COMMISSION AND CURRENT ACCOUNT AGREEMENT PREAMBLE

Transcription

1 COMMISSION AND CURRENT ACCOUNT AGREEMENT PREAMBLE This agreement represents an engagement between COMPENSA and THE CLIENT with the purpose of enabling the latter to acquire and receive, through the mediation of COMPENSA and in exchange for a commission, the goods and services placed at COMPENSA s disposal and which shall be communicated to the CLIENT via . The list of goods and services shall be renewed by COMPENSA and reported to the CLIENT whenever any variation in its contents occurs, with the CLIENT abiding by the contents of the list with its variations. In the event of communications via electronic means or a computerised medium, the parties expressly recognise the evidentiary value of the computer registers and mediums held by COMPENSA and expressly agree to exclude the need for accreditation of their reception. As per this agreement, both parties mutually acknowledge that they hold sufficient legal standing to sign this TRADE COMMISSION AND CURRENT ACCOUNT agreement and, to this end, SET FORTH I.- That COMPENSA is a company engaged in the barter and compensation of goods and services between its clients. II.- That the CLIENT is interested in transmitting, on one hand, and in acquiring and receiving, on the other, through COMPENSA s mediation and in exchange for a commission, the goods and services listed in a separate document. III.- That with both parties concurring, they have agreed to enter into this TRADE COMMISSION AND CURRENT ACCOUNT AGREEMENT, which shall be regulated by the following COVENANTS FIRST.- PURPOSE OF THE AGREEMENT. The CLIENT hires COMPENSA s services in order to allow it to mediate in the transmission and acquisition of the products and services placed at COMPENSA s disposal. To this end COMPENSA, in its own name and on its own account, shall contract the sale and acquisition of the listed products and services in accordance with the CLIENT s instructions, except in cases where it is specifically provided otherwise. The operations under this agreement shall be carried out by means of a Current Account Agreement or by means of Cash Settlements in accordance

2 with the conditions established in the Eighth and Ninth covenants of this agreement. The CLIENT is absolutely forbidden to sell or acquire any product or service in its own name to or from any of the companies that form part of the Barter Exchange without COMPENSA s intermediation. COMPENSA shall send to the CLIENT via the list of products and services available at any given time. SECOND.- ORDERS. The CLIENT shall reliably inform COMPENSA of the goods and services it wishes to acquire or transmit so that it can be issued with a no-obligation quote or offer. Purchases or sales shall take the form of requests formulated on order forms reliably supplied to COMPENSA, which shall mandatorily and in all cases carry the client s signature according to whether it is acting as a buyer or as a seller. The order forms shall include the price, date, place of delivery and form of payment, with the goods transport costs always being chargeable to the CLIENT unless already included in the price. Whenever a CLIENT, once the corresponding order has been formalised and signed, decides to cancel it, express written acceptance from COMPENSA shall be obtained, in which case the CLIENT shall be bound to pay in cash a penalty consisting of 10% of the cancelled order and to meet all expenses in which COMPENSA may have incurred. All charges relating to the shipping of the products to be supplied shall be borne by the CLIENT in the case of a sales operation or by the supplier in the case of a purchase operation, unless specified otherwise in the order. The goods shall be delivered in the briefest time possible or as per the order specifications, and shall be in perfect conditions of use and conservation, without COMPENSA being liable in any case for any damage or deterioration the transported goods or merchandise may have suffered. To this effect COMPENSA reserves the right to not accept any new purchase order until sales orders have been executed that compensate for the outstanding balance in its favour in the current account. In no case shall it be understood that COMPENSA has the obligation of seeking positions in order to compensate for any debit balances that the CLIENTS may maintain with COMPENSA in the trade current account. Should the acquired goods display faults or defects, the CLIENT shall immediately report them to COMPENSA in order to submit a claim to the supplier. In the first instance, the claim would be for the replacement of the

3 defective goods with other units of the same characteristics in perfect conditions and, should this option not be viable, the CLIENT shall place another order with COMPENSA for any of the available products of a similar nature and shall rule out reimbursing the amount for the goods. In any event, the CLIENTS are aware that COMPENSA is purely an intermediary and so, while acting in its own name and on its own account, if for any cause attributable to one of the parties involved in the transaction the operation cannot be undertaken, said operation shall be cancelled without COMPENSA being in any way liable to the compliant party. THIRD.- EXCLUSIVITY AND NON-COMPETITION COVENANT. THE CLIENT undertakes to not sell products or provide services of equal or similar characteristics, even if manufactured by third parties, to COMPENSA s clients. THE CLIENT may not approach them either directly or through third parties without COMPENSA s knowledge and consent. The CLIENT may not enter into agreements with any other company engaged in the same or similar activity as COMPENSA, nor undertake barter operations through any company other than COMPENSA. The CLIENT shall not make offers of employment or enter into collaborations with workers of COMPENSA or of any of the Group s Companies, nor with its managers, employees, agents, clients, suppliers or shareholders. FOURTH.- PRICE. The payment of the price shall be made through a Current Account Agreement or through Cash Settlements in accordance with the conditions established in the Eighth and Ninth covenants of this agreement. The corresponding invoice shall be issued within a maximum of 15 days of the goods having been delivered or the service having been provided. Should payment be made in cash, this shall be done according to the conditions specified in the order and recorded on the invoice, into the account designated by COMPENSA. Should the payment be for compensation, the CLIENTS undertake to formalise, at the very least for the total balance of the purchase orders made and within the calendar year in which the orders were placed, the corresponding sales orders that shall allow compensation to be applied between both operations. FIFTH.- SAMPLES. THE CLIENT shall provide COMPENSA with its own sample book of the products it manufactures, which shall be renewed and updated on an annual basis. Every time said sample book is renewed, COMPENSA shall return the old one.

4 SIXTH.- DURATION OF THIS AGREEMENT. The parties establish ONE YEAR as the term for the agreement. It shall be automatically extended by equal periods, provided that one month before its expiration neither of the parties has expressed its intention of not extending it. SEVENTH.- FINAL SETTLEMENT. In the event of terminating the agreement, at that time the current account shall be closed and the resulting balance shall be settled. If the balance is in credit (in favour of the CLIENT) and its amount does not exceed 1,000 euros, it shall be automatically settled in cash. Any amounts in excess of 1,000 euros shall be settled within a maximum term of one year by delivering to the CLIENT goods or services of its choice available from the different suppliers that form part of the Compensa Barter Exchange. Should the balance resulting from the closing and settlement of the current account be in debit (in favour of COMPENSA), the CLIENT shall be obliged to pay its amount in cash to COMPENSA, plus the interest calculated at the rate resulting from adding two points to the 12-month EURIBOR prevalent on the date, for the period between the agreement termination and the final payment of the debt. To this effect, if it is COMPENSA which requests the termination of the agreement, the announcement of the termination shall be accompanied by the final settlement of the current account. If termination should be at the behest of the CLIENT, COMPENSA shall proceed to the final settlement of the current account within the seven working days following, and this shall be reported to the CLIENT. Once the final settlement has been made and reported to the parties, the debtor party shall owe the debit balance within the five days following receipt of the communication, after which time the amount owed shall accrue interest equivalent to the 12-month EURIBOR prevalent on the date, plus two points. Insolvency clause: Should the CLIENT become insolvent, any loan in kind arranged with COMPENSA shall be reckoned in money with a reduction of 80% of the loan total on the date of the declaration of bankruptcy. For the purposes of this agreement, by insolvency we understand: - declaration of bankruptcy. - The debtor having established with the creditors an extrajudicial compromise countersigned by Compensa which involves a reduction or release of the liability. EIGHTH.- CONDITIONS OF THE CURRENT ACCOUNT AGREEMENT. The amounts that COMPENSA and the CLIENT owe each other as a result of the different operations they undertake according to the SECOND covenant

5 of this agreement shall be reflected in a current account, within which the mutual compensation shall be made of the credit and debit balances they reciprocally maintain with each other. This shall be carried out according to the following rules: I. Nature of the established accounts. Such accounts, in which the compensation of COMPENSA s debtor and creditor amounts with the CLIENT shall be made, shall be considered to be mutual current accounts and may thus show in COMPENSA s accounting as both debit balances (in favour of COMPENSA) and credit balances (against COMPENSA). They shall not accrue any interest except the one arising from its final settlement. II. Account entries. Each one of the compensation amounts identified in the purchase or sales orders, considered individually and as they are executed and billed, shall be integrated and recorded as posting lines in the trade current account that COMPENSA shall establish with the CLIENT. COMPENSA shall regularly notify the CLIENT of the resulting balance through the transmittal of an account statement, understanding that the CLIENT is in agreement with it if no objection has been raised during the working day following its receipt. To this effect the parties agree that such communications shall be made by fax or any medium of communication that may be valid for use, addressed to the person shown in the heading or to those designated by the parties in each case. Compensation shall in no case affect Value Added Taxes or any other taxes that COMPENSA or the CLIENT may have to bear, whose amounts shall be settled in cash as stipulated below. Nor is any compensation envisaged for invoices issued by COMPENSA to the CLIENT for services rendered. III. Update of account balance. Once the corresponding invoices derived from fulfilled orders have been issued and sent, the parties shall proceed to update the current account by recalculating the existing balance at that time. IV. Duration of the current account agreement. Excepting termination for non-compliance, the duration of the current account agreement shall coincide with the calendar year in which the operation is undertaken and shall therefore end on 31 December of the current year. In any event, an agreement between the contracting parties may lead to its termination. V. Closing of the current account. This shall occur at the times mutually agreed by the parties and, in all cases, at the closing of each calendar year. At that time, through the general compensation of all respective Debit and Credit items, the resulting debit or credit balance in favour of COMPENSA or of the CLIENT shall be determined. VI. Communication of the resulting balances at the closing of the current account. At the time when the account is closed, COMPENSA shall report the resulting account balance to the CLIENT. To this end the parties accept that the account balance shall be determined by COMPENSA, which

6 shall be done by compensating the book entries referred to in point II of this covenant. VII. Final settlement of the current account. Once the account has been closed and its balance determined, COMPENSA may choose to transfer its amount either in credit or in debit- to the next period of the account as the first accounting entry, or proceed to the definitive closure of said account through a final settlement. Should COMPENSA not report the chosen option within the 15 calendar days following, the trade current account shall be understood to be extended for another calendar year. When said balance is not incorporated as the first accounting entry of the next period and the trade current account is therefore closed, its amount shall be payable by the debtor party to the creditor party from the time the closure of the current account is reported, with the resulting balances having to be paid within the five working days following receipt of communication of closure of the trade current account. Should it result in a debit balance for the CLIENT, it shall pay the amount of the debt in cash to COMPENSA, and should it result in a credit balance for the client, COMPENSA may choose to pay the debit balance in cash to the client or compensate the client in kind with the products and services included in the COMPENSA catalogue on the date on which the agreement is terminated. After the five days mentioned above, the amount owed shall accrue monthly interest equivalent to the 12-month EURIBOR prevalent on the date, plus two points. NINTH.- CASH SETTLEMENTS. They shall be taken from the current account agreement and they shall consequently not be settled through compensation but in cash, from the amounts whose origin is any one of those covered below and subject to the following rules: I. Purchase or sale settlements explicitly excluded from the current account compensation agreement. COMPENSA and the CLIENT may freely agree, under the conditions they deem suitable and provided that the agreement is set down in writing, that a purchase or sale, or a part of them, be excluded from compensation and instead settled in cash. II. Commissions for mediation accrued in favour of COMPENSA. For each one of the orders placed, COMPENSA shall bill the CLIENT for a commission of 10% for each operation of delivery of goods or rendering of services and of 3% for the reception of goods or services unless both parties have settled on another type of agreement. Calculating the aforementioned commission shall be done individually in each one of the orders, establishing a minimum amount to be billed per operation that shall be reflected and updated in the document: Summary of general purchase/sale conditions through the barter of products and services attached to each order.

7 The invoices issued by COMPENSA for the resulting commission amounts or, if applicable, for the minimum commission, together with the corresponding VAT, may in no case be subject to compensation and shall be settled by the CLIENT in cash paid to COMPENSA upon receipt of the invoice. III. Value-Added Tax in invoices. VAT incurred for goods and services received by COMPENSA from the CLIENT shall be paid by COMPENSA in cash upon receipt of the corresponding invoices. Equally, by COMPENSA collecting it upon submission of the corresponding invoices, the VAT that this entity rebounds on to the CLIENT for the delivery of goods and services shall be settled. This shall be applicable unless the parties agree to mutually settle the resulting VAT amounts with a degree of regularity. IV. Interest accrued in cases of delay. In the event of non-payment of an amount due to COMPENSA by the CLIENT under this agreement, that amount shall accrue in favour of COMPENSA a monthly interest equivalent to the 12-month EURIBOR prevalent on the date, plus two points. TENTH.- CAUSES FOR AGREEMENT TERMINATION. This agreement shall be terminated in the following cases: 1. Mutual agreement between the parties. 2. Full or partial non-compliance by either of the parties, and especially: - When the CLIENT refuses to receive or collect any of the goods or services acquired by COMPENSA on the CLIENT s behalf as a consequence of an order placed by the CLIENT. - When the CLIENT delays the delivery of any of the pledged goods or services by more than ten days beyond the agreed delivery date, without prejudice of the actions to which the parties are entitled for entering a claim for damages caused. - When the CLIENT does not pay in cash the corresponding commission or the corresponding tax. - When a CLIENT rejects three times the services or provisions proposed by COMPENSA to balance the trade current account balances. 3. The CLIENT s declaration of bankruptcy or situation of insolvency. 4. COMPENSA s supervening incapacity AND all other causes provided for under the Law. ELEVENTH.- NOTIFICATIONS. Any summons, notification or requirement between the parties shall be made in writing. For this purpose, both parties designate as their address

8 the one shown in the heading of this agreement as the domicile of the representatives of the parties. TWELFTH.- COMPETENCE AND JURISDICTION. In the event of any query, issue or divergence that may arise in relation to the interpretation or execution of this agreement, the parties waive their own jurisdiction and agree to submit them to the Courts and Tribunals of the city of Madrid.