CONSULTANCY AGREEMENT

 

THIS AGREEMENT is made the                           day of                                     

 

BETWEEN 

 

…….. (COMPANY NO.: ), a company duly incorporated in Malaysia with its place of business at …… (hereinafter referred to as the “Main Contractor”) of the one part.

 

AND

 

…….(NRIC NO.:                              ) having an address at ….. (hereinafter referred to as the “Consultant”) of the other part.

 

WHEREAS:-

 

A.                The Main Contractor is a company incorporated in Malaysia under the Companies Act, 1965 and has been registered as Class A contractor with …. among others and is involve, inter alia, in the business of civil engineering, construction and various other related activities including construction of building of various types. 

B.                 The Consultant possesses necessary or competent skill and technical know-how pertaining to development of land and construction of buildings.

C.                 The Main Contractor is desirous to submit various proposals to … [hereinafter referred to as “ MAIWP”] to undertake a project identified as “JOINT VENTURE IN PROPOSED DEVLOPMENT ON …….” (hereinafter referred to as “the Project”) on a direct negotiation basis. 

D.                The Main Contractor is desirous to engage the service of the Consultant to deal and/or liaise with and assist the Main Contractor’s architect, surveyor, engineer and all other relevant parties and/or representatives (hereinafter referred to as “the Main Contractor’s Employees”) to prepare various proposals of the Project for submission to MAIWP and to deal and/or liaise and/or negotiate with MAIWP for the abovesaid purpose and towards successful award of the Project to the Main Contractor.

E.                 The Consultant hereby agree to be appointed by the Main Contractor and/or its nominees for the abovesaid purpose and the parties hereto agree to regulate their respective rights, obligations and liabilities in accordance with the terms and conditions hereinafter contained.

 

NOW THIS AGREEMENT WITNESSETH as follows:-

 

1.         AGREEMENT

1.1       APPOINTMENT

(i)                 The Main Contractor and/or its nominees hereby appoint the Consultant and the Consultant hereby accept the appointment by the Main Contractor and/or its nominees to be its independent consultant to diligently deal, liaise and/or negotiate with MAIWP towards successful award of the Project to the Main Contractor and/or its nominees.

(ii)               The appointment of the Consultant shall become effective as of the date of execution hereof and shall be completed when all duties and obligations of the parties provided in this Agreement are fully discharged, unless this Agreement is sooner terminated pursuant to Clause 11 hereof.

(iii)             The Consultant hereby agree that subject to Clause 11 hereof and/or pending the award of the Project to the Main Contractor and/or its nominees, the parties shall not terminate this Agreement, unless there is a breach of any of the terms and conditions of this Agreement by either parties.

 

1.2       EXCLUSIVITY

The parties hereby agree that the negotiation for the Project shall be exclusively made for this Agreement, whereby the Consultant agrees with the Main Contractor and/or its nominees that upon execution of this Agreement, the Consultant shall not whether on its own or jointly with any third party enter into any negotiation or arrangement to provide consultancy services to any third party or parties in respect of the Project but shall work and cooperate closely with the Main Contractor exclusively to obtain the  award of the  Project.

2.         DUTIES AND OBLIGATIONS OF THE CONSULTANT

2.1       The Consultant undertake to provide the technical know-how and necessary skill to assist the Main Contractor and the Main Contractor’s Employees to prepare various proposals of the Project for submission to MAIWP and to deal and/or liaise and/or negotiate with MAIWP for the abovesaid purpose and towards successful award of the Project to the Main Contractor.

2.2       Upon submission of each of the proposal of the Project to MAIWP, the Consultant shall undertake to act for and on behalf of the Main Contractor to deal, liaise and/or negotiate with MAIWP for the successful award of the Project.

2.3       The Consultant shall carry out and/or perform its duties and obligations at all material times without causing any damage to the reputation and/or image of the Main Contractor.

2.4       In furtherance to the above, the Consultant shall fully indemnify and hold the Main Contractor harmless against any loss, cost and/or damages of any kind or nature whatsoever resulting from wilful default, gross negligence or lack of good faith on the part of the Consultant in performing its obligation and duties contained herein.

2.5       The Consultant hereby undertake to assist the Main Contractor and deal and/or liaise with the Main Contractor’s Employees in the preparation of costing of the Project upon issuance of the letter of offer and/or award by MAIWP (if applicable).

2.6       The Consultant further undertake to execute or procure to be executed all such documents and do or procure to be done all such acts and things as may be necessary to successfully obtain the award of the Project and to give full effect to all the provisions of this Agreement.

 

3.         CONSULTANCY FEE

3.1       In consideration of the Consultant performing its duties and obligations provided for in this Agreement, the Main Contractor and/or its nominees hereby agrees to pay the Consultant Ringgit Malaysia[  ] only by way of cash payment (hereinafter referred to as the “Consultancy Fee”) upon execution of  a formal Agreement between the Main Contractor and MAIWP, with terms and conditions that are acceptable to the Main Contractor and upon the Consultant fully discharging all other duties and obligations herein;

3.2       In furtherance to the above, the parties hereby agree that the Consultant shall be solely liable for all taxes, levy, duties and associated cost arising out from and/or in connected to the Consultancy Fee, whereby the Consultant shall fully indemnify and hold the Main Contractor harmless against any loss, cost, and/or damages of any kind or nature whatsoever resulting from wilful default, gross negligence or lack of good faith on the part of the Consultant in performing its obligations and duties contained in this Clause;

3.3       For the avoidance of any doubt, the parties hereby agree that in the event that the Project is not awarded to the Main Contractor and/or its nominees for whatsoever reasons and/or events stipulated in Clause13.1 (i) to (iv) herein, the Consultant shall not be entitled to the Consultancy Fee or any part thereof, as provided for in Clause 3.1 above, unless otherwise agreed by the Main Contractor.

 

4.         WARRANTIES AND REPRESENTATIONS

4.1       The parties hereby warrant and represent to each other that entering into this Agreement by the parties hereto, does not violate any legal provisions, statutes, existing laws, agreements, rights and/or obligations existing between the parties hereto, and/or any other person, firm or corporation.

 

5.         INDEMNITY

5.1       The parties hereby covenant and agree that they shall fully indemnify each other against all claims, losses, expenses and/or damages of any kind or nature whatsoever sustained by the other contracting party as a result of breach of any of the warranties, representations, covenants, terms and conditions of this Agreement.

 

6.         MUTUAL COVENANT

6.1       In entering into this Agreement the parties recognizes it is impracticable to make provisions for each and every contingency that may arise in the course of the performance thereof, whereby the parties hereto shall at all times exercise their rights, powers and discretions in good faith, fairness and without detriment to the interest of the parties hereto and shall use their best endeavours to support and implement all reasonable proposals or request by each other from time to time to ensure that full effect be given to the terms and conditions of this Agreement in the spirit in which it was agreed.

 

7.         CONFIDENTIALITY

7.1       The parties hereto undertake to keep confidential and to procure that their respective employees and/or agent shall keep confidential the terms and conditions of this Agreement, unless with the order of the court of competent jurisdiction.  The obligation of the parties hereto shall continue without limit in point of time provided nothing contained in this Clause shall prevent any party to this Agreement from disclosing this Agreement in connection with legal proceeding arising therefrom.

 

8.         ASSIGNMENT, SUCCESSORS AND ETC

8.1       Except as otherwise provided for herein, this Agreement and all rights and/or obligations hereunder are personal to the parties hereto and no party hereto shall assign or attempt to assign any such rights or obligations without the prior written consent of the other parties.  In the event that the parties mutually agreed to exercise such rights, this Agreement shall be binding on and inure for the benefit of the respective successors-in-title and permitted assigns of the parties hereto.

 

9.         NO PARTNERSHIP

9.1       This Agreement shall not create any form of partnership between the Main Contractor and the Consultant and that nothing in this Agreement shall be construed to make any party hereto the representative or agent of the other party save as is provided in the Agreement, nor shall any party be liable for or bind by any act or omission by the other party.

 

10.       GOVERNING LAW

10.1     This Agreement shall be governed and construed in all respect in accordance with the law of Malaysia and the parties hereto shall submit to the jurisdiction of the Malaysian court.

 

11.       TERMINATION

11.1     In any such of the following event, this Agreement shall be deemed terminated in its entirety, unless otherwise agreed by the parties hereto:-

(i)         The Project is tendered by MAIWP to third parties other than the Main Contractor and/or its nominees; or

(ii)        All relevant proposals submitted by the Main Contractor and/or it nominees is rejected by MAIWP; or

  (iii)       The Project is successfully awarded by third parties other than the Main Contractor and/or its nominees; or 

(iv)       The project is discontinued, abandoned and/or suspended by MAIWP; or 

(v)        If any party hereto (“the defaulting party”): 

(a)        commits any breach of its obligation under this Agreement and fails to take all necessary action to remedy such breach within thirty (30) days from the service of a written notice by the defaulting party or the other party hereto (“the non-defaulting party”) complaining of such breach; or

(b)        dies or is pronounced to be insane or of unsound mind by a Court of competent of jurisdiction;                                                                                               

(c)        bankrupts or goes into liquidation (for any reasons) otherwise than for the purpose of reconstruction or amalgamation or an order of court is made for its compulsory liquidation; or 

(d)       enters into any composition or arrangement with its creditors; or 

(e)        has a Receiver appointed over the  whole or any part of its undertaking or assets; or 

(f)        ceases to carry on business;

11.2     Survival of rights, duties and obligations and/or termination of this Agreement for any cause shall not release any party hereto from any liability which at the time of termination has already accrued or which may thereafter accrue in respect of any act or omission prior to such termination.

 

12.       TIME 

12.1     Time whenever mentioned in this Agreement shall be of the essence.

 

13.       NOTICE

13.1     Any notice or demand or other communication required to be given by one party to the other under or in connection with this Agreement shall be in writing and shall be sufficiently served if delivered personally by hand and/or sending the same by registered post to the other party at their addresses stated herein and shall be deemed to have been served and received if deliver by hand at the time of delivery or if send by registered post three (3) business days after posting thereof.

 

14.              COSTS

14.1     All costs, legal fees and other expenses including stamping fee incurred in connection with the preparation and execution of this Agreement shall be borne solely by the Consultant.

 

15.       HEADING

15.1     The heading of this Agreement is inserted for the purpose of convenience and shall not effect the construction of this Agreement.

 

16.       INTREPRETATION

16.1     In this Agreement when the context so permits word importing the masculine gender shall include the feminine and neuter gender and the singular to include the plural and vice versa.

 

17.       ENTIRE AGREEMENT

17.1     The Agreement set out the entire agreement and understanding between the parties hereto as to the subject matter hereof and supersedes all prior agreement between then whether express or implied.

 

18.       SEVERABILITY

18.1     Each of the provisions of this Agreement is severable and distinct from the others and if any time one or more of such provision is or become invalid, void, illegal or unenforceable, the effectiveness and validity of the remaining clauses of this Agreement shall in no way be affected.

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IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seal the day and year first above written.