Miratech Management Terms and Conditions
TERMS AND CONDITIONS
This document represents the terms and conditions for provision of the management and administrative services (hereinafter “Terms and Conditions”) and as a part of and in conjunction with the terms and conditions of the Management and Administrative Services Agreement between companies of Miratech Group or the other document between them referring to the Terms and Conditions (hereinafter “Agreement”) form the integrated agreement between the parties to such Agreement (hereinafter “Parties”): one Party as a Contractor, while another Party as a Customer. Unless otherwise stated in the Agreement, the Terms and Conditions form a part of any respective order under Agreement.
1. SERVICES PROVISION
1.1. The Customer may from time to time engage Contractor through its authorized officers and deliver to Contract instructions requests with respect to matters arising under this Agreement, and the Contractor shall follow such instructions and requests provided they are consistent with the terms and conditions of this Agreement.
1.2. At any time, Contractor may, if it reasonably deems it necessary or appropriate, request instructions from the Customer, within a reasonable period prior to the time necessary for taking action with respect to any matter contemplated by this Agreement, and may defer action thereon pending receipt of such instructions. Any action taken by Contractor, its Personnel or representatives in accordance with the instructions of the Customer, or failure to act by a Contractor pending the receipt of such instructions after request therefor, shall be deemed to be proper conduct within the scope of service authority under this Agreement.
1.3. Contractors hall perform its obligations hereunder in a prudent and efficient manner and in accordance with applicable law and good industry practice.
1.4. At the request of the Customer, Contractor shall, and shall cause its Personnel to, use its reasonable best efforts to provide Services for the Customer, shortly after such request. At the request of the Customer, Contractor shall, and shall cause its Personnel to, make available information relating to Contractor’s activity in respect of Services provision.
1.5. The Parties agree that:
a. the scope, frequency and manner of provision of the Services detailed herein are subject to periodic review by the parties;
b. changes to any of the Services (including the addition or deletion of services) may be made at any time if agreed to by the Parties; and
c. this Agreement may be amended from time to time according to the terms set out in Section 16.
2. COMPENSATION AND PAYMENT PROCEDURE
2.1. In consideration for the Services provided in the Agreement, the Customer agrees to pay to Contractor a management fee (hereinafter – the “Management Fee”) for a period equal to one (1) calendar quarter (the – “Period”) for all activities covered by this Agreement as follows:
a. in relation to Services indicated in clause (i) of the Section 1.A of the Agreement, considering that the said Services include activity of highly skilled personnel and are important for the success of the Customer and generates high returns and additional value for the Customer, to apply a profit mark-up to all costs in the pool at the rate of 20% of the relevant costs, and the following formula shall apply:
MF(i) = DC(i)/0.8, where
MF(i) – Management Fee for Services, specified in clause (i) of the Section 1.A of the Agreement, and
DC(i) – direct costs incurred in relation to the Services and directly attributable to a particular Services, specified in clause (i) of the Section 1.A of the Agreement, provided to the Customer for the period with relation to countries of the Customer’s activities where such Services are to be utilized as communicated to Contractor by authorized representative of the Customer in advance.
b. in relation to Services indicated in clauses (ii)-(x) of the Section 1.A of the Agreement, considering that the said Services are treated as low value-adding intra-group services for the purpose of applying the elective simplified approach, to apply a profit mark-up to all costs in the pool, including any pass-through direct costs, at the rate of 5% of the relevant cost, irrespective of the categories of services, according to the formula:
MF(ii-x) = DC(ii-x)/0.95, where
MF(ii-x) – Management Fee for the Services, specified in clause (ii)-(x) of the Section 1.A of the Agreement, and
DC(ii-x) – direct costs incurred in relation to the Services and directly attributable to a particular Services, specified in clause (ii)-(x) of the Section 1.A of the Agreement, provided to the Customer for the period with relation to countries of the Customer’s activities where such Services are to be utilized as communicated to Contractor by authorized representative of the Customer in advance.
c. The total of Management fee for the period shall be calculated as sum of the above according to the formula:
MF = MF(i) + MF(ii-x)
2.2. Contractor will deliver a quarterly invoice (the “Invoice”) to the Customer as soon as practicable following the end of each quarter for the Services payable to Contractor under Section 3.A of the Agreement for the quarter or the period last ended or, in the case of expiration or termination, all unbilled Services. The Customer shall pay the Invoice within sixty (60) days of receipt of such Invoice; provided, however, that if there is a dispute between the Parties regarding any Invoice, they shall cooperate amicably to promptly determine the correct amount of Expenses payable to Contractor. Interest at the rate of Federal Funds Rate + 1,5% per annum, compounded monthly, will accrue and will be payable with respect to any amounts due and not paid by the Customer until such amounts, and any interest thereon, have been paid.
2.3. Each and all payments made pursuant to this Agreement shall be paid by wire transfer to such account as Contractor may specify to the Customer in invoice or in writing prior to such payment.
2.4. Notwithstanding provision of Section 3.A (i) each Party is responsible for payment of all taxes and fees as provided by its domestic law in relation to the fulfilment of this Agreement. The Customer shall reimburse Contractor all taxes (direct of indirect) arising in connection with Services provision if any. If necessary, the Parties shall provide each other with appropriate certificates issued by the competent authorities to confirm the status of the tax resident of the state of incorporation.
3. WARRANTIES AND OBLIGATIONS;RESPONSIBILITIES OF THE PARTIES
3.1. Representations and Warranties of Both Parties. Each Party represents and warrants to the other Party that:
a. it is free to enter into this Agreement;
b. in so doing, it will not violate any other agreement to which it is a party;
c. it has taken all corporate action necessary to authorize the execution and delivery of this Agreement and the performance of its obligations under this Agreement;
d. it shall comply with all local, national and municipal laws and regulations when carrying out its obligations under this Agreement;
e. the information and documents provided in the course of the various procedures as described in this Agreement and its annexes shall be delivered in a timely manner and shall not be misleading, incomplete, incorrect or false;
3.2. Responsibilities of Both of Parties. Each Party shall be responsible:
a. for proper realization of this Agreement, providing services and payments hereunder.
The Customer agrees to defend and indemnify Contractor, its officers, directors, agents and employees, against all costs, expenses and losses (including reasonable attorneys' fees and costs) incurred through claims of third parties against Contractor based on the provision or Services including, but not limited to, actions founded on services liability.
5.1. Except to the extent expressly authorized by this Agreement or otherwise agreed in writing, the Parties agree that, for the term of this Agreement and for the longer of five (5) years thereafter or the termination of this Agreement, the receiving Party shall keep completely confidential and shall not publish or otherwise disclose and shall not use for any purpose other than proper performance hereunder any information furnished to it by the other Party pursuant to this Agreement, except to the extent that it can be established by the receiving Party by competent proof that such information:
a. was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the other Party;
b. was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party;
c. became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement;
d. was disclosed to the receiving Party, other than under an obligation of confidentiality, by a Third party who had no obligation to the disclosing Party not to disclose such information to others; or
e. was independently developed by or for the receiving Party by persons not having access to such information, as determined by the written records of such party.
5.2.The Parties each represent that all of its employees and the employees of its affiliates, and any collaborators or consultants to such Party or its affiliates, who shall have access to confidential information of the Parties are bound by written obligations to maintain such information in confidence and not to use such information except as expressly permitted herein. Each Party agrees to enforce confidentiality obligations to which its employees and consultants (and those of its affiliates) are obligated.
If an action for infringement of the rights under this Agreement is brought, each party shall execute all papers, testify on all matters, and otherwise cooperate in every way necessary and desirable for the prosecution of any such lawsuit.
7. JURISDICTION AND DISPUTES
This Agreement shall be governed in accordance with the laws of Sweden. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of a sole arbitrator. The seat of arbitration shall be Stockholm (Sweden). The language to be used in the arbitral proceedings shall be English.
The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party.
8. AGREEMENT BINDING ON SUCCESSORS
The provisions of this Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
If any term, clause, or provision of Agreement or these Standard Terms is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
11. NO JOINT VENTURE
Nothing contained herein shall constitute this arrangement to be employment, a joint venture or a partnership.
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties, including any option agreements which may have been entered into between the parties, and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may be in conflict with said Agreement.
Any amendment to this Agreement must be in writing and signed by an authorized person of each party.