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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3557
Experience:  Solicitors 2 years plus PQE
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I sell and maintain a vertical market software product in Europe,

Customer Question

I sell and maintain a vertical market software product in Europe, America and Africa. Recently an agent has arranged a sale with an entity in Nairobi. Knowing how African business tends to work I had verbally instructed him not to give financial inducements to obtain a sale. I am aware of the 2010 bribery act, so I have asked him when invoicing me for his commission to put on the invoice the following wording:
"This commission relates to a sale of software to an organisation in a non-western country. I hereby confirm that no part of it will be used to pay or undertake business activities with a foreign public official or politically exposed person."
Is this sufficient, or do I need to take other action to protect myself just in case? The sale involved is about £10k
Submitted: 1 year ago.
Category: Law
Expert:  Nicola-mod replied 1 year ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 1 year ago.
No I can wait. Thanks for your response.
Expert:  Nicola-mod replied 1 year ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Expert:  Alex J. replied 1 year ago.
Hi. Thank you for your question and welcome. My name is ***** ***** I will assist you. I am a commercial contracts solicitor. Having an anti bribery and corruption policy in place and terms in your contracts with the sales agent that ensure (1) they comply with the Bribery Act 2010 (2) they will report any offences to you and (3) you have the right to terminate if any offences are committed or you have a reasonable suspicion of any offences- this is generally sufficient protection to absolve you of liability. The only caveat to this is you cannot put these protections in place and then turn a blind eye (ie you ought to have reasonably known corruption and bribery was occurring but turned a blind eye). On a side point I would also include in the wording an indemnity in favour for any fines and penalties that incur as a result of the agents breach of of corruption and bribery rules. Do you have an anti bribery policy in your place of work that your employees must follow?
Customer: replied 1 year ago.
Thanks for your advice. I have no employees. I shall insert an anti-bribery clause into the existing contract with the agent. Maybe I just have a dirty mind, but I think you can't be too careful in these matters. The problem is that this sale has already been made, and I have now received the initial licence fee payment, a large percentage of which will be invoiced by the agent (my interest is only in the on-going annual payments rather than the initial licence fee). I suppose I could word the new clause so it would be retroactive - i.e. indemnity in my favour for any fines and penalties that incur as a result of the agent's breach of corruption and bribery rules both hitherto or in the future?
Expert:  Alex J. replied 1 year ago.
Hi thank you. If you amend the clause you have written I am happy to review it. All you need to show is you take anti bribery and corruption seriously and have procedures in place to safe guard against it. Really what we are talking about is avoiding criminal liability. If this means getting your agents to subsequently agree to put procedures in place retrospectively that is better than not having any procedures or safe guards at all. Kind regards AJ
Customer: replied 1 year ago.
Hi AlexHow about the following?Compliance with laws
1. The Agent shall indemnify and hold harmless the Principal against any costs, claims, expenses or losses incurred by the Principal, as a result of the Agent, its employees or representatives, breaching any law or other regulation;2. The Agents specifically agree to comply with, and will report any offences under the Bribery Act 2010;Termination:
...
5. The Principal can terminate this Agreement if any offence under the Bribery Act 2010 or any other similar offence is committed by the Agent.
Expert:  Alex J. replied 1 year ago.
Hi, Thank you. I would suggest the following amends:1. The Agent shall indemnify and hold harmless the Principal against any costs, claims, expenses or losses incurred by the Principal, as a result of the Agent, its employees or representatives, breaching any applicable law or other regulation (including but not limited to the Bribery Act 2010 and the Foreign Corrupt Practices Act 1977) ;2. The Agents agrees to immediately report to the agent any offences under the Bribery Act 2010;3. The Agent shall at all times maintain appropriate anti bribery and corruption policies in compliance with the Bribery Act 2010 and the Foreign Corrupt Practices Act 1977 (and any other applicable anti bribery and corruption legislation);Termination:...5. The Principal can terminate this Agreement with immediate effect if (i) the Principal has reasonable suspicion that an offence has been committed or (ii) any offence has actually been committed, under the Bribery Act 2010 or any other similar offences described under any other applicable legislation.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3557
Experience: Solicitors 2 years plus PQE
Alex J. and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you very much
Expert:  Alex J. replied 1 year ago.
No problem. I wish you the best of luck.kind regards AJ

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