. Neither you nor we have any right, power or authority to bind the other.
2.3 ITM will not assume any management responsibilities in connection with the Services. We will not be responsible for the use or implementation of the output of the Services.

 

 

3. CLIENT’S RESPONSIBILITIES
3.1 You shall assign a qualified person to oversee the Services. You are responsible for all management decisions relating to the Services, the use or implementation of the output of the Services and for determining whether the Services are appropriate for your purposes.
3.2 You shall provide (or cause others to provide) to us, promptly, the information, resources and assistance (including access to records, systems, premises and people) that we reasonably require to perform the Services.
3.3 To the best of your knowledge, all information provided by you or on your behalf (“Client Information”) will be accurate and complete in all material respects. The provision of Client Information to us will not infringe any copyright or other third-party rights.
3.4 ITM will rely on Client Information made available to us and, unless we expressly agree otherwise, will have no responsibility to evaluate or verify it.
3.5 You shall be responsible for your personnel’s compliance with your obligations under this Agreement.

 

 

4. ITM REPORTS
4.1 Any information, advice, recommendations or other content of any reports, presentations or other communications we provide under this Agreement (“Reports”) other than Client Information, are for your internal use only (consistent with the purpose of the particular Services).
4.2 Client may not disclose a report (or any portion or summary of a Report), or refer to us in connection with the Services, except:
(a) to your lawyers (subject to these disclosure restrictions), who may use it only to give you advice relating to the Services,
(b) to the extent, and for the purposes, required by subpoena or similar legal process (of which you will promptly notify us),
(c) to other persons (including your affiliates) with our prior written consent, who may use it only as we have specified in our consent, or,
(d) to the extent it contains Tax Advice, as set forth is Section 4.3.

 

 

If you are permitted to disclose a Report (or portion thereof), you shall not alter, edit or modify it from the form we provided.
4.3 You may disclose to anyone a Report (or any portion or summary thereof) solely to the extent that relates to tax matters, including tax advice, tax opinions, tax returns, or the tax treatment or tax structure of any transaction to which the Services relate (“Tax Advice”). With the exception of tax authorities, you shall inform those to whom you disclose Tax Advice that they may not rely on it or any purpose without our prior written consent.
4.4 You may incorporate into your internal documents any summaries, calculations or tables based on Client Information contained in a Report, but not our recommendations, conclusions or findings. If you then disclose such internal documents to anyone, you shall assume sole responsibility for their contents and you shall not refer to us in connection with them.
4.5 You may not rely on any draft Report. We shall not be required to update any final Report for circumstances of which we become aware, or events occurring, after its delivery.

 

 

5. LIMITATIONS
5.1 Client (and any others for whom Services are provided) may not recover from ITM, in contract or tort, under statute or otherwise, any amount with respect to loss of profit, data or goodwill, or any other consequential, incidental, indirect, punitive or special damages in connection with claims arising out of this Agreement or otherwise relating to the Services, whether or not the likelihood of such loss or damage was contemplated.
5.2 You (and any others for whom Services are provided) may not recover from us, in contract or tort, under statute or otherwise, aggregate damages in excess of the fees actually paid for the Services that directly caused the loss in connection with claims arising out of this Agreement or otherwise relating to the Services.
5.3 If we are liable to you (or to any others for whom Services are provided) under this Agreement or otherwise in connection with the Services, for loss or damage to which any other persons have also contributed, our liability to you shall be limited to our fair share of that total loss or damage, based on our contribution to the loss and damage relative to the others’ contributions. No exclusion or limitation on the liability of the other responsible persons imposed or agreed at any time shall affect any assessment of our proportionate liability hereunder, nor shall settlement of or difficulty enforcing any claim, or the death, dissolution or insolvency of any such other responsible persons or their ceasing to be liable for the loss or damage or any portion thereof, affect any such assessment.
5.4 You shall make any claim relating to the Services or otherwise under this Agreement no later than three (3) years of the act or omission alleged to have caused the loss in question.
5.5 You may not make a claim or bring proceedings relating to the Services or otherwise under this Agreement against any director or employee of ITM. You shall make any claim or bring proceedings only against ITM.

 

 

6. INDEMNITY
6.1 To the fullest extent permitted by applicable law, you shall indemnify ITM and its directors and employees against all claims by third parties (including your affiliates) and the resulting liabilities, losses, damages, costs and expenses (including reasonable external and internal legal costs) arising out of the disclosure of any Report (other than Tax Advice), or any third party’s use of or reliance on any Report (including Tax Advice). You shall have no obligation hereunder to the extent that we have specifically authorized, in writing, the third party’s reliance on the Report.

 

 

7. INTELLECTUAL PROPERTY RIGHTS
7.1 We may use data, software, designs, utilities, tools, models, systems and other methodologies and know-how (“Materials”) that we own or license in performing the Services. Notwithstanding the delivery of any Reports, we retain all intellectual property rights in the Materials (including any improvements or knowledge developed while performing the Services), and in any working papers compiled in connection with the Services (but not Client Information reflected in them).
7.2 Upon payment for the Services, Client may use any Materials include in the Reports, as well as the Reports themselves as permitted by this Agreement.

 

 

8. CONFIDENTIALITY
8.1 Except as otherwise permitted by this Agreement, neither of us may disclose to third parties the contents of this Agreement or any information (other than Tax Advice) provided by or on behalf of the other that ought reasonably to be treated as confidential and/or proprietary. Either of us may, however, disclose such information to the extent that it:
(a) is or becomes public other than through a breach of this Agreement,
(b) is subsequently received by the recipient from a third party who, to the recipient’s knowledge, owes no obligation of confidentiality to the disclosing party with respect to that information,
(c) was known to the recipient at the time of disclosure or is thereafter created independently,
(d) is disclosed as necessary to enforce the recipient’s rights under this Agreement, or
(e) must be disclosed under applicable law, legal process or professional regulations.
8.2 Either of us may use electronic media to correspond or transmit information and such use will not in itself constitute a breach of any confidentiality obligations under this Agreement.

 

 

9. DATA PROTECTION
9.1 We may collect, use, transfer, store or otherwise process (collectively, “Process”) Client Information that can be linked to specific individuals (“Personal Data”). We will Process the Personal Data in accordance with applicable law and professional regulations.
9.2 You warrant that you have the authority to provide the Personal Data to us in connection with the performance of the Services and that the Personal Data provided to us has been Processed in accordance with applicable law.

 

 

10. FEES AND EXPENSES
10.1 You shall pay our professional fees and specific expenses in connection with the Services as detailed in the applicable Statement of Work. You shall also reimburse us for other reasonable expenses incurred in performing the Services. Our fees are exclusive of taxes, or similar charges, all of which you shall pay (other than taxes imposed on our income generally).
10.2 If we are required by applicable law, legal process or government action to produce information or personnel as witnesses with respect to the Services or this Agreement, you shall reimburse us for any professional time and expenses (including reasonable external and internal legal costs) incurred to respond to the request, unless we are a party to the proceeding or the subject of the investigation.

 

 

11. FORCE MAJEURE
11.1 Neither you nor we shall be liable for breach of this Agreement (other than payment obligations) caused by circumstances beyond your or our reasonable control.

 

 

12. TERM AND TERMINATION
12.1 This Agreement applies to all Services performed at any time (including before the date of this Agreement).
12.2 This Agreement shall terminate on the completion of the Services. Either of us may terminate it, or any particular Services, earlier upon one (1) Month prior written notice to the other. In addition, we may terminate this Agreement, or any specific Services, immediately upon written notice to you if we reasonably determine that we can no longer provide the Services in accordance with applicable law or professional obligations.
12.3 You shall pay us for all work-in-progress, Services already performed, and expenses incurred by us up to and including the effective date of the termination of this Agreement. Payment is due within fourteen (14) days following receipt of our invoice for these amounts.
12.4 Our respective confidentiality obligations under this Agreement shall continue for a period of three (3) years following the termination of this Agreement. The other provisions of this Agreement that give either of us rights or obligations beyond its termination shall continue indefinitely following the termination of this Agreement.

 

 

13. GOVERNING LAW AND DISPUTE RESOLUTION
13.1 This Agreement, and any non-contractual obligations arising out of this Agreement or the Services, shall be governed by, and construed in accordance with, the laws of Singapore.
13.2 Any dispute relating to this Agreement or the Services shall be submitted to mediation before a mediator chosen by the Parties or, where the Parties cannot agree, by the Singapore Mediation Centre. If the controversy or claim is not resolved within ninety (90) days (or longer period, as agreed by the Parties), the mediation shall terminate and the dispute shall be settled by arbitration in accordance with the rules of the Singapore International Arbitration Centre. The result of the arbitration shall be binding on the parties, and judgment on any arbitration award may be entered in any court having jurisdiction.

 

 

14. MISCELANEOUS
14.1 This Agreement constitutes the entire agreement between us as to the Services and the other matters it covers, and supersedes all prior agreements, understandings and representations with respect thereto, including any confidentiality agreements previously delivered.
14.2 Both of us may execute this Agreement (and modifications to it) by electronic means and each of us may sign a different copy of the same document. Both of us must agree in writing to modify this Agreement or any Statement of Work hereunder.
14.3 You represent that the person signing this Agreement and any Statement of Work hereunder on your behalf is expressly authorized to execute it and bind you and any of your affiliates or others for whom Services are performed to its terms.
14.4 You agree that we may, subject to professional obligations, act for other clients, including your competitors.
14.5 Neither of us may assign any of our rights, obligations or claims under this Agreement.
14.6 If any provision of this Agreement (in whole or in part) is held to be illegal, invalid or otherwise unenforceable, the other provisions shall remain in full force and effect.
14.7 If there is any inconsistency between provisions in different parts of this Agreement, those parts shall have precedence as follows (unless expressly agreed otherwise): (a) the applicable Statement of Work and any annexes thereto, (b) these General Terms and Conditions, and (c) other annexes to this Agreement.
14.8 We may use your name publically to identify you as a client, but we may refer to you in connection with the Services only if it is a matter of public knowledge that we are providing them (or have provided them).
14.9 Except as expressly provided for in this Agreement, a person or entity that is not party to this Agreement shall have no right to enforce any of its terms under the Contracts (Rights of Third Parties) Act (Cap. 53B).

 

 

Please sign this Agreement in the space provided below to indicate your agreement with these arrangements and return the signed copy to us by facsimile at +65 3152 0248 or email it to Nico Derksen at nico.derksen@ITM.com.sg and the hard copy by ordinary mail.

 

 

If you have any questions about any of these materials, please do not hesitate to contact Nico Derksen at DID +65 3152 0247 or Mobile +65 9776 4058 so that we can address any issues you identify before we begin to provide any Services.

AGREED AS OF THE DATE SET FORTH ABOVE:

International Tax Management Pte Ltd

________________________________________________

XXXXXXXXXXXX

Signature:    _______________________

Name:        _______________________

Encl:
Copy of this Agreement with all appendices for you to sign and return