独家供货协议英文

Document Information Document Name Sole Source and Supply Agreement Chapter Sale of Goods Chapter Editor Stephenson Harwood 1 October 2004 Copyright LegalS Ltd 2004 Please consult your product licence agreement 1 SUPPLY AGREEMENT TABLE OF CONTENTS 1 DEFINITIONS 2 2 SUPPLY AND PURCHASE 3 3 PURCHASE ORDERS 4 4 SPECIFICATIONS 5 5 INSPECTIONS AND TESTING 5 6 INTELLECTUAL PROPERTY RIGHTS 6 7 BUYER MINIMUM ORDER CRITERIA 7 8 TECHNICAL SUPPORT 8 9 PRICE 8 10 PAYMENT 9 11 INABILITY TO SUPPLY 11 12 DELIVERY 11 13 INSURANCE AND RISK OF LOSS 12 14 TAXES 13 15 TITLE 13 16 TERM AND TERMINATION 13 17 WARRANTIES AND INDEMNIFICATION 15 18 CONFIDENTIALITY 18 19 NO WAIVER 19 20 NOTICES 19 21 FORCE MAJEURE 20 22 INDEPENDENT CONTRACTORS 21 23 MISCELLANEOUS 22 24 ASSIGNMENT 22 25 ENTIRE AGREEMENT 22 26 AMENDMENTS 22 27 HEADINGS 22 28 SEVERABILITY 23 2 29 APPLICABLE LAW AND JURISDICTION 23 EXHIBIT A PRODUCT LIST 25 EXHIBIT B PRODUCT DEMAND FORECAST 25 EXHIBIT C SPECIFICATIONS 25 EXHIBIT D PRICE LIST 25 1 THIS SUPPLY AGREEMENT is made on the day of 20 1 BETWEEN Supplier Name of Supplier a company incorporated in and existing under the laws of Address Legal Representative Supplier Buyer Name of Buyer a company incorporated in and existing under the laws of Address Legal Representative Buyer WHEREAS A Supplier carries on business as a developer manufacturer and Supplier of Type of Product s B Buyer carries on business as a retailer of the product s described in recital A the Products manufacturer of Type of Finished Product s incorporating the product s described in recital A C Supplier has agreed to sell to Buyer the aforesaid product s on the terms and conditions hereinafter appearing and D After consultations the parties agree that Buyer will purchase all of its requirements for the Products from Supplier 2 NOW THEREFORE after reaching a consensus through consultations conducted on the basis of the principles of equality free will and good faith the parties conclude the following agreement 3 1 Supply contracts are a type of sale and purchase contract The main points which distinguish a supply contract from a general sale and purchase contract are that the former specifies the method for determining the minimum purchase quantity by the Buyer and the minimum sales price for the subject matter of the contract during the term of the contract 2 Optional recital if Supplier is the major or sole source provider to Buyer There are several clauses in this agreement that are specific to major or sole source providers 3 Despite the fact that contractual freedom is one of the most important principles of the Contract Law and that the terms of a contract may be freely stipulated by the parties thereto the issues of whether the terms of the contract are complete and whether its provisions are specific and explicit will to a great extent determine whether it enters into effect whether it will be performed smoothly and ultimately whether the objective of the contract will be achieved On the other hand the principle of contractual freedom is subject to limitations e g contracts which are concluded on the basis of a major misunderstanding and contracts which at the time of conclusion were manifestly unfair can be amended or cancelled Sino foreign equity joint venture contracts Sino foreign cooperative joint venture contracts and contracts for the Sino foreign cooperative exploration and development of natural resources performed in the People s Republic of China may only be governed by the laws of the People s Republic of China furthermore the parties to such contracts are not permitted to freely 2 1 DEFINITIONS 1 1 Affiliate shall mean i a corporation performing activities relating to Buyer s business in which Buyer owns and controls directly or indirectly at least fifty percent 50 of the outstanding shares entitled to vote for the board of directors ii a franchisee or licensee of Buyer or iii a joint venture with a third party x which joint venture performs activities relating to Buyer s business and y in which Buyer owns or controls at least twenty percent 20 equity interest 1 2 Products shall mean Supplier s Product for Insert description as more fully described in Exhibit A The parties agree that from time to time and subject to mutual agreement the parties may amend the Products list and descriptions in Exhibit A When used without capitalization the term products replace products with other term as necessary shall refer to products generally and not just those manufactured by Supplier 1 3 Intellectual Property shall mean all rights of a person or entity in to or arising out of i any patent including inventions utility models and designs ii well known trademarks and registered trademarks including product trademarks service marks collective marks and certification marks iii copyrights and other rights relating thereto and iv any intellectual property protected by other laws4 1 4 Specifications means the specifications for the Products as set forth in Exhibit A 1 5 Purchase Order means a written order from Buyer or any of its Affiliates delivered to Supplier requesting Supplier to manufacture and sell the Products and stating the proposed unit numbers and specifications of the Products the location at which the Products will be installed if any and any special conditions thereof that might affect the manufacture installation or testing of the Products shipping instructions any request for Supplier to supply labour for installation a requested testing schedule and procedure and the requested delivery date The Purchase Order may also include a reference to a Technical Proposal sent by Supplier to Buyer including such information as price scope of work system functionality and delivery schedule select the law that is to govern the resolution of contractual disputes According to Articles 12 and 131 of the Contract Law the main terms of a sale and purchase contract include the following particulars the names of the parties and their domiciles the subject matter quantity quality price or remuneration term place and method of performance liability for breach of contract method of dispute resolution packaging method inspection standards and method settlement method the language of the contract and its effectiveness 4 Traditional intellectual property was restricted to patents trademarks and copyrights However in modern intellectual property law intellectual property has been greatly expanded e g computer software The term other laws includes laws statutes measures regulations etc of the People s Republic of China and international conventions to which the People s Republic of China is a party 3 2 SUPPLY AND PURCHASE 2 1 On and subject to the terms and conditions of this Agreement Supplier agrees to manufacture and sell to Buyer and Buyer hereby agrees to purchase from Supplier all not less than per cent of Buyer s annual requirements for the products described or listed in Exhibit A to this Agreement the Products 5Optional Clauses For Supplier and Buyer Exclusivity 2 2 and 2 3 2 2 Supplier Exclusivity Provided that Buyer fulfils all its obligations pursuant to this Agreement Supplier shall not without Buyer s prior written consent sell or supply or permit any other person or entity to sell or supply any Products to any third party in Territory carrying on business which is competitive or may compete with that carried on by Buyer 6 2 3 Buyer Exclusivity and Sole Source For so long as Supplier manufactures and sells to Buyer its required supply of the Products Buyer agrees to purchase all of its requirements of the Products from Supplier If Supplier fails to provide Buyer with all its required supply of the Products ordered pursuant to this Agreement on any particular Purchase Order on the delivery dates reasonably required by Buyer such failure shall not be considered a breach of this Agreement but will entitle Buyer to purchase enough equivalent products from a third party to fulfil the particular Purchase Order The foregoing notwithstanding subject to Buyer s fulfilling its obligations set forth in Section 7 Buyer Minimum Order Criteria of this Agreement Supplier s obligations pursuant to Section 2 2 shall remain in full force and effect 2 4 Buyer Forecast Buyer estimates that its requirements for the Products in the years ending 20 to 20 will be as set out in Exhibit B Product Demand Forecast to this Agreement OR 2 5 Forecasts Buyer shall provide Supplier with a forecast of its requirements for Products in respect of each calendar month during the continuance in force of this Agreement Each such forecast shall be provided not later than months prior to the calendar month to which it relates It is expressly acknowledged by the parties that all such forecasts shall be indicative 5 These optional clauses are appropriate for the drafter that wants to include more specific language and provisions regarding supplier exclusivity and buyers agreement to buy only from supplier provided that supplier can provide sufficient capacity Clause 2 6 covers the issue of sufficient capacity without reference to exclusivity 6 Note that it is assumed that the drafter will include this clause in their final contract Clause 2 2 is referenced throughout this model contract in clauses 2 3 6 3 7 1 and so on If Clause 2 2 is deleted the drafter will also need to revise or even delete these other clauses 4 of Buyer s estimated requirements but shall not constitute legally binding purchase orders for the purposes of clause 2 of this Agreement 2 6 Supplier warrants to Buyer that it will make available sufficient manufacturing capacity ensure supplies of sufficient quantities of Products to satisfy all of Buyer s requirements in all both such years provided that Buyer gives Supplier not less than Period written notice prior to the commencement of each such year of its intention to purchase its entire requirement for the Products from Supplier Optional Clause Regarding Product Permits 2 7 Permits Prior to the installation of the Products Buyer shall procure and pay for all necessary licenses permits authorisations and inspections required in connection with the Products Supplier shall not be responsible for any failure of the Products or their installation to comply with codes regulations standards of appropriate government agency or department 3 PURCHASE ORDERS 3 1 All supplies and purchases of Products pursuant to this Agreement shall be made in accordance with individual purchase orders placed by Buyer with Supplier Acceptance by Supplier of any such purchase order shall be indicated by written7 acknowledgement thereof by Supplier In the event of any conflict between the terms and conditions of any purchase order and the terms and conditions of this Agreement the latter shall prevail subject to the express agreement by the parties that the former should prevail 3 2 Cancellation of Purchase Order Buyer shall have the right to cancel any purchase order or part thereof by giving written notice to Supplier not later than thirty 30 days after such purchase order was placed In such event Supplier shall cease all work in relation to such cancelled purchase order but shall be entitled to receive from Buyer subject to the production of such documentary evidence as Buyer may reasonably require reimbursement of costs incurred by Supplier in connection with preparatory work undertaken prior to the giving of such written notice including without limitation materials and labour costs 3 3 Personnel for Installation or Other Assistance Any request that Supplier supply labour at the delivery site s for installation or other assistance shall be stated in the Purchase Order and the cost of such labour including any premium for overtime shall be negotiated for each order 7 Pursuant to Article 11 of the Contract Law the term in writing refers to a form which is capable of tangibly representing its content such as written instruments letters and data messages including telegrams telexes facsimiles electronic data exchange and e mail messages 5 4 SPECIFICATIONS 4 1 Products shall meet the specifications stated in Exhibit C to this Agreement or such other specifications as the parties may at any time agree in writing The parties acknowledge that such specifications may need to be adjusted based on performance quality testing at Buyer s plant Supplier undertakes to give to Buyer not less than months prior written notice of any changes to its its suppliers processes or raw materials used in the manufacture of the Products and shall consult Buyer in relation to any possible adverse effects on the Products Buyer s manufacturing processes and not implement any such change without Buyer s prior written consent 4 2 Notwithstanding clause 4 1 of this Agreement Supplier shall have the right to adjust the specifications of the Products at any time without Buyer s prior written consent if such adjustment is required to comply with any law or regulation of any kind whatsoever 4 3 Changes Delays At any time prior to delivery Buyer may request in writing any substitutions deviations additions or deletions hereinafter referred to as Changes in the Products and in the specifications or drawings incorporated in this Agreement or the Purchase Order All of the terms and conditions of this Agreement shall apply to such Changes If Supplier s performance is delayed by any such Changes or by other causes within control of Buyer Buyer agrees to reimburse Supplier for reasonable and documented expenses incurred as a result of such delay including without limitation the costs of storing maintaining repairing and refurbishing Products demurrage labour and material escalation and pull out charges Upon request by Buyer Supplier shall provide to Buyer an itemized list of all such expenses with supporting documentation In such event Buyer also agrees to excuse the delay and accept Supplier s performance at any appropriately deferred completion date 5 INSPECTIONS AND TESTING 5 1 All the Products shall be inspected by Buyer within days after delivery thereof Buyer reserves the right by giving notice to Supplier not later than days after such delivery to reject any Products which are not of merchantable quality are not fit for the purpose for which they were intended contain defects in materials or workmanship have suffered damage or which fail to meet the specifications referred to in clause 4 of this Agreement In the absence of any such notice Buyer shall be deemed to have accepted the Products 5 2 Rejected Products shall be returned to Supplier at Supplier s Buyer s expense promptly after any such notice is given Supplier shall at its option either refund the purchase price inclusive of insurance and delivery charges paid by Buyer in respect of any such rejected Products or deliver to Buyer at no extra charge replacement Products 6 5 3 Each Purchase Order and acceptance thereof shall state the procedure and schedule for testing of the Products 6 INTELLECTUAL PROPERTY RIGHTS Optional Clause Regarding IP Rights 6 1 Supplier Buyer shall own all rights title interests and fruits in and to the Products including any Intellectual Property rights therein 6 2 Data drawings specifications or other technical information furnished in writing or otherwise by either party to the other pursuant to this Agreement shall in no event become the property of the recipient and shall be used only to enable the parties to perform their obligations hereunder They shall not be duplicated or disclosed to any third party or used in whole or in part for any other purpose The furnishing of data drawings specifications or other technical information shall not be construed as granting to the recipient any proprietary rights of any kind whatsoever express or implied Optional Clause Regarding a Licence Grant from Supplier to Buyer 6 3 Licence Grant Supplier grants to Buyer and its designated Affiliate s as applicable a non exclusive worldwide perpetual irrevocable royalty free fully paid up license to use the Products product components for which the Supplier holds the intellectual property rights as stated in Clause 6 1 Without limiting the foregoing Buyer may grant to its designated Affiliate s to which it has sold leased or otherwise transferred the Products or which has purchased the Products directly from Supplier or any third party agent of Supplier a sub license in and to its rights in the Products product components co extensive with the rights granted hereunder by Supplier to Buyer Optional Clause Regarding Ownership of Modifications to Product 6 4 Ownership of Modifications As between Buyer and Supplier subject to and with exception of Supplier s ownership of the Products or specific product component s as set forth in section 6 1 Buyer shall own all right title and interest in and to any permitted modifications and derivative works made from or to the Products on behalf of Buyer including all Intellectual Property rights therein Buyer grants Supplier a non exclusive worldwide perpetual irrevocable royalty free fully paid up license to use and copy any such modifications and to sub license any such modifications and derivative works to any licensee other than a business described in section 2 2 Nothing in this clause 6 4 should be construed 7 to allow Buyer to modify or make derivative works from the Products without the express written consent of Supplier 7 BUYER MINIMUM ORDER CRITERIA 7 1 Minimum Order In order to maintain the exclusivity granted in Section 2 2 Buyer including all orders from its Affiliate s shall annually order at least the following amounts of the Products from Supplier a From Date through Date Buyer shall place cumulative orders of Products in an amount of Dollars b From Date through Date Buyer shall place cumulative orders of Products in an amount of Dollars and c From Date through Date Buyer shall place cumulative orders of the Product in an amount of Dollars 7 2 In the event that Buyer fails to order the minimum amounts of the Product set forth above but such orders nonetheless total at least seventy five percent 75 of such minimum amounts such failure shall not be considered a breach of this Agreement but Buyer may only maintain the exclusivity in 2 2 by placing additional orders to meet the minimum amounts within the first quarter of the following year 7 3 In the event that Buyer fails to order the minimum number of the Products set forth above and does not correct any such shortcoming pursuant to section 4 2 such failure shall not be deemed a breach of this Agreement but shall allow Supplier to terminate the restriction that Supplier limit certain sales to Buyer exclusively as set forth in section 2 2 7 4 For the purpose of determining whether Buyer has placed sufficient orders to meet the performance criteria set forth in this section an order shall be defined to include all of the following a The receipt by Supplier of a written Purchase Order from Buyer b The receipt by Buyer of Supplier s written acceptance of the Purchase Order c The receipt by Supplier of Buyer s deposit of ten percent 10 of the purchase price and 8 d The receipt by Supplier on a continuing basis of all payments timely made by Buyer with respect to a particular order based on issued written payment notices For the purposes of this section 7 an order placed by Buyer or an Affiliate directly or indirectly through an authorised agent licensee distributor integrator or broker of Supplier s shall be considered an order by Buyer from Supplier 8 TECHNICAL SUPPORT Within one hundred and twenty 120 days of the Effective Date the parties shall negotiate and enter into a Separate Technical Support Agreement pursuant to which Supplier would provide technical support to Buyer regarding use of the Product 9 PRICE8 9 1 The prices payable by Buyer for the Products are set out in Exhibit D to this Agreement and shall be exclusive of any taxes packaging insurance and delivery