This Chinese-English representation agreement allows for an individual or company to represent another in a different territory with the aim of introducing them to new customers.
It has 12 clauses and is provided in English and Chinese together for cross-border business arrangements. The clauses include:
- commencement and duration
- duties of representative
- representative’s fees and expenses
- local participation
- relationship of parties
- assignment and subcontracting
- communication and notices
- governing law and resolution of disputes
C115 – 指定投标代表人协议（中英双语）
This Agreement is between a Client in one country which wishes to appoint a Representative in another to introduce it to potential business. The Agreement is fairly limited in scope and is not intended as a fully-fledged agency agreement. Instead, the Representative’s activities are confined primarily to providing tender information to the Client. The Agreement nonetheless contemplates that if matters work out between the two parties, the Representative might become the local agent or even local partner of the Client.
Dealing with the specific clauses: 详细条款如下：
1. REPRESENTATION 代理：
This sets out the appointment of the Representative. It is not stated to be an exclusive arrangement.
2. COMMENCEMENT AND DURATION 生效期与期限：
This Clause fixes the commencement date and initial duration. Either party has the right to terminate on giving notice – initially to expire at the end of the first year and thereafter on 3 months’ notice or whatever period is agreed between the parties. Unless terminated, the agreement will continue from year to year.
3. DUTIES OF REPRESENTATIVE 代理人的职责：
This sets out the obligations of the Representative which is essentially to register the Client with relevant government and other departments that issue tender invitations and to forward tender documents to the Client, plus such other services as the Client may reasonably request.
3.2 assumes that the Client will visit the Territory from time to time and that the Representative will look after visas, hotel accommodation as well as setting up meetings with prospective customers.
3.3 imposes a ‘good faith’ obligation on the Representative.
4. REPRESENTATIVE’S FEES AND EXPENSES 代理人收费与费用：
This Clause contemplates that the Client will pay a fixed fee for the Representative’s services as well as reimbursing expenditure which is incurred. That expenditure must have the Client’s prior written authority. Tender documents can be expensive and the Client will only want to pay for them if he has expressed an interest in the tender and authorised the Representative to obtain them.
In 4.4 there is provision for the Representative to obtain a finder’s fee if the Client obtains a contract award as a result of the Representative’s efforts. The fee amount is to be agreed on a case by case basis.
In 4.5 the Agreement assumes that if the Representative has a contracting role on a successful tender, it will make a profit on its activities, in which case no finder’s fee will be appropriate.
5. TENDERS 投标：
This deals with the possibility of the Client needing to show that it has a local agent in order to be able to submit a qualifying tender. The Representative, in effect, has the right of first refusal for appointment of agent, but if terms cannot be agreed, the Client is free to appoint somebody else.
In 5.2 the possibility of the Representative submitting a tender in its own name is contemplated. In such circumstances, a ‘Teaming Agreement’ will be needed and that is referred to here.
6. LOCAL PARTICIPATION 地方参与：
In many countries, a foreign company which wishes to do business needs to have a local agent or partner. This clause gives the Representative the right to be considered for that role if the Client decides to set up in the Territory but does not bind the Client to appoint the Representative. Note also in many countries care must be taken as regards registration of agency and representation agreements as termination may involve the payment of compensation by a principal.
7. RELATIONSHIP OF PARTIES 双方之间的关系：
This clarifies the relationship, in particular, making it clear that the Representative has no authority to enter into commitments without the Client’s prior written consent.
8. CONFIDENTIALITY 保密性：
The nature of the Agreement is such that confidentiality is clearly required and this is specified here.
9. ASSIGNMENT AND SUBCONTRACTING 转让与分包：
A standard clause – this is a personal arrangement and assignment and subcontracting would not be appropriate without consent.
10. TERMINATION 终止：
In addition to the provisions of paragraph 2.2, either party can terminate if the other is in breach or becomes insolvent.
11. COMMUNICATION AND NOTICES 通讯方式与通知
This clause assumes that each party will nominate somebody as the principal contact between the two and it also deals with the method of sending formal notices under the Agreement.
12. LANGUAGE, LAW & RESOLUTION OF DISPUTES 语言，适用法律和争端解决
This clause contains choices with regard to language, law and resolution of disputes. Before finalising the agreement, you will need to decide on the appropriate wording for your particular contract.
Language. It is useful to specify the governing language when an agreement is signed in two languages. Where the original version is prepared in English and then translated, it is probably better to have English as the ruling language – and vice versa.
Governing law. This is the law to be applied in any dispute when interpreting the meaning of the agreement.
Resolution of disputes. We have provided for a two stage process: first senior executives of the two parties try to resolve the dispute by direct negotiation. If this fails, then there is a choice – either the courts or arbitration.
There are many factors to be considered when reaching a decision on these matters and we have some free documents on our website that give more information – Z138 Arbitration and Z139 Governing law and Jurisdiction.