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Logistics Services Agreement- CLEAN DRAFT.docx

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LOGISTICS SERVICES AGREEMENT
This Logistics Services Agreement (the “Agreement”) is entered into this .......day
of .......
2
1) Discharging the vessel
Scope: At the port of Samchunpo
Type: Port, Crane.
2) Warehouse maintenance
Scope: Unloading, ...
3
set forth in Artice 3.
1. Commercial name, address, telephone number (including fax number) and
person in charge of the ...
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Logistics Services Agreement- CLEAN DRAFT.docx

  1. 1. 1 LOGISTICS SERVICES AGREEMENT This Logistics Services Agreement (the “Agreement”) is entered into this .......day of ..............., 20_,_, by and between: 1. PT ______________, a limited liability company duly established and existing under the laws of the Republic of Indonesia, having its address at ............................ (the Customer) and 2. ______________, Ltd., a company duly established and existing under the laws of the Republic of Korea, having its address at .................................................. ( ‘ X ‘) The Customer and ‘ X ‘ are collectively hereinafter referred to as the “Parties” and separately as the “Party”. WITNESSETH WHEREAS, ‘ X ‘ intends to provide services to Customer as set forth herein. WHEREAS, Customer intends to use the said services as set forth herein: NOW THEREFORE, the Parties hereto agree as follows. Article 1 (Purpose) The purpose of this Agreement is to confirm the terms and conditions for the entrustment of the logistics services by the Customer to ‘ X ‘, and the Customer and ‘ X ‘ shall fulfill their respective rights and obligations in good faith and with due care under this Agreement. Article 2 (Scope of Services) The services to be provided by ‘ X ‘ under this Agreement are including but not limited to discharging the vessel, warehouse maintenance and domestic transportation services as follows:
  2. 2. 2 1) Discharging the vessel Scope: At the port of Samchunpo Type: Port, Crane. 2) Warehouse maintenance Scope: Unloading, Loading and Storage to Warehouse in the port of Samchunpo Type: Warehouse, Loader. 3) Transportation Scope: The port of Samchunpo to ooo power plant Type: Dump Cargo. (are hereinafter referred to as the “Services”) Article 3 (Subject Cargoes and Area) (1) The cargoes subject to this Agreement shall be as set forth in Article 2 upon separate consultation between the Parties. (2) The countries and regions subject to this Agreement shall be as set forth in the attachment as an inseparable part of this Agreement of this Agreement as Standards for Computation of Fees (“Attachment”). (3) In the event the Customer intends to change any cargoes, countries and/or regions subject to this Agreement, the Customer shall reach a separate written agreement regarding such change with ‘ X ‘ in advance. (4) In the event the Customer changes any of the cargoes, countries and/or regions subject to this Agreement without prior written agreement with ‘ X ‘ which results in damages/loss to the Customer and/or a third party, ‘ X ‘ shall not be liable to bear any of such damages/loss except for due care its Services pursuant to this Agreement. Article 4 (Obligations) (1) In consideration of ‘ X ‘’s Services, the Customer shall pay to ‘ X ‘ the respective fees as set forth in the Attachment. (2) The Customer shall send prior notice of the following to ‘ X ‘ within the timeframe
  3. 3. 3 set forth in Artice 3. 1. Commercial name, address, telephone number (including fax number) and person in charge of the consignee; 2. Transport-related information such as the destination and place of delivery, for the cargoes; 3. Loading (onto vehicle or vessel) schedule/date; 4. Basic information about the cargoes such as the respective name, size, quantity, weight and volume, and the conditions for carriage/transport; 5. Precautions in handling of the cargoes such as dangerous nature of the cargoes,; 6. Information necessary for inspection and customs for the cargoes; 7. Any other necessary information for the carriage/transport. (3) ‘ X ‘ shall exert its best efforts to ensure that the Customer’s cargoes arrive in its place of destination in a prompt, accurate and timely manner. (4) ‘ X ‘ shall build and operate the computer network in order to enable the Customer to confirm the information provided by the Customer and the transport status of the cargoes on a real-time basis. (5) ‘ X ‘ shall faithfully comply with all the applicable laws both in Indonesia and/or Korea, regulations and the orders of the administrative authorities in relation to the performance of the Services. Article 5 (Term and Condition for Renewal) (1) The term of this Agreement shall be from ....................... to ...................... The term shall be automatically renewed under identical terms and conditions hereunder for the successive ..................... year-terms unless otherwise notified by a Party hereto in a separate written notice to the other at least ..................months before the expiry date (provided, the fees shall be set forth pursuant to separate agreement). (2) In the event the term of this Agreement is extended by the Parties’ agreement or automatically as set forth herein, the Parties shall confirm the standards for computation of the fees relating to the extended period at least by ....................... days before the expiry date of this Agreement. In the event no agreement is reached within the timeframe set forth above in relation to the respective standards for computation of such fees, the validity and enforceability of automatic renewal shall be extinguished.
  4. 4. 4 Article 6 (Fees) (1) The specific amount of fees payable by the Customer to ‘ X ‘ shall be set forth in the Attachment. (2) ‘ X ‘ shall compute and invoice the Customer for the respective monthly fees based on the Attachment, and the Customer shall pay the invoiced fees within 60 (sixty) days after the date of the invoice. Provided, in the event the due date is a non- banking day, the payment shall be due on the day immediately preceding the due date. In the event of delay in the payment, default interest rate of 6% (six percent) per annum shall be accrued in addition to the invoice amount until the actual date of the payment. (3) In the event the payment of fees is not made within 60 (sixty) days after the date of the invoice, ‘ X ‘ may request the Customer to substitute the payment with the Customer’s cargoes stored in ‘ X ‘’s distribution center and the Customer shall accept such request. Provided, in the event the amount substituted with the value of the Customer’s cargoes falls short of the actual outstanding fees due from the Customer to ‘ X ‘, ‘ X ‘ shall be entitled to seek payment of the remaining balance to the Customer. Article 7 (Demurrage) (1) The Parties shall mutually cooperate to the extent possible in order to prevent any demurrage/detention. (2) In the event ‘ X ‘ bears demurrage as against the owners, carriers/transporters or the party in possession of the equipment necessary for the transport/carriage, or bears any detention fees with respect to the vehicles and/or other equipment, standing by, the Customer shall bear such demurrage and detention fees. (3) Method of computation for layday, demurrage, detention fees – ................. Article 8 (Bearing of Costs) Any additional costs (dead freight, demurrage) accrued due to a change or cancellation in the subject goods, destination, transport/carriage route, transport/carriage method, loading
  5. 5. 5 date (onto vessel or vehicle), based on the Customer’s circumstances shall be borne by the Customer. Article 9 (Details and Packaging of Cargo) (1) The Customer guarantees the accuracy of the details (number, weight, name, nature, of the cargoes) set forth in the transport documents. (2) In the event the Customer, its employee or agent handles the packing or loading of the cargoes, ‘ X ‘ shall not be liable for any loss/damages resulting from defective packing, loading except for due care of its Services pursuant to this Agreement. Article 10 (Damages) (1) In the event Customer sustains over loss (referenced by attachment) which are caused by delay in the delivery of cargo, loss to cargo, due to a reason attributable to ‘ X ‘, ‘ X ‘ shall compensate the Customer for the resulting of such loss/damages. (2) ‘ X ‘ shall be exempted from liability in the event of any failure or delay in the delivery of cargo, loss of and/or damage to cargo, to the extent such event is caused by a force majeure beyond the control of the Parties such as an Act of God (including typhoon, flood, earthquake, tsunami), war, guerilla warfare, civil unrest, riots, terrorist act, piracy, labor strike or collective refusal to transport or deliver cargo by port workers union or transportation works union, traffic jam, suspended supply of electricity or water, amendment of relevant law/regulation or government action. (3) In the event ‘ X ‘ bears liability under Article 10 (1) above, regardless of the ground for claim, the said liability of ‘ X ‘ shall be borne in accordance with the terms on the reverse of the transport document (bill of lading, and other relevant document) issued by ‘ X ‘ or the carrier designated by ‘ X ‘ and/or with the compulsory laws/treaties applicable in connection with the relevant carriage section. (4) Notwithstanding the ground for the claim, if no transport document has been issued in connection with the logistics service under this Agreement or if the carrier’s liability provision on the reverse of the transport document and/or under law/treaty does not apply to ‘ X ‘ for any reason whatsoever, ‘ X ‘’s liability for the claim shall be borne in accordance with the liability amount set forth in the Convention
  6. 6. 6 for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999) in case of air carriage, and the latest FIATA standard terms and conditions in case of carriage by a means other than air carriage, respectively. (5) In the event of a claim against ‘ X ‘’s employee, agent, contractor and/or sub- contractor (collectively, “‘ X ‘’s Interests”), ‘ X ‘’s Interests shall be entitled to the same defense available to ‘ X ‘ hereunder and the liability of ‘ X ‘’s Interests shall be subject to the liability provisions set forth in Articles 10 (3) and 10 (4) herein. (6) In anticipation of an accident that may occur during the carriage to be conducted hereunder, Customer shall subscribe to cargo insurance and liability insurance policies for any and all cargoes to be carried under this Agreement. In such instance, waiver of subrogation claim against ‘ X ‘ and ‘ X ‘’s Interests should be included as part of the terms in the insurance contracts. Customer shall be compensated for any loss/damages that may occur during the performance of carriage under this Agreement by way of receiving insurance proceeds under the said insurance cover. Provided, ‘ X ‘ shall pay to Customer the additional insurance premium resulting from the waiver of the subrogation claim set forth above. Article 11 (Termination) (1) In the event of any of the following events to a Party hereto, the other Party may immediately and unilaterally terminate this Agreement by sending a written notice to the Party as follows: 1. Attachment/seizure, provisional attachment/seizure, other preservative and/or compulsory enforcement measures against a party’s major property/assets; or 2. Application for or commencement of bankruptcy, restructuring or any other insolvency proceeding analogous thereto; or 3. Material deterioration of financial condition manifested by bank’s dishonoring of a check or promissory note issued by the party and/or the party’s failure to make payment when due; or 4. Inability to perform this Agreement due to corporate split, merger, closure of business; or 5. Rendering of administrative order such as suspension of business which makes a party to deem it difficult to perform this Agreement; or
  7. 7. 7 6. Assignment of or establishment of security on part or all of the respective rights under this Agreement to a third party without the prior written consent of the other Party; or 7. Terminated by mutual agreement of the Parties. (2) In the event a Party hereto breaches this Agreement and is notified by the other Party but fails to rectify the breach within ................days after the notice, then the other Party may immediately terminate/cancel this Agreement thereafter. Article 12 (Acceleration) In the event this Agreement is terminated due to expiry or cancellation as stipulated in the Article 11 above, any and all respective obligations owed by the Customer or ‘ X ‘ to each other shall immediately become due and payable unless otherwise agreed by the Parties. Article 13 (Confidentiality) (1) In the event ‘ X ‘ requests information and/or other data necessary for ‘ X ‘ to perform its obligations hereunder, the Customer shall provide them accordingly. (2) Each of ‘ X ‘ and the Customer shall use any of the industry secret, technical information and data of the other Party obtained in the course of executing and performing this Agreement (the “Confidential Information”) solely for the purpose of performing this Agreement and shall not disclose the Confidential Information to a third party without the consent of the other Party. Each Party hereto shall ensure that its respective employees, officers and affiliated parties are also bound by the identical obligation regarding the Confidential Information set forth herein. (3) Each of the Customer and ‘ X ‘ shall return any of the Confidential Information in its possession to the other Party. In the event such return is not possible, each Party shall destroy the relevant Confidential Information upon obtaining the written consent of the other Party.
  8. 8. 8 Article 14 (Prohibition on Assignment and Security) (1) Neither the Customer nor ‘ X ‘ may assign part or all of its respective rights and obligations under this Agreement to a third party without the prior written consent of the other Party. (2) Neither the Customer nor ‘ X ‘ may establish security over any and all of its respective rights under this Agreement to a third party without the prior written consent of the other Party. Article 15 (Security) (1) ‘ X ‘ shall submit to the Customer within 5 (five) working days since the signing date of this Agreement a performance guarantee in the amount of KRW ..................... (.................................. Korean Won) as issued by ..............................., Ltd., as collateral against the ‘ X ‘'s liability to the Customer pursuant to this Agreement. (2) In order to secure the payment of the fees under this Agreement, the Customer shall implement at least one of the following: 1. Subscribe to performance guarantee in the amount of KRW .......................... (.............................................. Korean Won) as issued by .........................., Ltd. and submit the guarantee bond to ‘ X ‘; or 2. Deposit (without interest) into a reserve account an amount corresponding to the guarantee set forth in Article 15 (2) 1 above; or 3. Upon confirming the validity/enforceability of establishing security over real estate and subject to prior consent of ‘ X ‘, establish kun-mortgage in favor of ‘ X ‘ over the respective real estate for the maximum mortgage amount of 130% (one hundred thirty percent) of claim. (3) In the event the Customer fails to fulfill its obligation by way of failing to pay the outstanding fees pursuant to this Agreement, ‘ X ‘ shall be entitled to immediately enforce the said security interest established in is favor as set forth in Article 15 (2) above. Provided, in the event the secured amount is reduced as a result thereof, the Customer shall immediately supplement the amount of shortfall by establishing additional security interest corresponding to the amount of reduction.
  9. 9. 9 Article 16 (Governing Law) This Agreement shall be governed by the laws of Korea. Article 17 (Dispute Resolution) Any dispute between the Parties arising under, out of or in connection with this Agreement shall be resolved by mutual consultation and final written agreement based on principle of good faith. Provided, in the event the dispute cannot be resolved by such consultation within 30 (thirty) days since the date the first meeting is conducted by the Parties, the Parties agree that they shall irrevocably submit to the exclusive jurisdiction of the ..................................... Article 18 (Miscellaneous) (1) Matters that have not been regulated or insufficiently provided in this Agreement will be discussed in good faith by the Parties and will be set out in a written document that will be signed by the Parties. (2) Any and all attachments, addendum, and/or amendment to the Agreement referred herein shall be regarded as an integral and inseparable part of this Agreement. (3) This Agreement and any attachment referred herein constitutes the entire agreement between the Parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreement between the Parties with respect thereto. (4) In the event that any provision or part of a provision in this Agreement shall for any reason be determined by any court or arbitral tribunal to be illegal, invalid or unenforceable, then the Agreement referred herein shall not be affected and/or the remaining provisions and other parts of the provision shall not be affected, impaired or invalidated and shall remain in full force and effect and shall continue to be binding upon the Parties. The Parties shall, in any such event, agree on new provision(s) that would replace such provision(s). (5) This Agreement may be executed in any number of counterparts and a Party may execute this Agreement by signing any counterpart. All counterparts shall together constitute and take effect as one and the same instrument.
  10. 10. 10 IN WITNESS WHEREOF, the Parties have made this Agreement or their authorized representatives lawfully signed or sealed this Agreement and each retains a copy thereof. The Customer PT ______________ ________________________________ Name: ................................. Title: President Director ‘ X ‘ ______________., Ltd. ________________________________ Name: ................................ Title: Representative Director
  11. 11. 11 Attachment Standards for Computation of Fees 1. The table of Unit Prices Division Unit Price Remarks Discharge KRW per ton ............. Shuttle KRW per ton ............. Distance: within 500 m Un/loading, Maintenance KRW per ton ............. Included Unpacking Domestic Transport KRW per ton ............. Dump(W/H→Samchunpo PP) KRW per ton ............. Hopper(W/H→Hadong PP) Storage KRW per ton/day ............. Free Time: 30 days 2. Conditions: A. Extra VAT. B. Extra taxes and the Public utilities charges (Warfage KRW ........ per ton) C. Included extra charge (Night premium, etc) D. Discharging Rate shall be granted ........... M.ton per day E. Recognized Loss; Discharge 0.3% Storage and transport 0.2% (Samchunpo PP), 0.3% (Hadong PP)
  12. 12. 12 F. Other operations not expressly herein shall be discussed separately by the Parties. G. Except as stipulated herein, all the taxes arising out or in connection with this Agreement shall be borne by each applicable Party according to the applicable tax laws.

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