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MASTER CONSULTING SERVICES AGREEMENT


This Master Consulting Services Agreement (“Agreement”), effective as of [Month] [Day], 20__, (“Effective Date”) is between:

[Philip Morris Entity/Affiliate], with registered offices at [complete address of Philip Morris entity/affiliate] ("PMI"), and

[Name of Consultant], [Address –; physical address required] (“Consultant”).

THE PARTIES HEREBY AGREE AS FOLLOWS:

  1. DEFINITIONS
    In this Agreement, the following terms shall have the meanings defined below:

    1. “Affiliate” means any individual, corporation, partnership, limited liability company, association, trust or other entity which controls, is controlled by or is under common control with a party, and “control” means the ability, directly or indirectly, to direct the affairs of another by means of ownership, contract or otherwise.
    2. “Agreement” means this Agreement, including its schedules
    3. “Claim” means any claims, liabilities, suits, losses, damages, and expenses, including costs and reasonable legal fees.
    4. “Confidential Information” includes all Work Product and any business and/or technical information (i) concerning the existence and terms and conditions of this Agreement and any PO, (ii) concerning PMI’s and its Affiliates’ research and development efforts, trade secrets, computer software, recipes or formulas, product or marketing plans, vendor or customer relationships, finances, business operations or affairs, or other non-public information regarding PMI or its Affiliates, and (iii) of third parties that PMI and its Affiliates maintain in confidence, disclosed to Consultant either orally, electronically, in writing, or through the presence of any Consultant Personnel on the premises of PMI or of any of its Affiliates, and all tangible embodiments of such information.
    5. “Consultant Personnel” means any employee, agent or representative of Consultant.
    6. “Contraband PMI Products” means Products that have been imported into, distributed or sold in or were en route to the territory of a particular country for the purpose of being sold there, in violation of the applicable local tax, duty or other fiscal laws.
    7. “Counterfeit Factory” means any factory manufacturing Counterfeit PMI Products.
    8. “Counterfeit PMI Products” means Products which have been manufactured without the permission of the trademark owner.
    9. “Counterfeit Printing Facility” means a printing facility producing printed materials bearing PMI Trademarks for Counterfeit PMI Products.
    10. “Customs” means an authority or agency in a country responsible for collecting and safeguarding customs duties and for controlling the flow of goods including Products into and out of a country.
    11. “Government Official” means:
      1. any officer or employee of government, including officers or employees of government-owned (even if the government is a minority shareholder of the company) or government-controlled companies, or any department, agency or instrumentality thereof, or of a Public International Organization (such as the International Red Cross or the World Bank);
      2. any political party, any employee or other representative of a political party, or any candidate for political office;
      3. any uncompensated honorary government officials or representatives whose duties are ceremonial if such officials have actual influence in the award of business;
      4. any member of ruling or reigning royal family; or
      5. any other person acting in an official capacity or on behalf of: a government or any department agency or instrumentality thereof; Public International Organization; a political party or a ruling or reigning royal family.
    12. “Illicit Product Operator” means persons or entities controlling or directing (i) the manufacture, transportation, distribution, purchase or sale of Counterfeit PMI Products, and/or (ii) the diversion, export, distribution, purchase or sale of Contraband PMI Products or Non-PMI Contraband.
    13. “Illicit Product Trade” means the manufacture, transportation, distribution, purchase or sale of Counterfeit PMI Products, as well as the diversion, export, distribution, purchase or sale of Contraband PMI Products or Non-PMI Contraband.
    14. “Non-Tobacco Material” or “NTM” means material other than tobacco used in the production of Products and packaging material.
    15. “Non-PMI Contraband” means certain brands of cigarettes commonly referred to as “Illicit Whites” that are manufactured, imported, distributed or sold in violation of applicable local tax, duty or other laws.
    16. “Machinery and Equipment” means machinery and equipment (e.g., maker and packer) which is used in the manufacture, packing or packaging of Counterfeit PMI Products as specified in Schedule 2, Part 1, Section 3.1 (c).
    17. “Master Case” means the equivalent of 10,000 sticks of cigarettes or consumables (e.g., “HeatSticks”, “HEETS”; “PARLIAMENT”, etc.).
    18. “Other Tobacco Products” or “OTP” means other tobacco products including but not limited to pipe tobacco, roll your own (RYO), make your own (MYO), snuff leaf, nasal snuff, chopped tobacco, and bulk tobacco.
    19. “PMI Trademarks” means any trademarks owned by PMI or any of its Affiliates, including but not limited to, “IQOS”, “HEETS”, “MARLBORO”, “L&M”, “PHILIP MORRIS”, “BOND STREET”, “CHESTERFIELD”, “PARLIAMENT”, “LARK”, “A MILD”, “MORVEN”, “DJI SAM SOE”, and “VIRGINIA SLIMS”.
    20. “Products” means finished goods bearing PMI Trademarks whether or not they contain tobacco, including but not limited to cigarettes, OTP, and reduced-risk products.
    21. “Project Bonus” means a discretionary form of compensation which may be payable for activities in relation to long-term, deep, complex or high-end investigations pursuant to a PO where no other Rewards are paid or have been paid, as described in Schedule 2, Part 2.
    22. “Project Fee” means the fee paid to Consultant by PMI for Services provided under a PO.
    23. “Purchase Order” or “PO” means a written agreement between PMI and Consultant, pursuant to which Consultant will perform Services. A Purchase Order must contain a description of the Services, Work Product, compensation, and payment schedule.
    24. “Reduced-risk products” or “RRPs” is the term we use to refer to products that present, are likely to present, or have the potential to present less risk of harm to smokers who switch to these products versus continued smoking. We have a range of RRPs in various stages of development, scientific assessment, and commercialization. Because our RRPs do not burn tobacco, they produce an aerosol that contains far lower quantities of harmful and potentially harmful constituents than found in cigarette smoke.
    25. “Reward” means a discretionary form of compensation paid by PMI to Consultant in the form of a Success Fee or a Project Bonus.
    26. “Services” means all the work to be performed by Consultant pursuant to a PO. Examples of Services are provided in Schedule 1.
    27. “Source” means any person who, in exchange for compensation, provides any information to a Consultant or to PMI related to the performance of any Services.
    28. “Subcontractor” means an independent contractor, not an employee of Consultant, who has been contracted, retained or otherwise hired by Consultant to provide any portion of the Services.
    29. “Success Fee” means a Reward paid by PMI to Consultant for Services specified in a PO, as described in Schedule 2, Part 1.
    30. “Work Product” means all tangible and intangible property, including any method, process, formula or component, created, written, developed or designed for, on behalf of, or in conjunction with PMI by Consultant, its employees, Subcontractors or other third parties pursuant to this Agreement.
  2. SERVICES

    1. From time to time during the term of this Agreement, PMI and Consultant may agree that Consultant shall provide Services pursuant to a PO. This Agreement does not obligate PMI to obtain Services from Consultant and does not obligate Consultant to provide Services to PMI with respect to any particular project unless and until a PO is issued by PMI in respect of such project.
    2. Services shall be provided in accordance with the terms and conditions of this Agreement and the applicable PO, and any time schedule contained therein. If no time schedule is set forth in a PO, Services shall be provided promptly upon the request of PMI.
    3. Consultant may not change any specifications in a PO without the prior written approval of PMI.
    4. PMI may, at any time, modify the Services to be provided by Consultant pursuant to any PO. Upon receipt of instructions by PMI to modify any PO, Consultant shall be deemed to accept and shall promptly make such modification.
    5. In the event of any conflict between the terms and conditions of any PO(s) and this Agreement, the terms and conditions of this Agreement shall prevail.
    6. Consultant shall periodically discuss with PMI the progress of Services being provided in connection with any PO and shall adhere to PMI’s instructions with respect to the implementation of the PO and Consultant’s reporting or presentation of the conclusions and other information obtained.
    7. Consultant agrees that in consideration of the compensation to be paid to Consultant by PMI, as set forth in Section 4, PMI has purchased all right, title, and interest in and to all Work Product, including but not limited to writings, reports, documents, abstracts, and summaries, or any other Work Product created by Consultant or by Consultant Personnel, Consultant’s Affiliates or Subcontractors. Such Work Product shall be and remain the sole and exclusive property of PMI. To the extent that Work Product materials do not belong to PMI by operation of law, Consultant irrevocably transfers, assigns, and conveys the exclusive copyright ownership of and/or other applicable intellectual property rights in such Work Product materials to PMI, free and clear of any liens, claims or other such encumbrances, to the fullest extent permitted by law.
    8. Unless explicitly instructed in advance in writing to do so by PMI, Consultant is not authorized to:
      1. conduct inspections of Counterfeit PMI Products or Contraband PMI Products that have been seized by government officials, including Customs;
      2. make any representations to government officials, including Customs officials, or any third-party, in particular as to whether any Products and/or packaging material bearing PMI Trademarks are or are not counterfeit;
      3. other than in relation to routine operational matters as contemplated in a PO, meet with or exchange information with government officials, including Customs officials, on behalf of PMI; or
      4. attempt to seize or arrange the seizure of any Counterfeit PMI Products, Contraband PMI Products or Non-PMI Contraband or organize or request any legal or administrative action against a Counterfeit Factory, Counterfeit Printing Facility or an Illicit Product Operator.

        If Consultant is requested by PMI to undertake any action of the type specified in this Section 2.8, such action shall be considered part of the Services covered by the relevant PO.
    9. Consultant’s Services pursuant to any PO(s) are limited to [COUNTRY/IES] (the “Territory”). PMI shall not compensate Consultant for Services outside of the Territory unless Consultant receives written authorization from PMI to operate on its behalf outside of the Territory.
    10. When Consultant’s work involves access to PMI or its Affiliates computer and/or work station, Consultant shall ensure that Consultant Personnel comply with the PMI policies and practices concerning access to and security of such computer and/or work station.
    11. PMI may examine Consultant’s work under this Agreement at any time.
  3. PERSONNEL

    1. Consultant shall provide Services through fully trained and competent Consultant Personnel having a skill level appropriate for the tasks assigned to them. Consultant shall make all reasonable efforts to ensure the continuity of such personnel throughout the term of this Agreement or, in any event, any project.
    2. Consultant has sole responsibility for all employment-related matters involving its employees who provide Services, including (i) obtaining work permits and any other required authorizations and permits, (ii) compensation, including payment of all social charges in accordance with applicable laws, and (iii) providing any insurance that Consultant considers desirable in accordance with Consultant’s obligations hereunder.
    3. The Services to be provided by Consultant to PMI under this Agreement and any PO will be performed personally by Consultant, including its partners, owners, principals, or regular staff members, unless otherwise agreed in writing by PMI. Consequently, Consultant is not authorized to use a Subcontractor without first (i) notifying PMI of the identity of such third party, (ii) notifying PMI of the nature of the services to be performed and the corresponding proposed remuneration, and (iii) obtaining the prior written consent of PMI for working with such third party, which shall only be granted in exceptional circumstances.
    4. Any written consent by PMI to Consultant for a third party to act as a Subcontractor under Section 3.3 shall not relieve Consultant from any liability or obligation hereunder. Consultant shall be responsible for the acts, omissions, and defaults of any Subcontractor as fully as if they were the acts, omissions or defaults of Consultant.
    5. At no time shall PMI or any of its Affiliates be deemed to be the employer of any Consultant Personnel or Subcontractors, nor shall any such persons be eligible to participate in any employee benefit plan or program offered by PMI or any of its Affiliates.
    6. Consultant is and shall remain an independent contractor. Consultant shall not be considered, and shall not hold itself out to be, an agent, employee or partner of PMI or any of its Affiliates for any purpose. This Agreement will not be construed to create an association, partnership, joint venture, relation of principal and agent or commercial agent or employer and employee between PMI or any of its Affiliates and Consultant or any Consultant Personnel or Subcontractors.
    7. Consultant is not authorized, and shall not purport to be authorized, to create obligations binding on PMI or any of its Affiliates in any manner whatsoever. PMI disclaims any liability to Consultant or third parties arising from unauthorized actions of Consultant.
  4. COMPENSATION AND EXPENSES

    1. In full and complete compensation for the Services rendered to the satisfaction of PMI pursuant to any PO, PMI shall pay Consultant in accordance with the terms of the applicable PO. The categories of compensation that may be payable are described in this Section 4 and in Schedule 2.
    2. Before making any payment to a Source, Consultant shall:
      1. Obtain sufficiently detailed information about the Source, including the Source’s age, nationality, employment details and verification that the Source is not a Government Official, and create an “identifying name” for the Source, in a form substantially the same as the Source Identity Form in Part B of Schedule 7; and
      2. Confirm that the Consultant advised the Source that any payments may be taxable income that must be reported to the appropriate tax authorities, in a form substantially the same as Part C of Schedule 7.
    3. Consultant shall maintain a Source Log in a form substantially the same as Part A of Schedule 7. The Source Log shall indicate the Source’s “identifying name,” a description of the information provided or to be provided, and the payment terms and cumulative payments to the Source. Consultant shall provide PMI with an updated Source Log every six months.
    4. If specified in a PO, PMI shall pay Consultant a Project Fee.
    5. Rewards are discretionary forms of compensation. A Reward shall only be payable to Consultant if:
      1. Consultant fulfills the eligibility criteria for the relevant Reward as specified in Schedule 2;
      2. PMI in its sole and absolute discretion determines that payment of a Reward should be made to Consultant; and
      3. Consultant promptly provides any information required by PMI to substantiate the payment of the Reward.
    6. If a PO provides that Consultant may be eligible for a specific Success Fee and PMI determines in its sole discretion that a Success Fee is payable, any such Success Fee shall be calculated in accordance with Schedule 2, Part 1, Section 3.
    7. Consultant acknowledges and agrees that PMI has the sole and absolute discretion to determine whether or not and to what extent a Reward is payable to Consultant pursuant to a PO and hereby:
      1. undertakes not to make any Claim against PMI and/or its Affiliates in relation to PMI’s decision to pay or not to pay a Reward; and
      2. undertakes to indemnify PMI and/or its Affiliates and their respective directors, officers, agents, and employees from and against all Claims by Consultant, its Affiliates or any employee, representative or agent of Consultant related to the payment or non-payment of a Reward.
    8. The compensation set forth in this Section 4 shall be Consultant’s sole and exclusive entitlement to compensation, premiums, payments or reimbursements of any kind from PMI with respect to the Services rendered. Payment of any income or other taxes that may be due upon Consultant’s compensation from PMI shall be Consultant’s exclusive responsibility and, unless required by applicable law, PMI shall not withhold any amounts from Consultant’s compensation for this purpose.
      1. If authorized in a PO, PMI shall reimburse Consultant, at cost, for reasonable, competitively priced business and travel expenses incurred in providing the Services. Total reimbursement to Consultant for expenses incurred in connection with the Services provided pursuant to any PO may not exceed the maximum amount for expenses set forth in such PO and is conditional upon the submission by Consultant of the corresponding receipts and related supporting documents to PMI for approval.
      2. Claims for all expenses must be itemized when submitted to PMI. Expenses in excess of USD 100 (One Hundred U.S. dollars) must be submitted with receipts. Expenses in excess of USD 500 (Five Hundred U.S. dollars) must be approved in writing in advance by PMI.
      3. All travel by Consultant in the performance of the Services shall be at economy or other equivalent class unless PMI agrees otherwise in writing in advance.
      4. Payments made to Subcontractors are not reimbursable expenses.
      5. Purchase of samples shall be reimbursed to Consultant at cost if and when provided for in the PO.
      6. All payments made to Subcontractors must be detailed in Consultant’s invoices to PMI in a form consistent with the requirements of Schedule 8.
    9. Total payments to Consultant for compensation pursuant to any PO may not exceed the total amount set forth in such PO. There shall be no additional charges for office supplies, use of equipment, secretarial support, overtime or holiday pay, insurance, overhead or otherwise.
    10. PMI shall not be liable in any way to Consultant for any tax or other levy charged on amounts paid pursuant to any PO (except value added tax, if applicable), and Consultant hereby undertakes to indemnify PMI and its Affiliates in respect of any and all such Claims for payment.
    11. PMI shall pay all amounts due to Consultant by wire transfer to Consultant’s bank account, after receipt by PMI of a detailed written invoice in a form consistent with the requirements of Schedule 8 and subject to PMI payment policies. The submission of each such invoice by Consultant shall be a representation and warranty that the covenants, representations, and warranties of Consultant, as set forth more fully above and below, remain true and accurate as of the date of such invoice. No payments shall be made in cash or bearer instruments, nor shall any payments owed to Consultant be made to a third party instead. Payment shall be deemed to have been made upon receipt by PMI of confirmation of payment to Consultant’s bank from PMI’s bank.
    12. By accepting any payment from PMI under this Agreement, Consultant shall be deemed to have restated and confirmed continued compliance with the warranties and representations of this Agreement as of the date of such acceptance of payment. PMI shall not be obligated under this Agreement to take any action or omit to take any action (including making any payment hereunder) that it believes, in good faith, would cause it or its Affiliates to be in violation of the laws of any jurisdiction.
  5. TERM AND TERMINATION

    1. This Agreement shall be effective as of the Effective Date and shall remain in force unless terminated by either party pursuant to this Section. The term of each PO shall be as specified in the PO.
    2. PMI may terminate this Agreement or a PO at any time without cause upon 30 (thirty) days’ written notice to Consultant.
    3. Either party may terminate this Agreement with immediate effect upon written notice to the other party in the event that:
      1. the other party is in material breach of any provision hereof which breach has not been cured to the satisfaction of the non-breaching party within 10 (ten) days after written notice thereof from the non-breaching party;
      2. the other party becomes insolvent, is the subject of a petition in bankruptcy or of any other proceedings under bankruptcy, insolvency or similar laws or makes an assignment for the benefit of creditors; or
      3. any representation or warranty made in this Agreement is breached by the party making such representation or warranty or is determined to be false or misleading in any material respect, it being understood that PMI has the right to terminate this Agreement and withhold further payments if it believes, in its sole and absolute discretion, that Consultant has violated the anti-corruption representations and warranties or that a violation is substantially likely to occur. If such violation is associated with any payments or fees paid by PMI hereunder, Consultant shall be obligated to reimburse PMI the amount of any such payment or fee; or
      4. an event or occurrence takes place that renders Consultant unable to provide the Services described herein, including death, injury or similar circumstance befalling any of Consultant’s principals.
    4. The termination of a PO shall not affect this Agreement or any other PO. The termination of this Agreement shall simultaneously terminate all POs.
    5. Upon termination of this Agreement or a PO, Consultant shall:
      1. immediately discontinue all Services described in the relevant PO(s) in effect as of the date of such termination, incur no further fees or expenses in connection with the relevant Services without PMI’s prior written approval, and provide PMI with all Work Product in process and/or completed through the date of termination; and
      2. send PMI itemized invoices reflecting Services satisfactorily rendered and expenses properly incurred in connection with the relevant PO(s) through the date of termination, and PMI shall pay Consultant within 60 (sixty) days after PMI’s receipt of such invoices.
    6. Upon termination or expiration of this Agreement, neither Consultant, nor any other person, shall be entitled to any compensation, damages, indemnity, commissions, goodwill payment or any other amount for any cause arising directly or indirectly from such termination or expiration and Consultant shall on demand indemnify PMI in respect thereof, provided that PMI shall pay amounts due to Consultant, if any, in accordance with Section 4. PMI shall have no liability or payment obligation to Consultant after the effective date of termination or expiration, except for payments of amounts owed to Consultant, if any, in accordance with Section 4.
    7. Termination or expiration of this Agreement shall be without prejudice to any of Consultant’s obligations contained herein which survive the termination or expiration of this Agreement and without prejudice to any Claims PMI may have in respect of breach of contract or otherwise.
  6. CONFIDENTIALITY

    1. Consultant shall (i) keep all Confidential Information confidential, (ii) maintain tangible Confidential Information in a secure location, (iii) not use Confidential Information for any purpose other than in accordance with this Agreement, and (iv) not disclose Confidential Information to any person other than its employees, agents, representatives, or, where necessary, Subcontractors who have a need to know of such Confidential Information in order to provide the Services.
    2. Consultant shall have and maintain security systems and processes to enable it to comply with the confidentiality obligations of this Section 6. This shall include requiring all Consultant Personnel to execute confidentiality agreements in substantially the form set forth in Schedule 3. Consultant agrees to accept responsibility for any use or disclosure of Confidential Information by Consultant Personnel in violation of the terms of this Agreement and to take such steps as may be required by applicable law to enforce this obligation.
    3. PMI shall take reasonable steps to ensure that any information provided by Consultant under this Agreement and/or any PO(s) is disseminated within PMI and its Affiliates only on a “need-to-know” basis.
    4. The obligations of confidentiality in this Section shall not apply to any Confidential Information that (i) comes into the public domain other than through breach of this Agreement by Consultant, (ii) was known by Consultant (as established by its own records or other competent proof) before disclosure by PMI to Consultant, (iii) comes lawfully into the possession of Consultant from a third party who is not under an obligation to keep such information confidential, or (iv) the disclosure of which is required by law, by any court of competent jurisdiction or by any official regulatory body.
    5. Consultant may disclose Confidential Information to the extent compelled by an enforceable subpoena or order of a court of competent jurisdiction or governmental authority, provided that (i) it gives PMI reasonable notice of the disclosure, (ii) where appropriate, uses reasonable efforts to resist disclosing the Confidential Information, and (iii) co-operates with PMI on request to obtain a protective order or otherwise limit the disclosure.
    6. Within 15 (fifteen) days of the termination or expiration of this Agreement for any reason (or such earlier date that PMI may request), Consultant shall return all materials containing any Confidential Information including, without limitation, all documents, data, specifications, samples, drawings, designs, blueprints, photographs, sketches, software, and other materials of PMI, together with any reproductions of same.
    7. Nothing in this Agreement shall prevent PMI from disclosing the terms of this Agreement, including Consultant’s identity and the payment terms hereof, if necessary, to any government agency or official that, in PMI’s judgment, has a legitimate need to know.
    8. The provisions of this Section 6 shall survive the expiration or termination of this Agreement.
  7. REPRESENTATIONS AND WARRANTIES

    1. Consultant represents and warrants that it shall perform all Services pursuant to this Agreement in a timely and professional manner.
    2. Consultant represents and warrants that all Work Product shall be the original work of Consultant unless identified in writing as and acknowledged to be the work of an identified third party, and that such Work Product does not and will not infringe any intellectual property right of any third party.
    3. The parties to this Agreement are committed to compliance with the laws of the Territory, as well as the laws of other countries that are, or may be, of potential relevance, including the U.S. Foreign Corrupt Practice Act (FCPA), 15 U.S.C. §§78dd-1, 78dd-2, and 78dd-3. Accordingly, Consultant represents that it is now in compliance with the laws of the Territory applicable to Consultant’s performance under this Agreement, as well as the laws of any other countries or jurisdictions that are applicable to the transactions contemplated herein and will remain in compliance with all such laws for the duration of this Agreement. The provisions of this Agreement relating to the execution of this Agreement and the transactions contemplated thereby, including the compensation of Consultant, are legal and binding under the laws and policies of the relevant jurisdictions, including, without limitation, the laws and regulations relating to the taxation and exchange tools.
    4. Consultant represents and warrants that it does not have, and will not have during the term of this Agreement, any conflict of interest that would compromise Consultant’s ability to provide the Services or would create an appearance of impropriety in regard to Consultant’s performance of the Services. Consultant further represents and warrants that neither it nor any officer, director, employee, owner or partner, nor any agent, representative or Subcontractor who will perform Services under this Agreement on behalf of Consultant, is a Government Official, or close relative of a Government Official in a position to influence the award of business or other advantages to PMI, nor will become, during the term of this Agreement, a Government Official, without Consultant providing advance notice to and obtaining written approval from PMI in its sole discretion.
    5. In providing Services in connection with this Agreement, Consultant warrants that it shall not authorize, offer, promise, or give any payments or anything else of value, through any means whatsoever, (i) to any Government Official or to any other person with the knowledge that all or any portion of the thing of value will be offered, promised or given to a Government Official for the purpose of influencing official action to obtain or retain business or secure any improper advantage, or to reward such an act, or (ii) to any person (whether or not a Government Official) to influence that person to act in breach of a duty of good faith, impartiality or trust, or to reward such act. This includes a prohibition on offering or making “facilitation” payments. Facilitation payments are small payments to Government Officials to expedite or secure the performance of routine government action (actions that are ordinarily and commonly performed). Examples include payments to speed up issuing of legitimate visas; licenses or permits; and to connect telephones or other utility services. For the avoidance of doubt and without limiting the generality of the foregoing warranty, Consultant further warrants that it shall not make a gift or political contribution in cash or in kind to, nor shall it entertain, any Government Official or any other persons on behalf of PMI without the prior written approval of PMI, and that all such approved gifts, entertainment, and contributions will be accurately recorded in its books and records and will not be reimbursed by PMI without having received the necessary approvals from PMI. For the purposes of this Section, a person shall be deemed to have “knowledge” with respect to conduct, circumstances or results if such person is aware of (1) the existence of, or (2) a high probability of the existence of such conduct, circumstances or results.
    6. Consultant represents and warrants that no part of any payments by PMI to Consultant may be used, directly, indirectly, or through any other means whatsoever, (i) for any purpose that would constitute a violation of the laws of the country where the Services shall be rendered, the countries where PMI and Consultant are organized, or any other country whose laws may apply to either of the parties or to their respective Affiliates, including without limitation the FCPA, (ii) in order to procure any benefit from any Government Official on behalf of PMI, or (iii) for any illegal, unethical, or improper purpose, whether or not in connection with this Agreement.
    7. Consultant shall ensure that each employee, agent, representative, and Subcontractor of Consultant performing Services in connection with this Agreement will review and comply with the standards of conduct set out in this Section, and Consultant will comply with, and will cause each such employee, agent, representative, and Subcontractor to comply with such policies and codes of conduct of which PMI has given, or may in the future give, Consultant express notice of, including the PMI Code of Conduct and PMI Principles and Practices 14-C and 5-C.
    8. Consultant represents and warrants that it shall secure and maintain all licenses, certifications, and registrations which may be required under applicable law or regulation in order to perform the Services.
    9. Consultant represents and warrants that it shall (i) file all reports with governmental authorities as required by applicable law in connection with Consultant’s activities on behalf of PMI hereunder, (ii) file such reports in an accurate and timely manner at its own expense and shall forward copies of all such reports to PMI immediately upon their filing, and (iii) further provide all necessary information and assistance to PMI in a timely and accurate manner to enable PMI to comply with any registration or filing requirements that may apply to PMI.
    10. Consultant represents and warrants that neither it nor any of its employees, agents or representatives shall undertake any commitments to other clients that conflict or are inconsistent with the full performance of Consultant’s known or reasonably foreseeable duties hereunder. During the term of this Agreement and for a period of 1 (one) year thereafter, neither Consultant nor any of its employees, agents or representatives shall, without the prior written consent of PMI, engage in consulting or similar activities on behalf of any company, entity or person whose business competes with the tobacco products businesses of PMI or its Affiliates or who has interests adverse to the interests of PMI or any of its Affiliates.
    11. Consultant represents and warrants that it shall not create or maintain any secret or unrecorded funds or assets for any purpose in connection with this Agreement or the Services performed hereunder.
    12. Consultant represents and warrants that it shall provide PMI with prompt and full co-operation in respect to any request by PMI for information in relation to PMI’s requirements for retaining Consultants. An example of the type of information that may be requested is described in Schedule 5. Consultant further represents and warrants that it shall execute an authorization for such information and shall agree to hold harmless PMI from any liability in respect to its disclosure in the form specified in Schedule 6.
    13. Consultant represents and warrants that it shall attend periodic training when requested by PMI concerning PMI’s Private Investigation Functional Standard, the FCPA, other relevant anti-bribery legislation, PMI Principles and Practices, and other training topics determined by PMI in its absolute discretion from time to time.
    14. The preceding representations and warranties are material terms of this Agreement and Consultant’s full compliance in all respects with such terms is an essential component of Consultant’s obligations under this Agreement. Consultant acknowledges that its breach of any of the foregoing will constitute grounds for termination under the provisions of Section 5 of this Agreement. In the event that PMI has reason to believe that a breach of any of the representations and warranties in this Agreement has occurred or may occur, PMI may withhold further payment under this Agreement until such a time as it has received confirmation to its satisfaction that no breach has occurred or will occur. PMI shall not be obligated under this Agreement to take any action or omit to take any action (including making any payment hereunder) that it believes, in good faith, would cause it to be in violation of the laws of any jurisdiction.
  8. INDEMNITY AND OTHER REMEDIES

    1. Consultant shall defend, indemnify, and hold harmless PMI, its Affiliates, and their respective directors, officers, agents, and employees from and against all Claims, relating to or resulting from: (i) any actual or alleged infringement of any patent, copyright, trade secret, or other proprietary right caused by any Work Product, except for any infringement resulting solely from modification of any Work Product by PMI, (ii) the breach of any obligation of confidentiality or of any representations or warranties contained in this Agreement, (iii) acts or omissions of any Consultant Personnel or Subcontractors or the presence of Consultant Personnel or Subcontractors at a PMI facility including Claims resulting from injuries to Consultant Personnel or Subcontractors and Claims resulting from injuries, property damage, and loss of data caused by Consultant Personnel or Subcontractors (except for Claims resulting solely from the negligence or willful misconduct of PMI), (iv) Consultant’s failure to comply with all laws and regulations applicable to the provision of Services or to obtain all licenses, permits, and approvals necessary for it to provide Services, (v) Consultant’s relationship with its personnel, including, without limitation, any Claims by Consultant Personnel or Subcontractors for wages or for benefits under any PMI benefit plan and Claims by a governmental authority for withholding, unemployment or other taxes or payments; or (vi) any acts undertaken by Consultant in accordance with and in furtherance of this Agreement. This Section 8.1 shall survive the termination of this Agreement.
    2. The indemnified parties set forth in Section 8.1 shall have the right to exercise reasonable control over any litigation within the scope of this indemnity insofar as it concerns claims against them. That control shall include the right to select and retain counsel to represent them at Consultant’s expense. This indemnity shall be inapplicable if Consultant is not notified promptly of any such Claim and is prejudiced by the delay in notice. All indemnified parties shall co-operate to the extent necessary in the defense of any Claim within the scope of this indemnity.
    3. The remedies contained in this Section are without prejudice to and in addition to any warranties, indemnities, remedies or other rights provided by law, statute, and under any other provision of this Agreement for the benefit of PMI.
    4. Consultant acknowledges that any breach of Section 6 would cause PMI irreparable injury for which standard legal remedies would not be adequate. Therefore, in the event of a breach of any such section, PMI shall be entitled to extraordinary or injunctive relief in addition to any other remedies it may have.
    5. Neither party shall be liable for any indirect, incidental, special or consequential damages.
  9. CONDUCT, PUBLICITY, AND THIRD PARTY CONTACTS

    1. Consultant shall not initiate or participate in any action or conduct tending to injure, bring into disrepute, ridicule, damage or destroy the goodwill of PMI or of its Affiliates or their respective businesses.
    2. Consultant shall not, without the prior express written approval of PMI, (i) advertise or otherwise publicize the existence or terms of this Agreement or any PO or any other aspect of the relationship between Consultant and PMI, or (ii) use PMI’s name or that of any of its Affiliates or any trade name, trademark or service mark or brand imagery belonging to PMI or any of its Affiliates in any press release, any form of advertising, or any of its business communications (internal or external) except those necessary to provide the Services.
    3. If at any time Consultant is contacted by a third party, including any news organization, concerning Consultant’s activities on behalf of PMI, Consultant shall make no comment, immediately notify PMI of the third-party contact, and refer the third party to PMI.
  10. BOOKS AND RECORDS

    1. All financial statements, reports, and billings rendered by Consultant to PMI shall, in reasonable detail, accurately and fairly reflect the activities and transactions related to PMI’s account including, without limitation, any payments that may have been made, directly or indirectly, for the procurement of information, services or otherwise, from a Government Official or government entity. Consultant shall also keep and maintain complete and accurate books, records of account, reports and other data necessary for the proper administration of this Agreement for 5 (five) years after the termination or expiration hereof.
    2. PMI shall have the right to have its internal and/or independent auditors audit Consultant’s financial and accounting records and any documents or records relating to the Services upon reasonable notice during normal business hours. PMI may exercise its right to audit at any time during the term of this Agreement and for 2 (two) years immediately following the termination or expiration of this Agreement. Consultant will fully cooperate in any audit that may be conducted.
    3. Consultant shall issue a certificate of compliance, in the form specified in Schedule 4, with respect to:
      1. payment of Rewards;
      2. payments by Consultant to Sources; or
      3. such other matters as PMI in its absolute discretion shall determine from time to time.
  11. FORCE MAJEURE

    1. If either party is prevented in any way from performing any of its obligations under this Agreement or under any PO because of matters outside such party’s reasonable control including, without limitation, fire, flood, storm; third-party strike, lockout or other labor trouble; riot, war or hostilities between any nations, rebellion, accident, acts of God, or other similar and dissimilar causes beyond the reasonable control of such party, then the party so prevented from performing shall not be liable for any failure or delay in its performance provided that such party shall give the other party prompt written notice of such failure or delay and the cause therefore and shall use all reasonable means to resume full performance of its obligations as soon as possible. Should such an event of force majeure last for more than 30 (thirty) days, then the party whose rights or benefits have thus been interrupted shall have the right to terminate this Agreement or the relevant PO, as the case may be, without liability to the other party. Unless this Agreement or an affected PO has been previously terminated, then upon the cessation of the event of force majeure, both parties’ obligations hereunder shall resume.
  12. DATA PROTECTION

    1. The parties agree to comply with all applicable data protection laws and the provisions of Schedule 9.
  13. GENERAL PROVISIONS

    1. No delay, omission or failure by either party to exercise any of its rights or remedies hereunder shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right and remedy may be exercised from time to time and as often as may be deemed expedient by the party exercising such right or remedy.
    2. This Agreement shall not be modified or amended except by an agreement in writing signed by the parties. A PO may only be modified or amended in accordance with Sections 2.3 and 2.4.
    3. This Agreement, together with all POs, represents the entire agreement between PMI and Consultant and supersedes all contracts, arrangements, and negotiations, oral or written, between PMI and Consultant on the subject matter hereof, all of which are hereby terminated as of the effective date of this Agreement. The pre-printed terms and conditions of any of Consultant’s business forms, including any POs, shall be without legal effect in transactions under this Agreement.
    4. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their respective successors and assigns. PMI may at its sole and absolute discretion assign all or any part of its rights and obligations hereunder to any of its Affiliates. Consultant shall not, nor purport to, assign or encumber all or any part of its obligations or rights hereunder without the prior written consent of PMI.
      1. All assignments, warranties, indemnities, and confidentiality obligations provided herein shall survive termination or expiration of this Agreement.
      2. Notices hereunder shall be in writing and may be given or made by personal delivery or by prepaid registered post or email, addressed to the intended recipient at the address specified hereunder (or at such other address as such party may last have specified to the other party in writing) and if so served shall, in the case of a notice sent by post, be deemed to be served on the third day following the date of posting and, if by facsimile or email, when transmitted (with printed confirmation of receipt) and, if by personal delivery, on the date of such delivery.

        If to PMI:
        Philip Morris Entity/Affiliate
          Address
          Address
          Address
          Attention: ITP/EA Manager/Director
          Email:


        If to Consultant:
        Consultant’s Name
          Address
          Address
          Address
          Attention:
          Email:
                    
    5. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute 1 (one) instrument.
    6. If any provision of this Agreement is held unenforceable for any reason, by any court, governmental agency, department, body or tribunal, the remaining provisions hereof shall remain in effect.
    7. Section headings in this Agreement are for ease of reference only and shall not in any way affect the interpretation of the provisions of this Agreement.
  14. JURISDICTION

    1. Any dispute, controversy or Claim arising out of or in relation to this Agreement, including the validity, invalidity, breach or termination thereof, shall be resolved by arbitration in accordance with the ____________ in force on the date when the Notice of Arbitration is submitted in accordance with these Rules.
    2. The number of arbitrators shall be 3 (three).
    3. The seat of the arbitration shall be ____________. The arbitration shall also be conducted in ____________.
    4. The arbitral proceedings shall be conducted in the English language.
    5. Any award or other outcome of such arbitration shall be final and binding upon the parties and may be enforced by any competent court or other judicial authority, and may include, in the discretion of the arbitrators, an order awarding attorneys' fees and costs and expenses to the prevailing party.
    6. The parties agree that all aspects of any arbitration pursuant to this Section, including without limitation the existence of the proceedings and any pleadings or documents submitted or exchanged, any testimony or other oral submissions, and any awards in connection therewith, shall be treated as confidential and shall not be disclosed except as necessary to the respective counsel of the parties and any person necessary to conduct the proceedings or any enforcement thereof.
  15. APPLICABLE LAW

    This Agreement shall be governed by and interpreted in accordance with the laws of ____________, without regard to ____________'s choice of law doctrines.


IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized officers as of the date below written.


PHILIP MORRIS ENTITY/AFFILIATE

By: xByx   By: xByx
Name: xNamex   Name: xNamex
Title: xTitlex   Title: xTitlex
Date: xDatex   Date: xDatex



CONSULTANT

By: xByx   By: xByx
Name: xNamex   Name: xNamex
Title: xTitlex   Title: xTitlex
Date: xDatex   Date: xDatex