outsource contract

AGREEMENT KNOW ALL MEN BY THESE PRESENTS: This Agreement made this ______________ by and between: ABC Company a corporation organized under Philippine law, with office address at_______________________________”) -- and -The Outsourced Party a corporation duly organized, registered and existing under Philippines laws, with principal offices located at ARTICLE 1 1.1 NATURE OF AGREEMENT This agreement is a frame agreement against which ABC shall place job orders for the performance of Management Services over different categories of items (“Items”). ____________ shall not, by the execution of the frame agreement, be bound to place any specific quantity of orders for such services, and the amount of orders placed may vary from time to time. For purposes of this agreement, Items shall comprise of ___________ equipment, Corporate Supplies, equipment, marketing materials, promotional items, office equipment and furnishings. This agreement shall be supplemented by the Service Level Agreements thereto as may be agreed by the parties and set forth in writing from time to time. SCOPE OF SERVICE 1.2 ARTICLE 2 2.1 The Outsourced Party shall perform end-to-end Logistics management Services for the Items stated. These services include: a. b. c. d. e. f. g. Receiving of Items Warehousing according to ______________’s specified environmental conditions Returns Handling Order Management (Acceptance, Fulfillment and Processing) Inventory Management Disposal Management Report generation, as required by ______________ (collectively, the “ Management Services”). The details of the Management Services are set out in the Annex A Scope of Work. 2.2 The Outsourced party at its own expense shall make all preparations and provisions necessary to render the Management Services, including but not limited to – a. b. c. d. ; ; ; And engagement of highly skilled and competent personnel to render the services. 2.3 The outsourced party shall comply with all laws relevant to the rendition of the Logistics Management Services and to its business as a whole. In rendering the service, the outsourced shall strictly comply with the Service Level Agreement stated in Annex C. ABC shall review outsourced party’s performance versus the Service Levels periodically, and at least once a month. 2.4.1 Outsourced party shall from time to time after the commencement of the Service and with at least seven (7) calendar days prior notice, submit to a full due diligence review of its operations, facilities and qualifications to be conducted by authorized representatives to enable to validate that Outsourced party meet the Service Levels stated in Annex C and that it can comply with all its covenants under this Agreement. Unless otherwise agreed by the parties, such due diligence review shall be conducted no more often than bi-annually. 2.4 2.5 2.6 Service Levels shall be subject to periodic review, and in no case less than annually. _______________ shall establish a contingency plan to cover for possible service or system breakdowns and events of force majeure such as fire, flood, earthquake, etc. _____________ shall be entitled to review this contingency plan from time to time. If _________ in its reasonable opinion believes that the contingency plan is unsatisfactory, ____________ shall inform ___________________ and require it to take the necessary steps to revise the contingency plan. ________________ shall provide all reports required by _______________ within the time periods required by and ________________________ shall agree on the format of all reports prior to the commencement of the services. 2.7 . ARTICLE 3 3.1 DOMESTIC RATES, INVOICING AND PAYMENT Rates for the services as set out in PRICE SCHEDULE ANNEX D shall be firm, fixed and inclusive of all costs of labor, materials, tools, and equipment that are necessary for the completion of the service for the period of this Agreement. Rates are inclusive of Value Added Tax and any other taxes which may accrue by virtue of -------------- performance of its obligations under this Agreement. The _________________ shall shoulder all national and local taxes, accruing or arising out of this Agreement, if any. The __________________ shall consolidate and bill all transactions entered into by _______________ within a thirty (30) calendar day period. The_________________ shall send the relevant and accurate billing statement to _____________ Billing Address th th between the 10 and 15 day of the succeeding month. _______________ shall not be obliged to make any payment where the _________________________fails to provide a correct or complete billing statement together with the required supporting documents. ________________shall pay all bills within thirty (30) working days from receipt of such bills. In the event _______________ disputes any portion of the bill, ____________ shall inform ________________ in writing of its dispute. In case of any dispute of any amount in the billing statement, _____________________- shall be entitled to withhold payment on the disputed amount in the billing statement until the parties have settled such dispute. Any dispute notwithstanding, ________________ shall promptly pay that part of the bill which it does not dispute. 3.2 3.3 3.4 3.5 __________shall only be entitled to set-off sums, including penalty charges as set forth in ANNEX C, that the ________________ may owe ________________ by virtue of this Agreement against any payments due to the ________________________ under this Agreement where such right to set-off is specifically provided for in this Agreement. __________________shall notify the ________________of the set-off 3 working days prior to its implementation. ___________________ shall, at its option, pay by way of check (which must be picked up by the _______________ at _____________ office on designated check releasing dates) or by remittance to a bank account designated by the ______________. If payment is made by check, the ___________________ shall notify ______________ of the name of its authorized collector. ____________shall withhold taxes required by government regulations to be withheld at source from all payments due the ______________ and remit the same to the Bureau of Internal Revenue for _______________ account. ____________, upon proper written request by the _________________, shall provide the latter with the appropriate Certificate of Taxes Withheld every quarter. SERVICE LEVELS AND QUALITY CONTROL 3.6 3.7 ARTICLE 4 4.1 shall strictly comply with the service levels stated in Annexes B and C hereof. 4.2 To the extend that the standard or quality of service may not have been specified in Annexes B and C, ____________________ shall ensure that it uses good quality materials, techniques and standards and executes the services with the care, skill and diligence required in accordance with the best outsourcing and/or facilities management practice. In the event of any delay or non-performance in the performance of the services that is not excused by any other provision of the Agreement, the _______________shall be liable to pay ______________the penalties stated in Annex C hereof. In any event, and regardless of the cause of delay, ___________________shall immediately take corrective action to rectify the delay or non-performance. _____________shall have the right to engage a take-over contractor to perform the services which __________________ has failed to perform if, after due demand and an opportunity given to cure the delay, __________________ nonetheless fails to correct the delay within the thirty (30) calendar day curing period. Should ________________ be compelled to engage a take-over contractor, ________________shall be entitled to forfeit the payment due to the ___________________ for the services not performed or inadequately performed, and in addition, _________________ shall also pay the difference between the charges charged by the take-over contractor and _____________ standard charges, to the extent that the take-over contractor’s charges may be higher than the ____________________standard charges. 4.4.1 The engagement of a take-over contractor is without prejudice and does not detract from ______________ right to charge penalties for the delay already incurred prior to the engagement of the take-over contractor, to rescind this Agreement and to exercise the rights and remedies that _________________may have under this Agreement, in law, or in equity. 4.3 4.4 . 4.5 Delay in the performance of the Services may be excused if the same is due to Force Majeure. For purposes of this Agreement, “Force Majeure” is defined as any circumstance beyond the control of the parties that directly prevents either of the parties from performing their obligations under this Agreement, including but not limited to: a. war and other hostilities, (whether war be declared or not), invasion, and act of foreign enemies, b. ionizing radiation or contamination by radio-activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear components thereof, c. rebellion, revolution, insurrection, and civil war, or d. a natural calamity or other acts of God. 4.6 Neither party shall be considered in default or in breach of its obligations under this Agreement to the extent that performance of such obligations is directly prevented by any circumstance of Force Majeure that arises, and only to the extent and for the duration of the Force Majeure. _____________ and its nominated representatives shall have the right to audit ________________ performance of services under this Agreement, whether with or without prior notice to _____________________. Provided has been presented with the proper identification of the person conducting the inspection and proof of the person's authority (signed by the designated contact person) to conduct such audit and/or inspection, ___________ shall arrange for representatives to have access to its premises and to all locations and documentation relevant to the Logistics Management Services. _____________shall extend all reasonable assistance to the representatives of ______________conducting such an audit. 4.7 ARTICLE 5 5.1 THIRD PARTY ARRANGEMENTS shall not sub-contract this Agreement without the prior written consent of.Nothing in this clause, however, prevents the _______________from entering into contractual arrangements with other suppliers or distributors of goods and services necessary to render components of the Management Services by way of supply of raw materials, utility services, equipment rentals and contractual labor. may, however, require to declare the list of its third party suppliers of goods and services as part of quality audit of ____________ (a) 5.2 Services. ARTICLE 6 WARRANTIES OF BOTH PARTIES ARTICLE 7 LIABILITIES, INSURANCE AND INDEMNIFICATION 7.1 The Items shall remain the sole property of _____________ at all times. The ______________ shall be solely accountable for all Items under its custody from the time the ________________________receives the Items until the Items are accepted by the recipient, to the following extent: 7.2 _______________ shall process ___________claims for compensation for any loss or damage as follows: 7.2.1 _____________ shall file any claim within fifteen (15) working days from the date _______________discovers the loss or damage of the Items, together with all supporting documents. __________________shall agree on the form of the claim and the required supporting documents as part of the Operating Guidelines. If _______________ claim is not disputed by_______________--, and the claim and its supporting documents are complete________________ agrees to pay the claim as follows : 7.2.2 (a) For claims of ___________ (b) For claims more than failing which ___________ shall be entitled to set-off the amount of the claim against outstanding bills collectible from _______________ if any, without prejudice to any and all other legal rights __________ may have against the ____________ to recover damages or otherwise obtain redress for such damage or loss. ________________________ shall obtain: a) Property Insurance ---b) Fidelity Guarantee.--c) Comprehensive General Liability==== 7.2.3 7.3 7.4 ____________. _________________shall adequately insure its risks under this Agreement. . UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE, REGARDLESS OF WHETHER SUCH LOSS WAS REASONABLY FORESEEABLE OR THE PARTY WAS ACTUALLY TOLD OF THE POSSIBILITY OF SUCH LOSS. ARTICLE 8 8.1 TERMINATION Either party may pre-terminate this Agreement for its convenience by giving at least sixty (60) calendar days written notice to the other party. Either party may pre-terminate this Agreement with at least thirty (30) calendar days prior written notice if a party commits any material breach of the terms of this Agreement which cannot be remedied, or if capable of being remedied, fails to remedy the same within thirty (30) calendar days from receipt of a written request to do so. The parties agree that termination under this provision shall be resorted to only when facts have been found to exist that, considering all circumstances and the parties’ mutual interests, the contractual relationship appears to be fundamentally disturbed in a way that the party giving notice of termination can no longer be reasonably expected to continue this Agreement. 8.2 8.3 Either party may pre-terminate this Agreement immediately upon notice in the event that: a. a party enters into liquidation or any arrangement with its creditors, appoints an administrative receiver over any or all of its assets or suffers any similar action in consequence of debt other than for the purpose of amalgamation or reconstruction; a party becomes subject to a petition for voluntary or involuntary bankruptcy or undergoes a suspension of payments or general rescheduling of debt; a party suffers execution against a material or substantial portion of its properties in consequence of debt; a party becomes unable to pay its debts as they fall due; a party ceases to trade. TRADEMARKS b. c. d. e. ARTICLE 9 ARTICLE 10 10.1 INDEPENDENT CONTRACTOR Nothing herein shall be construed as creating an employer-employee relationship between the parties, it being expressly understood and acknowledged that the relationship of the _______________to ____________is that of an independent contractor. Neither shall anything herein be construed as creating an agreement of partnership between the parties. 10.2 Furthermore, the ________________shall hold __________________ free and harmless from any claim or suit for unpaid wages, salaries or benefits due its employees or laborers rendering Services hereunder. In the event _____________ is made liable for such claims or suit, the ______________shall reimburse ________________ for all sums which it may be held liable, plus a reasonable amount as attorney’s fees and cost that ______________may incur in the course of protecting itself or settling such claims or suit. ARTICLE 11 NON-ASSIGNMENT Either party shall not sub-contract, assign, transfer, or otherwise dispose of its rights and/or obligations under this Agreement without the prior written consent of the other party. The other party shall not unreasonably withhold such consent. Any purported sub-contract, assignment, transfer, or disposition of the whole Agreement or any part thereof without such prior consent shall be void and of no effect. ARTICLE 12 NON-WAIVER ARTICLE 13 CONFIDENTIAL INFORMATION and contents of its work, systems, equipment, shareholders, investors, contracts, agreements, properties, the nature of documents/parcels delivered and received, the identity of the sender(s) and recipients of the delivered and received documents/parcels and other information similar to the foregoing, in the course of the performance of the work hereunder except as are specifically indicated by_________________-as being for release to the general public. The parties expressly understood and acknowledged herein that all other information, whether relevant to this Agreement or not, are considered confidential and therefore entitled to the protection of this paragraph. This Clause shall survive the termination of the Agreement. 13.2 Neither party can make any public release or announcement concerning this Agreement, or the Services without the prior written consent of the other party. ARTICLE 14 CONFLICT OF INTEREST AND DISCLOSURE ARTICLE 15 GIFTS, INDUCEMENT AND AWARDS ARTICLE 16 NOTICES Any notice required to be given hereunder by either party shall be in writing, and shall be served by sending the same by registered mail, or by facsimile transmission to the other party at an to be specified from time to time in writing. Any notice sent by registered mail shall be deemed to have been served five (5) working days after dispatch and any notice sent by facsimile transmission shall be deemed to have been served on the date of the transmission. “ All notices, requests, consents and other documents (“Notices”) shall be deemed served or given: If personally served and duly accepted and signed by the party’s authorized representative, at the address of the party to whom the Notice is given between the hours of 8:00 a.m. and 5:00 p.m. on any business day, then in such case, at the time the Notice is duly received. A. B. If sent by facsimile, with transmission confirmation receipt, then in such case when successfully transmitted during business hours, or if not during business hours, then when business hours next commence; C. If sent by ordinary mail or by registered mail, registry return card requested or by courier, then upon three (3) business days after mailing. Any party may change its address for receipt of Notices at any time by giving prior written notice thereof to the other party. The duly authorized representative of that party may sign any Notice given under this Contract on behalf of any party. Either party may change the manner by which Notice is to be given provided that the other party was advised of such change in writing, duly received.” ARTICLE 17 LEGAL CAPACITY Each of the parties hereto represents and warrants that it has full power and authority to enter into and perform its obligations under this Agreement. All necessary actions, consents, and approvals for the execution of this Agreement have been taken and/or obtained. ARTICLE 18 SEVERABILITY If any of the provisions of this Agreement shall be adjudged invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render this Agreement unenforceable, but rather this Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the right and obligations of the parties shall be construed and enforced accordingly; provided that,------. ARTICLE 19 OPERATING MANUAL, CHANGES AND AMENDMENTS TO THIS AGREEMENT 19.2 Changes required by operations will be made by way of written supplements to the Operating Manual. Such written supplements shall take the form of correspondence signed by both parties. 19.3 Changes to the Terms and Conditions of supply shall be undertaken by way of amendments to the Agreement. 19.4 The Parties agree to reasonably consider all changes duly proposed by the other party in a co-operative, diligent and expeditious manner. The parties shall agree on who shall bear any costs associated with making changes to their terms of operation or the terms of supply prior to entering into such changes. 19.5 The Operating Manual, its supplements and changes thereto shall have the same force and effect as this Agreement. In the event of conflict between the Operating Manual and this Agreement, the Operating Manual shall prevail. ARTICLE 20 ESCALATION agreement and/or resort to litigation, in accordance with this Agreement. ARTICLE 21 21.1 TERM AND EXCLUSIVITY Initial Term - This Agreement shall be for an initial term of two (2) years (the “Initial Term”), commencing from ___________________ (“Effective Date”) and may be renewed thereafter upon agreement of the parties. 21.1.1 This Agreement shall commence from the Effective Date and shall continue to be valid and in force for the entire duration of the Initial Term. This Agreement shall be deemed automatically renewed and shall continue to be in force on a month to month basis, unless otherwise pre-terminated by either of the Parties pursuant to Article 8 hereof. 21.2 Exclusivity -_______________ shall not within the territory and during the term of this Agreement perform the same or similar services as that required under this Agreement for any other Philippine telecommunications company or for any exclusive distributor of any other Philippine telecommunications company. ARTICLE 22 22.1 INTERPRETATION The laws of the Republic of the Philippines shall govern the construction, interpretation and performance of this Agreement. The Agreement shall not be construed in favor of or against any party, but shall be construed equally as to both parties. 22.2 ARTICLE 23 VENUE Any dispute arising from the execution of, or in connection with, this Agreement shall be brought before the proper courts of Mandaluyong City, Metro Manila, to the exclusion of all other courts. IN WITNESS WHEREOF, the parties hereto set their hands this __ day of ____ 2005 at Mandaluyong, Metro Manila