Purchase Agreement-standard by GarySu2

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									                                         PURCHASE AGREEMENT

       This Sales Agreement (the “Agreement”) is entered into to be effective on (the "Effective Date"),
by and between COMPANY.(“SELLER”), an entity incorporated under the laws of Country, registered at Rm.
ADDRESS and COMPANY., an entity incorporated under the laws of Country, registered at
ADDRESS(“BUYER”).

1. DEFINITIONS

The following terms shall have the following meanings under this Agreement:

1.1 Documentation
    It means computations, configurations, data, designs, drawings, manuals (including without limitation
    installation manuals, owner's manuals and service manuals), models, photographs, plans, renderings,
    samples, schematics, sketches, specifications and any other written and tangible materials provided by
    BUYER, or developed by SELLER in connection with this Agreement.

1.2 Products
    It means those products identified on Schedule 1 attached hereto and fully incorporated herein, and sold to
    BUYER pursuant to this Agreement. The Products covered by this Agreement may be changed from time
    to time upon the written consent of both parties.

1.3 Specifications
    It means the descriptive material itemizing the functional and operational requirements of the Products and
    such other technical specifications, drawings and other material as identified in Schedules 3 attached hereto
    and fully incorporated herein. Schedule 3 consists of the specification for the Products developed by
    SELLER and is hereinafter sometimes referred to as “SELLER’S Specifications. The Specifications
    covered by this Agreement may be changed from time to time upon the written consent of both parties.

1.4 NRE
    It stands for non-recurring engineering. NRE includes, but not limited to development cost such as
    development labor, tooling, sampling, test fixtures, third parties’ test expenses, safety and agency’s charges,
    and expenses that differ from Seller’s standard development, operation process and protocol as identified in
    Schedule 2 attached hereto and fully incorporated herein. The NRE payments will be based on specific
    project as stipulated in Schedule 3 and agreed upon from time to time by the Parties. And BUYER should
    follow the schedule as identified in Schedule 2 to pay NRE charges.

2. SUPPLY OF PRODUCTS

2.1 Sales
    SELLER agrees to supply the Products to conform to the Specifications, and to sell the Products to BUYER
    in accordance with the terms and conditions of this Agreement. Specific quantities of Products may be
    ordered by BUYER for purchase, by the placement of a purchase order issued by BUYER. BUYER and
    SELLER shall be bound by any purchase order placed by BUYER and accepted or deemed accepted by
    SELLER under Section 3.2 of this Agreement.

2.2 Forecast and Flexibility
    A rolling six (6) month’s forecast (“Forecast”) will be provided by the 25th day of each month by
    BUYER to SELLER. Notwithstanding the flexibility of quantity listed in the table below, BUYER
    shall be responsible for any and all expenses and damages incurred by SELLER in connection
    with long-lead-time parts and unique parts price list as identified in Exhibit E. Forecast issued by
    BUYER to SELLER shall be fully binding to BUYER according to the flexibility requirements
    specified as below:

                                    PERCENTAGE OF FLEXIBILITY
                                                              Allowable Forecast Quantity Changes
               Time after Forecast provided by BUYER           % Increase            % Decrease
                              1st month                           0%                      0%
                              2nd month                           20%                    20 %
                              3rd month                           40%                     40%
                              4th month                           60%                     60%
                         th
                        5 month & 6th month                      100%                    100%

3. PURCHASE ORDERS

3.1 Placement
    BUYER may place firm purchase orders for the delivery of Products by SELLER. Each firm purchase
    order shall specify a delivery date of not less than sixty (60) days following the date of the purchase order.
    In no event shall BUYER cancel any purchase order issued sixty (60) days before delivery date. BUYER
    shall be entitled to reschedule the purchase order, but the rescheduled delivery date shall never be thirty (30)
    days later than the original specific date.

3.2 Acceptance
    SELLER shall accept and acknowledge all purchase orders which are placed by BUYER, in conformance
    with the terms of this Agreement, within three (3) business days after it is transmitted by e-mail or
    facsimile. Any purchase order not placed in conformance with the terms of this Agreement must be
    rejected by written notice from SELLER to BUYER within three (3) business days after receipt of such
    purchase order or, otherwise, will be deemed accepted by SELLER. In the event that SELLER uses a form
    of acknowledgment that conflicts in any way with this Agreement or BUYER’S form of purchase order, the
    terms of this Agreement and BUYER’S purchase order shall be controlling.

3.3 Guaranty
    BUYER shall ensure the quantity of the first purchase order for the product which is 5,000 pcs.

4. PAYMENT TERMS

4.1 Prices.
    The total purchase prices for the Products are set forth in Schedule 4 attached hereto. Prices for any of the
    Products may not be increased by SELLER during the term of this Agreement without the prior written
    consent of BUYER. The prices as set forth in Schedule 4 does not include any governmental taxes, excise
    taxes, tariffs, withholding taxes or other governmental charges that may be imposed on sale, transportation,
    production, storage or export of the Products. Buyer shall pay any and all such taxes and charges and
    SELLER, its agents and distributors shall have no liability therefore.

4.2 Payment of Purchase orders.
    A. Invoices issued by Seller shall, including, but not limited to, clear description of the Products, part
       number, quantity, unit price, total amount, delivery term and bill to party.




                                                     PAGE 5
    B. The payment shall be made in U.S. dollars and wire transferred to SELLER’s account pursuant to the
       instructions provided in Schedule 5.

    C. BUYER shall follow the schedule as below to pay payments for the first purchase order subject to
       Section 3.3:
                 % of selling amount of
         Step                                                       Time points
                 the first purchase order
          1.                50%           Effective Date of this Agreement
          2.                50%           Before Shipment

    D. BUYER shall follow the schedule as below to pay payments for the following purchase order:
              % of selling amount of
         Step                                                  Time points
              the first purchase order
          1.             50%           Acceptance of Purchase order by SELLER
          2.             50%           Before Shipment

5. DELIVERY

5.1 Shipment
    SELLER will ship the Products F.O.B. Xiamen, at BUYER’S cost. Title to the Products and risk of loss or
    damage shall pass from SELLER to BUYER upon delivery of the Products to BUYER’S preferred carrier
    as set forth and listed on purchase order, or other carrier specified by BUYER.

5.2 Rescheduling.
    BUYER may request changes in delivery dates appearing in its purchase orders at no charge provided
    written notice of such change is received by SELLER not less than thirty (30) days prior to the rescheduled
    delivery date to which the change pertains. In no event, other than upon a breach of this Agreement or as
    otherwise contemplated by this Agreement, shall BUYER cancel any purchase order once the purchase
    order has been accepted by SELLER unless mutually agreed upon by BUYER and SELLER.

5.3 Late Shipments
    SELLER shall deliver all Products on the dates as specified in purchase orders subject to Section 5.1.
    Shipments are considered late if Products are not delivered to BUYER’S preferred carrier on the confirmed
    delivery date as specified in purchase orders subject to Section 5.1. Upon BUYER’s request, SELLER will
    be responsible for cost difference in airfreight or sea freight charges incurred for the shipment of Product
    resulting from late shipments attributable to SELLER. BUYER shall be responsible for all airfreight
    charges incurred, at BUYER’S request, to obtain early delivery prior to the normal delivery schedule
    provided above.
    If late delivery occurs, the Seller must pay a penalty, and the Buyer shall have the right to lodge a claim
    against the Seller. The rate of penalty is charged at 0.1% of the shipment value for every day. The total
    penalty amount will not exceed 3% of the shipment value. The penalty shall be deducted by the paying
    bank or the Buyer from the payment.

6. INTELLECTUAL PROPERTY

6.1 Trademark License
    SELLER shall have no right, title or interest in any BUYER name, trade name, or Trademarks, registered
    or not, anywhere in the World, pursuant to this agreement. SELLER’S sole privilege under this Agreement
    is a non-exclusive, limited license to sell Product to BUYER, some of which bear in whole or in part
    Trademarks owned by BUYER. Upon the termination or expiration of this Agreement, SELLER’S limited



                                                   PAGE 5
     privilege to sell products using such Trademarks shall immediately cease. Any Trademarks used in the
     course of this Agreement must be reviewed and approved in advance, in writing, by BUYER.

6.2 Trademark BUYER.
    SELLER shall affix the Trademarks on all Products manufactured pursuant to this Agreement, and
    packaging therefore, in a manner as specified by BUYER. SELLER shall not use the Trademarks in any
    manner inconsistent with the instructions of BUYER nor on any products except as manufactured pursuant
    to this Agreement. Upon the expiration or termination of this Agreement, SELLER shall immediately
    discontinue the use of the Trademarks, and thereafter shall not use the Trademarks, or marks, or names that
    are confusingly similar thereto, directly or indirectly in connection with its business or that of its affiliates
    or principals. During the term of this Agreement, SELLER will promptly notify BUYER in the event that
    it learns of any infringement or unauthorized use of the Trademarks by any person.

6.3 Proprietary Designs of Product.
    All rights, title, and interest in and to the proprietary designs, intellectual property, and information related
    to the Products shall be remained and reserved to SELLER.

6.4 All Documentation, Specifications and Trademarks owned by BUYER or SELLER prior to entering into
    this Agreement shall remain the property of each respective party, and the other party shall have limited use
    under this Agreement for distribution purposes of the Product only. SELLER’S Specifications will remain
    the property of SELLER; and BUYER’S Specifications shall remain the property of BUYER. BUYER
    shall be protected from disclosure of Documentation or Specifications in accordance with the provisions of
    Article 8 of this Agreement.

7.   WARRANTY, SUPPORT, ETC.

     Seller warrants that the Products will be free from defects in design, materials and workmanship for a
     period of 13 months, or for an applicable period of time agreed upon by both parties, whichever is longer,
     from the shipment date to Buyer (the “Warranty Period”). The Warranty Obligations as provided by the
     Seller that the Product and its relevant parts, items, components and accessories:

7.1 shall be free from any defects in design, material and workmanship throughout the Warranty Period;

7.2 shall be acceptable in appearance, fit and finish;

7.3 shall fulfil relevant safety regulations and shall otherwise be safe and durable;

7.4 shall be fit for all purposes for which it is commonly supplied and will perform all its functions;

7.5 shall have been manufactured in accordance with good industry practice;

7.6 shall comply with all applicable laws and industry standards;

7.7 shall not infringe the Intellectual Property rights of any person or entity, and that there was no infringement
    of the Intellectual Property rights of any person or entity in the manufacture of the Product or any of its
    parts, items, components and accessories;

7.8 shall be free from any and all claims whatsoever by any person or entity;




                                                      PAGE 5
8. QUALITY ASSURANCE

8.1 Quality Certification.
    SELLER represents that it maintains a documented quality procedure and agrees to maintain the procedure
    throughout the term of this Agreement. BUYER seeks and encourages the cooperation of SELLER to
    implement and maintain a certified quality assurance program under the ISO 9000 and/or QS 9000.

8.2 SELLER'S Inspection
    SELLER shall inspect the Products before delivery to assure compliance with the Specifications subject to
    Schedule 3. SELLER shall not deliver any Products which fail such inspection. Upon request by BUYER,
    SELLER shall provide the record of such finished goods’ inspection.

8.3 Defective on Arrival.
    After BUYER’s inspection,, if Products inspection passing rate in less than 98% of respective purchase
    order quantities, it will be deemed to reject and return products; and if Products inspections pass rate in
    more than 98% of respective purchase order’s quantities, it will be deemed to accept Products, and BUYER
    should issue the RMA request form (reference to Schedule 6) to SELLER in fifteen (15) days, the SELLER
    would warrant that replace all defective Products

8.4 Traceability.
    SELLER agrees to give each Product a unique serial number, which shall be recorded for purposes of
    defect and warranty traceability and provided to BUYER with the order. SELLER shall also maintain a
    record keeping system with such data and provide BUYER with access to such data as necessary.

9. SERVICE
   For any service related issues not herein agreed upon, Parties agree to refer to the Service Agreement which
   may be separately agreed upon and executed prior to or after the execution of this Agreement.

10. CONFIDENTIALITY
    Each party has executed, in association with this Agreement, a reciprocal non-disclosure agreement. Said
    reciprocal non-disclosure agreement is fully incorporated herein and shall remain in full force and effect
    throughout the term of this agreement.

11. LIMITATION OF LIABILITY

11.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL
     OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST
     PROFITS, LOSS OF INCOME OR OTHER TANGIBLE BUSINESS LOSS) ARISING OUT OF OR IN
     CONNECTION WITH THIS AGREEMENT, THE DEVELOPMENT SERVICES, THE PRODUCTS OR
     THE PROTOTYPES, WHETHER IN AN ACTION IN CONTRACT OR TORT OR OTHERWISE, EVEN
     IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2 EITHER PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT,
     REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN
     CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF THE PRODUCTS
     IN THE DIRECTLY APPLICABLE PURCHASE ORDER WHICH IS THE SUBJECT OF CAUSE OF
     SUCH ACTION.




                                                   PAGE 5
11.3 THE LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE A FUNDAMENTAL
     PART OF THE BASIS OF EACH PARTY’S BARGAIN HEREUNDER, AND NEITHER PARTY
     WOULD ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.
12. MISCELLANEOUS

12.1 Relationship of Parties
     This Agreement does not create the relationship of principal and agent between BUYER and SELLER nor
     shall it be construed as creating any form of legal arrangement which would impose liability upon one party
     for the act or omission of the other party.

12.2 Severability
      If any provision of this Agreement shall be determined by an arbitrator to be invalid, illegal, or
     unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be
     affected or impaired thereby.

12.3 Entire Agreement
     With the exception of that certain Service Agreement of even date herewith, this Agreement (including any
     schedules attached hereto) contains the entire agreement of the parties with respect to the Products to be
     furnished hereunder (except for any additional terms or conditions that may be contained in any purchase
     order that may be issued by BUYER pursuant to this Agreement). Any modification or amendment of any
     term or provision of this Agreement shall not be valid or binding unless the same is in writing and signed
     by each party hereto.

12.4 Assignment.
    Neither party shall assign any of its rights or obligations under this Agreement without the prior written
    consent of the other party, which consent may be withheld at the other party's sole and absolute discretion.
    This Agreement shall be binding upon and shall inure to the benefit of the legal successors and assigns of
    the parties hereto.

12.5 Governing Law and Venue
    This Agreement shall be governed by and construed in accordance with the laws of the Republic of China,
    and the parties hereby confirm that the Convention for the International Sale of Goods shall not be
    applicable. The parties also expressly agree that any dispute relating directly or indirectly to this Agreement
    must be brought in Taipei, Taiwan, pursuant to Section 12.7 below.

12.6 Waivers
     No waiver of any of the terms or conditions of this Agreement by either party shall be valid or binding
     unless the same is in writing and signed by an authorized officer of the waiving party. A waiver by either
     party or a breach of any of the provisions of this Agreement shall not be construed as a waiver of any
     further breach of the same provision or of any other provision of this Agreement.

12.7 Arbitration
     Any dispute arising out of this Agreement shall be submitted to Taiwan Taipei District Court.

12.8 Attorneys' Fees
     In the event that any arbitration or other proceeding is brought to enforce or interpret the provisions of this
     Agreement, the prevailing party shall be entitled to an award for its reasonable attorneys' fees and costs, as
     determined by the arbitrator appointed pursuant to Section 11.8 above.

12.9 Heading



                                                     PAGE 5
      Headings used in this Agreement are for the purposes of convenience only and shall not affect the legal
      interpretation of this Agreement.

12.10 Draftsmanship
    This Agreement shall be deemed jointly drafted and no ambiguities, duties or obligations shall be resolved
    against the deficit party.

12.11 Counterparts
    This Agreement may be executed in one or more counterparts, each of which shall be deemed an original
    but all of which together will constitute one and the same instrument.




IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.

BUYER                                                   SELLER

By:                                                     By:


Print Name:                                             Print Name:    ____________


Title:                                                  Title:           ___________


Date:                                                   Date:


                                                   PAGE 5
                    SCHEDULE 1

                    PRODUCTS

Type   Model Name            Description   Remark
                                        SCHEDULE 2

                          Development Time-Line and NRE Charges

 Development Time-Line

                 Events                       Items                       Time-Line




    If deadline miss occurs, the Seller must pay penalty to BUYER. The rate of penalty is charged
    at 0.1% of the NRE charges for every day. The total penalty amount will not exceed 3% of the
    NRE charges.

 NRE charges and payment schedule

               No.                    Amounts                        Payment date




    BUYER should follow the payment schedule as above to pay NRE charges. SELLER would
    not process any development job which mentioned in Development Time-Line before
    receiving the payment, if BUYER did not pay NRE charges on schedule, and BUYER have no
    right to ask SELLER penalty for the development delay.
 SCHEDULE 3

SPECIFICATIONS
SCHEDULE 4

  PRICES


The First Order   The following Orders
    SCHEDULE 5

PAYMENT INSTRUCTION
                                      SCHEDULE 6

                   Protech RMA Request Form
Applied Company:                                                 Date:
Contact Person:                                                  Page:1 of 1
E-mail:
DOA NO. (BY PROTECH BU):                            □DOA □Regular RMA
   No.     Model     Serial   Warranty     *Defect Description   Environment Remark
                    Number     Status
    1

    2

    3

    4

    5

    6

    7


* Please provide detailed written description about the defect under Defect
Description. By providing us with a detailed defect description will allow us to
provide a faster repair service for you.




Sign
by                                .

								
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