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Management Services Agreement

Management Facility Services Agreement

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 This Management Facility Services Agreement involves

DSWISS INC | DS ASIA CO, LTD | DSWISS (HK) LIMITED

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Title: MANAGEMENT SERVICES AGREEMENT
Date: 8/15/2016

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CONFIDENTIAL

 

MANAGEMENT SERVICES AGREEMENT

 

BETWEEN

 

DSWISS (HK) LIMITED

 

AND

 

DS ASIA CO., LTD

 

JUNE 27, 2016

 

 

 

 

MANAGEMENT SERVICES AGREEMENT

 

This MANAGEMENT SERVICES AGREEMENT (“ Agreement ”) is entered into as of June 27, 2016 (the “ Effective Date ”), by and between the following (each a “ Party ” and together the “ Parties ”):

 

 

(i)

DS ASIA CO., LTD (“DSAC”)

 

 

 

 

 

Registered Address: 268/24  Soi Tao Pun Junction, Pracharat Rd., Bangsue,  Bangkok 10800 Thailand

 

 

 

 

(ii)

DSWISS (HK) LIMITED. ("DSHK")

 

 

 

 

 

Registered Address: Rm 405, 4/F Energy Plaza, Tsim Sha Tsui East, Kowloon, Hong Kong

 

RECITALS

 

This Agreement is entered into with reference to the following facts:

 

A. DSAC is a limited liability company incorporated under the laws of Thailand. DSAC is 49% owned by DSHK, 41% owned by Ms. Weraya Limpasuthum and 10% owned by Ms. Kanittha Tharanut (collectively, the “ Nominee Shareholders ”). DSAC is engaged in trading business in Thailand (together with any expansion, contraction or other change to the scope of that business as contemplated by this Agreement, the “ Business ”).

 

B. DSHK is a limited liability company incorporated under the laws of Hong Kong. DSHK is 100% owned by DSwiss Holding Limited., a Seychelles company, and subsequent owned by DSwiss Inc., a Nevada company. DSHK has executive and financial management experience and capability relevant to the Business.

 

C. DSAC desires to engage DSHK to provide management, financial and other services in connection with the operation of the Business, and DSHK desires to provide those services to DSAC. The Parties now desire to memorialize the terms and conditions pursuant to which those services will be provided by DSHK to DSAC, and pursuant to which DSAC will compensate DSHK therefor.

 

NOW, THEREFORE , in consideration for the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Parties, and through friendly consultation, under the principle of equality and mutual benefits, in accordance with the relevant laws and regulations of Hong Kong, the Parties agree as follows:

 

AGREEMENT

 

1. Management Services . During the Term of this Agreement, DSHK will identify and provide to DSAC executive and financial management personnel in sufficient numbers and with expertise and experience appropriate to provide the services identified in Appendix I , as it may be amended from time to time by written agreement of the Parties (the “ Management Services ”), and will provide those Services to DSAC. DSAC will take all commercially reasonable actions to permit and facilitate the provision of the Management Services by DSHK and accept those Services.

 

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2. Compensation to DSHK . As compensation for providing the Management Services, DSHK will be entitled to receive a fee (the “ Management Services Fee ”), upon demand, equal to one hundred percent (100%) of the annual Net Profit of DSAC during the Term of this Agreement. At the sole discretion of DSHK, the Net Profit of DSAC shall be calculated through the end of the immediately preceding fiscal year of DSAC, and paid by DSAC to DSHK within sixty (60) days of demand therefor. Until and unless such demand is made, the Management Services Fee is not due and payable to DSHK and it is the intent of the Parties that the Fee represents shall not be accrued by DSAC. Any dispute between the Parties concerning any calculation or payment under this Section 2 will be resolved pursuant to the dispute resolution provisions of Section 15 .

 

For the purpose of this agreement, Net Profit means the net profit of DSAC for the period immediately preceding the date for calculation of Net Profit set out in the Agreement, calculated as follows: (a) all revenue or income accrued by DSAC, less (b) all costs, accrued expenses and taxes paid or accrued and payable.

 

3. Ad Hoc Payment . The Parties acknowledge that in order to provide the Management Services under this Agreement, DSHK may incur expenses and costs from time to time, and the Parties further agree that DSHK may request an ad hoc payment every calendar quarter and such payment may be credited against DSAC’s future payment obligations of the Management Services Fee.

 

4. Credit for Amounts Paid Under Other Agreements . DSHK and DSAC are or may be parties to certain other agreements, such as the Technical Service Agreement, some or all of which may require certain payments to be made by DSAC to affiliates and/or designee of DSHK in consideration for services, equipment or other items of value provided by affiliates and/or designee of DSHK. The Parties agree that any and all such amounts may be (a) separately paid by DSAC and accordingly counted as expenses of DSAC, reducing DSAC’s Net Profit; or (b) included in the aggregate Net Profit of DSAC and not separately paid to DSHK.

 

5. Interest Penalty . If any amounts due and payable under this Agreement are not paid when due, interest will accumulate on such amounts at the rate of four percent (4%) per annum until paid. This interest penalty may be reduced or waived by the Party entitled to receive it in light of actual circumstances, including the reason for any delay in payment.

 

6. Guarantees . To the extent and only to the extent permitted by applicable law, each Party agrees to act as a guarantor of the indebtedness of the other, as and only as follows:

 

 

(a)

DSAC will not incur any indebtedness to any Person not a party to this Agreement without the advance written consent of DSHK in the exercise of its obligations to provide comprehensive Management Services under this Agreement.

 

 

 

 

(b)

DSHK may, in the exercise of its reasonable business judgment, incur indebtedness to any Person not a party to this Agreement, provided that any such indebtedness may only be in connection with the Business. If DSHK incurs any indebtedness as contemplated by this Section 6(b), DSAC will act as a guarantor of that indebtedness.

 

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7. Exclusivity . During the Term of this Agreement, (a) DSAC will not contract with any other Person to provide services which are the same or similar to the Management Services. For purposes of this Section 7 only, “Person” does not include any Affiliate of either Party, including other entities that may become affiliated with either Party.

 

8. Operation of Business . During the Term of this Agreement:

 

 

(a)

The DSAC will ensure that:

 

 

 

 

 

 

(i)

the business of DSAC, together with all business opportunities presented to or which become available to DSAC, will be treated as part of the Business covered by the Management Services and this Agreement;

 

 

 

 

(ii)

all cash of DSAC will be maintained in Company Bank Accounts or disposed of in accordance with this Agreement;

 

 

 

 

(iii)

all business income, working capital, recovered accounts receivable, and any other funds which come into the possession of DSAC or are derived from or related to the operation of the business of DSAC, are deposited into a Company Bank Account;

 

 

 

 

(iv)

all accounts payable, employee compensation and other employment-related expenses, and any payments in connection with the acquisition of any assets for the benefit of DSAC or the satisfaction of any liabilities of DSAC, are paid from amounts maintained in Company Bank Accounts;

 

 

 

 

(v)

DSHK or any third party designated by DSHK will have full access to the financial records of DSAC and from time to time, DSHK may request, at its sole option, to conduct an auditing with regard to the financial status of DSAC;

 

 

 

 

(vi)

no action is taken without the prior written consent of DSHK that that would have the effect of entrusting all or any part of the business of DSAC to any other Person.

 

 

(b)

DSHK will ensure that:

 

 

 

 

 

(i)

it exercises with respect to the conduct of the Business the same level of care it exercises with respect to the operation of its own business and will at all times act in accordance with its Reasonable Business Judgment, including taking no action which it knows, or in the exercise of its Reasonable Business Judgment should have known, would materially adversely affect the status of any of permits, licenses and approvals necessary for the conduct of the Business or constitute a violation of all Legal Requirements;

 

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(ii)

neither it, nor any of its agents or representatives, takes any action that interferes with, or has the effect of interfering with, the operation of the Business in accordance with this Agreement, or which materially adversely affects its assets, operations, business or prospects;

 

 

 

 

 

 

(iii)

use its Best Efforts to cooperate and assist DSAC to maintain in effect all permits, licenses and other authorizations and approvals necessary or appropriate to the conduct of the Business; and

 

 

 

 

 

 

(iv)

subject to the provisions of Section 10 relating to the Transition period, it will preserve intact the business and operations of DSAC and take no action which it knows, or in the exercise of its Reasonable Business Judgment should have known, would materially adversely affect the business, operations, or prospects of DSAC.

 

9. Material Actions . The Parties acknowledge and agree that the economic risk of the operation of the Business is being substantially assumed by DSAC and that the continued business success of DSAC is necessary to permit the Parties to realize the benefits of this Agreement. During the Term of this Agreement, the Parties therefore will ensure that DSAC does not take any Material Action without the advance written consent of DSHK, which consent will not be unreasonably withheld or delayed.

 

10. Transition of Business to DSHK; Future Expansion . At the sole discretion of DSHK, during the Term of this Agreement, DSHK may transfer or cause to be transferred from DSAC to DSHK or its designee (referred to collectively for purposes of this Section 10 as “DSHK”) any part or all of the business, personnel, assets and operations of DSAC which may be lawfully conducted, employed, owned or operated by DSHK (the “Transition”), including any of the following:

 

 

(a)

business opportunities presented to, or available to DSAC may be pursued and contracted for in the name of DSHK rather than DSAC, and at its discretion DSHK may employ the resources of DSAC to secure such opportunities;

 

 

 

 

(b)

any tangible or intangible property of DSAC, any contractual rights, any personnel, and any other items or things of value held by DSAC may be transferred to DSHK at book value;

 

 

 

 

(c)

real property, personal or intangible property, personnel, services, equipment, supplies and any other items useful for the conduct of the Business may be obtained by DSHK by acquisition, lease, license or otherwise, and made available to DSAC on terms to be determined by agreement between DSHK and DSAC;

 

 

 

 

(d)

contracts entered into in the name of DSAC may be transferred to DSHK, or the work under such contracts may be subcontracted, in whole or in part, to DSHK, on terms to be determined by agreement between DSHK and DSAC; and

 

 

 

 

(e)

any changes to, or any expansion or contraction of, the Business may be carried out in the exercise of the sole discretion of DSHK, and in the name of and at the expense of, DSHK;

 

provided, however , that none of the foregoing, and no other part of the Transition may cause or have the effect of terminating (without being substantially replaced under the name of DSHK) or adversely affecting any license, permit or regulatory status of DSAC. Any of the activity contemplated by this Section10 will be deemed part of the “Business.”

 

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11. Ownership of Intellectual Property . All Intellectual Property created by DSHK in the course of providing the Management Services will be the sole property of DSHK and DSAC will have no right to any ownership or use of such Intellectual Property except under separate written agreement with DSHK.

 

12. Representations and Warranties of DSAC . DSAC hereby makes the following representations and warranties for the benefit of DSHK:

 

 

(a)

Corporate Existence and Power . DSAC is a limited liability company duly organized and validly existing under the laws of Thailand, and has all legal or corporate power and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and as currently contemplated to be conducted. DSAC has never approved, or commenced any proceeding or made any election contemplating, the dissolution or liquidation of DSAC or the winding up or cessation of the business or affairs of DSAC.

 

 

 

 

(b)

Authorization; No Consent . DSAC (i) has taken all necessary corporate and other actions to authorize its execution, delivery and performance of this Agreement and all related documents and has the corporate and other power and authorization to execute, deliver and perform this Agreement and the other related documents; (ii) has the absolute and unrestricted right, power, authority, and capacity to execute and deliver this Agreement and the other related documents and to perform its obligations under this Agreement and the other related documents; (iii) is not required to give any notice to or obtain any Consent from any Person in connection with the e


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