DRAFTING BATTLE-TESTED CONTRACTS   APPENDIX 1 REFERENCE TERMS

DRAFTING BATTLE-TESTED CONTRACTS   APPENDIX 1 REFERENCE TERMS

DRAFTING BATTLE-TESTED CONTRACTS

APPENDIX 1

REFERENCE TERMS

Reference 1: INTERPRETATION OF TERMS

1. Definitions

In this contract, unless the context otherwise requires, the following terms shall have the following meanings:

1.1. “Parties” collectively refers to Party A and Party B. “Party” refers to either one of the Parties.

1.2. “Operating Costs” means the sum of all expenses directly related to the business operations of the stores, clearly documented by receipts and invoices in accordance with the tax and accounting regulations of Vietnam (including but not limited to: depreciation expenses, purchase costs, sales costs, wages and salaries paid to Party B’s employees directly working at and for the stores, social insurance, health insurance, unemployment insurance contributions as required by Vietnamese law, interest expenses, advertising, marketing, promotions, commissions, brokerage, reception, hospitality, conferences, losses due to exchange rate differences).

1.3. “Stores” means the locations owned by Party B for the business of fashion products bearing the XYZ Brand and other brands.

1.4. “Force Majeure” means the occurrence of unforeseen events or circumstances beyond the control of a Party, including but not limited to: war, embargo, epidemic, insurrection, civil commotion, storm, fire, flood, tsunami, earthquake, volcanic activity, landslide, cyclone, outbreak of infectious diseases, regional or national transportation disruptions, terrorist acts, intentional sabotage, lockdown, plundering, disturbances, military actions, strikes, currency crises, or any Government prohibitions or any other cause beyond a Party’s control.

1.5. “Contract” means this Brand Development and Management Agreement, including the Appendices (if any) and as amended, supplemented from time to time.

1.6. “Territory” means the provinces in the North of the Socialist Republic of Vietnam, under this contract, understood to be from Da Nang City northwards.

1.7. “Party B“: Means XYZ LLC with the information provided on the first page of the contract.

1.8. “Year” means the calendar year.

1.9. “Party A“: Means MNP Company with the information provided on the first page of the contract and is the legal entity that owns the exclusive distribution rights for XYZ branded fashion products (off-season) and other brands in Vietnam.

1.10. “Brand Development and Management Fee” means the fee that Party B must pay to Party A for the benefits received from the promotion, development, and management of the XYZ Brand and other brands assigned to Party B from time to time, carried out by Party A within or outside the territory of Vietnam.

1.11. “Products” means the fashion goods and accessories bearing the XYZ Brand and other brands directly distributed by Party B within the territory.

1.12. “Month” means the calendar month.

1.13. “Term” means the term of the contract as stipulated in Article 5 below.

1.14. “Brand” or “XYZ Brand“: means the XYZ fashion brand owned by Party A.

1.15. “Total Revenue” means all revenues or any income directly or indirectly earned from the business operations of the stores (including subsidies, surcharges, including value-added tax or other indirect taxes) regardless of whether the money has been received or not. Total Revenue shall be determined in accordance with the accounting laws of Vietnam.

1.16. “Total Profit” means the remaining amount of the stores at any stage after taking the total revenue of the stores in that period and deducting all the operating costs of the stores in that period. Total Profit shall be determined in accordance with the accounting laws of Vietnam.

2. Interpretation

In this contract, unless the context otherwise requires:

2.1. Words importing the singular shall also include the plural and vice versa;

2.2. Words implying one gender shall also imply the other gender;

2.3. References to documents shall include references to those documents as amended, consolidated, supplemented, improved, or replaced from time to time;

2.4. References to clauses, sections, articles, paragraphs, details, and appendices shall also include references to the clauses, sections, articles, paragraphs, details, and appendices of this contract;

2.5. The headings are for convenience and reference purposes only and shall not affect the interpretation of this contract;

2.6. References to laws shall include references to any constitutional provisions, treaties, decrees, agreements, statutes, regulations, ordinances, subordinate legislation, circulars, and court decisions;

2.7. References to laws shall also include references to those laws as amended, consolidated, supplemented, or replaced from time to time;

2.8. References to any individual or organization shall also include references to individuals, enterprises, company organizations, associations, partnerships, companies, joint ventures, trusts, and government organizations;

2.9. If a specific period is provided from, after, or before a determined date or the date of an event or an action, that period shall not include that date;

2.10. If a task is required to be performed on a non-business day, that task must be performed on the next business day; and

2.11. When referring to an accounting term, the meaning of that term must be understood in accordance with the accounting standards of that country, or if there are no corresponding applicable accounting standards, the meaning of that term shall be understood in accordance with generally accepted international accounting principles and practices consistently applied by an enterprise or enterprises.

Reference 2: CONTEXT

Considering that:

(A) Party A is a joint-stock company established under the laws of Vietnam. Party A has been authorized to develop, operate, and manage a residential project (“Master Plan Development“) on a total land area of approximately 480,000m², located at Lot X, Commune Y, District Z, City U, Vietnam (“Master Land“);

(B) Party B is a foreign company established and operating in the Republic of Singapore;

(C) Party A wishes to cooperate with Party B to establish a joint venture economic organization with foreign investment in the form of a two-member limited liability company under the laws of Vietnam, aiming to acquire a total land area of approximately xxx m², located within the Master Land and temporarily understood as Lot MMM (“Development Land“) and to develop luxury apartments and commercial areas thereon for lease and/or sale (“Investment Project“);

(D) The Investment Project will include investment in constructing a complete technical infrastructure system of the apartments and/or commercial areas for lease or sale to eligible buyers following the necessary approvals and applicable laws of Vietnam from time to time; and

(E) Party A will contribute in kind a portion of the value of the Development Land, including the investment costs already invested in the Development Land and the arising advantages from the Development Land to the joint venture company. Party B will contribute money to the charter capital of the joint venture company under the terms and conditions of this joint venture agreement and the implementation of a loan agreement and other agreements as necessary (“Transaction Documents“), the terms and conditions of which are agreed upon by the parties; and

(F) Pending the issuance of the investment certificate and the establishment of the joint venture company, the parties wish to execute this joint venture agreement to govern the relationship between the parties and specify the corresponding rights, responsibilities, obligations, and legal duties of the parties.

Therefore, the parties hereby agree as follows: …

Reference 3: SAMPLE CLAUSES ON REPRESENTATIONS, WARRANTIES, AND COVENANTS

Each party represents, warrants, and covenants to the other party that:

(a) It is a legal entity duly established and validly existing and recognized under the laws of its jurisdiction;

(b) It has the legal capacity and authority to enter into this contract;

(c) It has obtained all necessary permits, licenses, approvals, and authorizations to execute this contract;

(d) The execution of this investment does not violate any laws or official documents applicable to this investment (including any decrees, orders, directives, decisions referenced in this official document) and does not breach any contract or agreement to which it is a party;

(e) It is not currently involved in any litigation or arbitration that, if resolved adversely, would materially and adversely affect its ability to perform its obligations under this contract; and

(f) The obligations undertaken by it under this contract constitute valid, legal, and binding obligations enforceable against it in accordance with the terms of this contract;

(g) Each individual signing this contract on behalf of a party represents and warrants that they have the legal authority to sign and execute this contract on behalf of that party;

(h) Each party shall promptly sign all documents and do all acts reasonably required by the other party from time to time to effectuate or complete this contract and all related transactions;

(i) Party B further represents, warrants, and covenants that the stores will only distribute products bearing the XYZ Brand or other brands as agreed by Party A and Party B from time to time and will not distribute XYZ Brand products or any other brand products without the prior written consent of Party A. Breach of this covenant shall constitute a breach of this contract by Party B, and, accordingly, Party A shall have the immediate right to terminate this contract and claim damages as provided.

Reference 4: ICC 2003 HARDSHIP CLAUSE

[1] A party to the contract is bound to perform its contractual obligations even if events occur that make performance more difficult, provided such events could reasonably have been foreseen at the time of the contract’s conclusion.

[2] Notwithstanding the provision in paragraph 1 of this Article, where a party to the contract proves that:

1. The continued performance of its contractual obligations has become excessively onerous due to an event beyond its reasonable control, which it could not reasonably have been expected to take into account at the time of the conclusion of the contract; and that
2. It could not reasonably have avoided or overcome the event or its consequences, then the parties shall enter into negotiations for alternative contractual terms that reasonably allow for the consequences of the event within a reasonable period of time applicable to this Article.

[3] Where paragraph 2 of this Article applies, but no agreement is reached on alternative contractual terms that reasonably allow for the consequences of the event as provided in paragraph 2, the party affected by this Article shall be entitled to terminate the contract.

Reference 5: SAMPLE CLAUSE ON FORCE MAJEURE

Article 24: Force Majeure

24.1. A party shall not be held liable for any delay, damage, or loss caused by its failure to perform any of its obligations under this contract or the charter due to a force majeure event that directly or indirectly prevents or hinders the performance of such obligations, provided that:

  24.1.1. The affected party shall take all reasonable measures to overcome or avoid the force majeure event; and

  24.1.2. The affected party notifies the other party immediately after the occurrence of the force majeure event, and within fifteen (15) days from the date of the notification to the other party, the affected party obtains proper and valid certification from the relevant competent authority where the event occurred, providing a detailed summary of the force majeure event and the measures taken to remedy it.

24.2. The parties agree that all parties shall take appropriate measures to prevent or mitigate the consequences of the force majeure event.

24.3. If the force majeure event hinders and continues to prevent the implementation of the investment project or the conduct of business operations or the major part of business operations for more than one (1) year, the parties shall discuss and agree on whether to continue or terminate this contract.

Reference 6: SAMPLE CLAUSE ON DISPUTE RESOLUTION

1. In the event of any issues, disputes, controversies, disagreements, or claims arising from or related to this contract, or breaches, termination, or legal validity of the contract (“Dispute”), each party may issue a dispute notice to the other party stating the nature of the dispute.
2. Upon the issuance and receipt of a dispute notice, the parties shall meet in good faith, exert their maximum efforts to amicably negotiate and settle the dispute.
3. If the dispute is not resolved to the satisfaction of both parties within thirty (30) days from the date of or the date of sending the dispute notice, each party may submit the dispute to the Hong Kong International Arbitration Centre (“HKIAC”) in Hong Kong for resolution in accordance with the UNCITRAL Arbitration Rules, effective at the current time and as may be amended by the remainder of this Article.

  c.1. During the arbitration process, the following shall apply:

  (a) The arbitration tribunal shall consist of three (03) arbitrators;

  (b) Each of Party A and Party B shall choose one arbitrator, the arbitrators chosen by the parties shall select a third arbitrator. If the arbitrators chosen by the parties are unable to agree on the third arbitrator, the third arbitrator shall be chosen by HKIAC;

  (c) The third arbitrator chosen by the arbitrators chosen by the parties or by HKIAC (in the absence of agreement) shall act as the Chairman of the arbitration tribunal;

  (d) All arbitrators must be fluent in English;

  (e) English shall be used in the arbitration proceedings;

  (f) Any arbitration shall be conducted by HKIAC in accordance with the arbitration procedures of HKIAC effective on the date of signing this contract, including the UNCITRAL Arbitration Rules.

  c.2. Any award or decision of any arbitration proceedings under this Article shall be binding and enforceable on the parties. The losing party shall bear the arbitration fees unless otherwise decided by the arbitration tribunal.

1. Notwithstanding any disputes arising between the parties or being submitted to arbitration, except for the matters in dispute, the parties shall continue to exercise their remaining respective rights and fulfill their remaining respective obligations under this contract in good faith and ensure that the business and operations of the company are not adversely affected.

Reference 7: ENTIRE AGREEMENT

This contract constitutes the entire agreement and commitment of the parties regarding this project and supersedes all previous commitments between the parties, whether written or oral, which are hereby declared void and of no effect.

Reference 8: SEVERABILITY

If any term of this contract can be performed separately without affecting other terms, the parties shall make every effort to perform that term independently, and that term shall be deemed a separate contract from this contract.

Or

In any case, if one or more terms of this contract are, for any reason, deemed void, illegal, or unenforceable, the voidness, illegality, or unenforceability of those terms shall not affect the validity of the remaining terms of this contract, and in such case, the contract shall be interpreted as if those terms were not included, unless the exclusion of those terms would result in the purpose of the contract not being achieved.

Reference 9: NO WAIVER

The failure or delay of a party in exercising any right under this agreement or under any other provisions shall not be deemed a waiver of that right or any other rights, and the exercise of any right once or partially shall not preclude that party from exercising the right multiple times or additionally or from exercising any other rights.

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