AGREEMENT
THIS AGREEMENT (this “Agreement”) is made as of this __ day of __________, 200_,
(the “Effective Date”) by and between _________________. (“Purchaser”) and _________________
(“Seller”).
W I T N E S S E T H:
WHEREAS, Purchaser wishes to purchase ________________ from Seller; and
WHEREAS, Seller is willing to sell such _____________ to Purchaser;
NOW, THEREFORE, in consideration of the covenants, conditions and payments
hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Price, Quantity, Shipping Instructions, and Payment Terms. Seller will sell to Purchaser __ (the
“Goods”) [RFP ______, dated ____], pursuant to the terms of this Agreement and the price, payment,
delivery, and other terms set forth in the Appendix attached hereto and made a part hereof (the
“Appendix”). The Goods will be shipped ___, in accordance with the details specified in the Appendix.
Nothing contained in this Agreement shall be construed as a commitment by Purchaser to purchase
any Goods, or minimum quantity thereof, from Seller.
2. Term. The term of this Agreement shall begin on the Effective Date, and shall end on ___________
(the “Term”) unless earlier terminated in accordance with this Agreement.
3. Title and Risk of Loss. Title to and risk of loss of all Goods furnished hereunder shall remain with
Seller until receipt, inspection, and acceptance of the Goods by Purchaser. Seller warrants that it has
clear title to the Goods and that there is no outstanding hostile claim against or security interest in the
Goods held by a third party.
4. Non-Disclosure. All information, including but not limited to, financial statements, product information,
manufacturing capabilities, passwords, documents, data and business records, which is disclosed to
Purchaser by Seller or which Purchaser observes or comes into contact with during the Term of this
Agreement, whether generated by Seller or contractor of Seller, shall be deemed “Confidential
Information” and the sole and exclusive property of Seller. Purchaser shall take all reasonable
measures to maintain the confidentiality of said Confidential Information by its employees, agents,
representatives and couriers. Purchaser shall not use the Confidential Information for any purposes
other than to perform its obligations hereunder and shall not disclose any Confidential Information to
any third party without the prior written consent of Seller. Purchaser acknowledges that all right, title,
and interest in and to said Confidential Information, including the right to produce, extract, or exhibit
said Confidential Information to any third party and any intellectual property rights relating to said
Confidential Information, exist in Seller only. Purchaser shall return such Confidential Information
promptly upon the expiration or termination of this Agreement.
5. Warranties. Notwithstanding any limitations to the contrary in Seller’s invoice and/or sales
documentation, Seller expressly warrants that:
(a) all Goods will conform to [the purchaser requirements] and any other applicable plans, drawings,
specifications or samples furnished by Purchaser, or furnished by Seller and approved and
accepted by Purchaser, it being understood that such plans, drawings, specifications or samples,
are incorporated by reference and made a part hereof;
(b) all Goods will be of merchantable quality, fit and sufficient for the purpose ordered and
communicated to Seller, and will be free from latent or patent defects in material and
workmanship;
(c) all services will be performed in a workmanlike, efficient and safe manner and will conform to
standards generally accepted in the trade or industry involved;
(d) all Goods are and will be free from any security interest, lien, or encumbrance;
6. Remedies.
(a) If any of the Goods are found within the warranty period provided in the Appendix to be defective
in material or workmanship or otherwise not in conformity with the requirements of this
Agreement, Purchaser, in addition to any other rights which it may have under warranties or
otherwise, shall have the right, at its option
(i)
to revoke acceptance, reject and return such Goods at Seller’s expense, in which event
conforming Goods shall be provided by Seller at its cost within ten ( ) days of such
revocation and such replacement Goods shall carry a warranty equivalent to that set forth in
the Appendix running from the date of Purchaser’s receipt of such replacement Goods; or
(ii) notify Seller of noncompliance, defects, or deficiencies in the Goods, which Seller shall repair
and/or correct at Seller’s expense within ten ( ) days of such notice and such repairs shall
carry a warranty equivalent to that set forth in the Appendix running from the date of
Purchaser’s acceptance of such repaired Goods; or
(iii) upon notice to Seller, to take such actions as may be required to cure all defects and/or bring
the Goods into conformity with all the requirements of this Agreement, in which event all
costs and expenses thereby incurred by Purchaser shall be for Seller’s account,. Efforts by
Purchaser to correct defects or deficiencies shall not preclude Purchaser from revoking
acceptance and rejecting the Goods under this Section or applicable law where Purchaser’s
commercially reasonable attempts to correct the defective conditions prove to be
unsuccessful.
(b) In the event that Purchaser invokes the remedy set forth in Section 6(a)(ii), Purchaser shall
cooperate in providing reasonable access to the Goods, data and technical assistance (if
available) as required to develop and schedule repairs and related testing of modifications or
repairs, if necessary, to assist Seller in its correction of the defects or deficiencies in the Goods.
Seller will schedule repairs to minimize disruption, loss and inconvenience to Purchaser, or if
required, Seller shall, at its expense, arrange for delivery of the Goods to Seller’s plant for repair
or modification.
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7.
Insurance.
(a) Liability Insurance. Prior to and during any entry by Seller onto the premises of Purchaser, Seller
shall purchase and maintain the following insurance coverages: (i) Commercial General Liability
Insurance (“CGL”), with contractual liability covering obligations assumed in this Agreement
(including any agreements entered into between the parties pursuant hereto) by Seller.
(b) Policy Requirements. All insurance required hereunder shall be effected by valid and enforceable
policies issued by insurer(s) of financial responsibility and authorized to do business in all
necessary states. Seller’s liability insurance policies shall name Purchaser. Prior to any entry
upon Purchaser’s property pursuant to this Agreement and upon Purchaser’s request thereafter,
Seller shall provide or shall cause its insurer to provide Purchaser with complete certified copies
of the liability insurance policies in effect for the Term of this Agreement.
8.
Intellectual Property. Seller warrants that: (1) that the goods or services purchased hereunder as well
as the production, sale and use thereof, do not and will not infringe any third party patents,
trademarks or copyrights or other intellectual property; (2) that Seller will at its own expense defend
any suit that may arise In with respect thereto. In case the Goods or a part thereof are held to be
infringing, or the use of the Goods or a part thereof is enjoined, Seller shall, at Seller’s expense,
either procure for Purchaser the rights to continue using the Goods, replace the Goods or a part
thereof with non-infringing Goods, modify the Goods so that they are non-infringing, or retake to
Goods and refund the purchase price and other costs associated with delivery or return of the Goods.
9. Waiver. Waiver by the Purchaser of Seller’s breach of any term or condition of this Agreement shall
not be construed as a waiver of any other term or condition or a future waiver of the waived term or
condition.
10. Cancellation.
(a) Except as provided in this Agreement, Purchaser may cancel this Agreement without penalty or
payment of cancellation charges upon ( ) days prior written notice to Seller if Seller fails to
make delivery as specified or within a reasonable time if no time is specified, or fails to comply
with any other provisions of this Agreement, except if excused under Section 12.
(b) Cancellation hereunder shall discharge all executory obligations of the parties but shall not affect
any right or obligation based on a prior breach or performance of this Agreement nor affect any
right or obligation which is intended to survive such cancellation.
11. Labor Matters. If Seller interferes with Purchaser’s operations because of a strike, picketing or a work
stoppage by Seller’s or its subcontractor’s employees or a dispute between a union and the Seller or
its subcontractor, Purchaser, after twenty-four (24) hour oral or written notice to the Seller, may either
employ a substitute or terminate this Agreement. Further, Seller shall be liable for and promptly pay
to Purchaser, any additional expense incurred by Purchaser in employing such substitute or
terminating the Agreement.
12. Notice of Delay. Seller agrees to notify Purchaser in writing promptly of any factor, occurrence or
event coming to its attention that may affect Seller’s ability to meet it obligations under this
Agreement. Examples of where such notice shall be given, shall include, but not be limited to any
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loss, reassignment or unavailability of key employees, a force majeure event, threat of strike, or major
equipment failure, changed requirements, or third party delays.
13. Force Majeure. A party shall be excused from performing its contractual obligations if it is prevented
or delayed in such performance by conditions that constitute force majeure, such as acts of God, acts
of terrorism, acts of the public enemy, labor disturbances, authority of law, fire or explosion, war or
warlike act, insurrection, a party’s reasonable response (by way of example and not limitation, such
as taking evasive action or canceling meetings or events) to a Governmental warning affecting local
or national security, or any like causes beyond its control. A party wishing to take advantage of the
relief provided in this Section must as soon as practical advise the other party in writing of the
existence of the force majeure condition and the estimated time of its duration. The parties shall
cooperate to ascertain the facts and the effect of the delay on, and make appropriate adjustments
where necessary.
14. Prohibition on Improper Influences. Seller represents that it has not and will not provide any gift,
rebate, or other compensation – excluding nominal business entertainment or gifts – to any official,
employee, representative, or agent of Purchaser or any of its affiliated or subsidiary companies.
Seller further represents that none of its officials or employees are known to be employed by
Purchaser or any of its affiliated or subsidiary companies. Seller agrees to promptly notify Purchaser
if Seller becomes aware of information requiring modifications to either of the foregoing
representations.
15. Insolvency. In the event Seller shall file a voluntary petition in bankruptcy, or a petition in bankruptcy
shall be filed against Seller, or Seller shall make an assignment for the benefit of its creditors, or
Seller shall apply for relief in any form as a debtor under any statute of the United States or laws or
regulations of any other governmental authority, or any other proceeding under any statute of the
United States or laws or regulations of any other governmental authority seeking the relief or
readjustment of Seller’s indebtedness shall be commenced, then Purchaser shall have the right to
immediately cancel this Agreement or so much of it as has not been completed, without penalty or
payment of cancellation charges.
16. Severability. Any provision of this Agreement which is determined to be invalid or unenforceable will
be ineffective to the extent of such determination without invalidating the remaining provisions of this
Agreement.
17. Complete Agreement. This Agreement and each Appendix attached hereto constitute the complete
agreement of the parties relating to the matters specified in this Agreement and supersede all prior
and contemporaneous representations or agreements with respect to such matters. No oral
modifications or waiver of any of the provisions of this Agreement shall be binding on either party.
18. Laws. Parties warrant and agree that it has complied and will comply with all applicable laws. One
Party shall indemnify the other Party and save it harmless from any claims, losses, damages, costs
and legal expenses (including but not limited to attorneys’ fees), resulting from its own failure to
comply with the foregoing.
19. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled through binding arbitration in accordance with the Provisional Rules of
Procedure, and judgment on the award rendered by the arbitrator(s) may be entered in any court of
competent jurisdiction. Exclusive venue for such arbitration shall be the Arbitration Commission of the
China Council.
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20. Independent Contractor. Seller acknowledges that it is an independent contractor and that Purchaser
has no control over or ownership interest in any of the Seller’s facilities that will be utilized in
supplying Goods to Purchaser hereunder.
21. Consortium Purchasing. [Include this section only if applicable.] Seller acknowledges that it
benefits from Purchaser obtaining greater quantities of goods and/or services from Seller and has
reflected that by granting Purchaser a discount for volume purchases as shown in the price schedule
in the Appendix attached hereto. To encourage Purchaser to have third parties purchase goods
and/or services from Seller, Seller agrees to allow Purchaser to aggregate its purchases with those of
any such third parties, so that Purchaser and such third parties each receive benefit of the volume
discounts set forth in the Appendix attached hereto. Purchaser shall forward the name, address,
telephone number and the name of the representative of any such third parties, and unless Seller
objects in writing within fifteen (15) days thereafter, Seller shall provide the named third party with the
goods and/or services upon the same terms and conditions as are contained in this Agreement, and
shall aggregate Purchaser’s and all such third parties’ volume for purpose of determining the prices
and discounts of the goods and/or services provided to each of the parties. Notwithstanding the
foregoing, Seller agrees that Purchaser and such third parties are independent entities and that with
the exception of aggregating purchase volumes (a) Seller shall deal with each such party
independently, and (b) Purchaser is not a guarantor or surety for any such third parties and is not
responsible in any way for any actions or in-actions of such third parties, including, without limitation,
any disputes for non-payment which may arise between Seller and any such third party.
22. Notices. All notices required by this Agreement or otherwise shall be in writing, sent to the attention
of the following:
For Purchaser: _____________________________
_____________________________
_____________________________
_____________________________
with a copy to:
_____________________________
_____________________________
_____________________________
For Seller:
_____________________________
_____________________________
_____________________________
or at such other address as a party may indicate in writing as herein provided. Notices shall be deemed
given on the earliest of the date received, ( ) business days after delivery to a nationally recognized
overnight courier, ( ) business days after proper mailing, or the date that receipt of such notice is
rejected or refused. Notwithstanding the foregoing, Seller’s invoices may be sent by ordinary mail.
23. Amendments. This Agreement cannot be amended or modified except in writing, signed by or on
behalf of the persons to be bound thereby.
24. Survival. Notwithstanding the termination or expiration of this Agreement, and except as otherwise
stated in this Agreement, those obligations contained herein that by their terms or nature are intended
to survive such termination or expiration shall do so including, as an example and without limitation,
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