1. ACCEPTANCE AND AGREEMENT. Seller agrees to perform the services (“Services”) and/or provide the goods or deliverables described in a PO (collectively referred to as “Goods”), in accordance with the terms and conditions in this Agreement and the terms and conditions on the face of the PO, which terms are incorporated herein by reference. Upon acceptance of a PO, shipment of Goods or commencement of Services, Seller shall be bound by the provisions of this Agreement, whether Seller acknowledges or otherwise signs this Agreement or the PO. A PO does not constitute a firm offer and may be revoked by SINCO at any time prior to acceptance. Any terms or conditions contained in any acknowledgment, invoice, or other communication unilaterally issued by Seller which are inconsistent with the terms and conditions of this Agreement shall not in any way govern or affect the contractual relationship between SINCO and Seller. To the extent that a PO might be treated as an acceptance of Seller’s prior offer, such acceptance is expressly made on condition of acceptance by Seller to the terms of this Agreement and shipment of the Goods or beginning performance of any Services by Seller shall constitute such acceptance. SINCO hereby reserves the right to reschedule any delivery or cancel any PO issued at any time prior to shipment of the Goods or prior to commencement of any Services. In such event, SINCO shall not be subject to any claims, charges or other fees, whether by Seller or otherwise, as a result of such cancellation.

2. DELIVERY. Time is of the essence in this PO. Delivery of the Goods and Services shall be made pursuant to the schedule, via the carrier, and to the place specified on the face in the PO unless changed by written instructions from SINCO prior to shipment. Seller shall promptly inform SINCO of any anticipated delay in shipment. SINCO reserves the right to return, shipping charges collect, all Goods or Services received more than three business days in advance of the specified delivery date or after the specified delivery date. If this PO calls for delivery in instalments and Seller fails to deliver an instalment on the designated delivery date, SINCO may decline to accept subsequent instalments and terminate the balance of this PO. If no delivery schedule is specified in the PO, the PO shall be fulfilled promptly and delivery will be made by the most expeditious form of transportation by air, land or sea . If no carrier is specified in the PO, Seller shall consult SINCO to determine the carrier. In the event Seller fails to deliver the Goods or Services within the time frame specified in the PO, SINCO may, at its option, decline to accept the Goods or Services and cancel the PO without any liability on its part or may demand its allocable fair share of Seller’s available Goods and cancel the balance of the PO without liability on its part. Seller agrees to fully indemnify SINCO against any and all claims, liabilities, damages, losses, and expenses, including attorneys’ fees and cost of suit arising out of or in any way connected with Seller’s failure to deliver the Goods or Services in accordance with the time frame specified in the PO. Seller shall package all items in suitable containers to permit safe transportation and handling. Each delivered container must be labelled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing the contents of these boxes and packages. SINCO’s PO number must appear on all shipping containers, packing sheets, delivery tickets, and bills of lading. Seller will clearly identify the country of origin of all Goods delivered and will indemnify SINCO against any expenses, duties, penalties, damages, settlements, costs or attorney’s fees incurred by SINCO in connection with Seller’s failure to identify or misidentification of the country of origin. If Seller fails to deliver the Goods or Services in accordance with the delivery terms specified by SINCO in the PO, SINCO shall be entitled, without prejudice to its accrued rights against Seller for failure to deliver the Goods or late delivery of the Goods, to obtain such Goods or Services from other sources and in such event to reject late delivery of the Seller’s Goods or Services in favour of delivery from such alternative sources, and all additional costs in obtaining such Goods or Services from such alternative sources, including SINCO’ economic and administrative costs and any positive price differential for the Goods or Services or such generic substitute or alternatives thereto accepted by SINCO, shall be borne by Seller.

3. PRICE AND PAYMENT. The price of the Goods and Services are as indicated on the face of this PO, in US dollars unless other currency is indicated, and Price is inclusive of all of Seller’s costs (including labelling, packaging, taxes, duties, insurance and handling). If the Price is omitted from the PO, the Price will be the lower of: a) the lowest prevailing market price; and b) the lowest price paid for similar Goods/Services under any prior POs issued by SINCO for Goods/Services of similar specifications. Seller hereby guarantees that the Price is Seller’s best price to any customer for the same or similar Goods/Services and is competitive with any other seller’s price for similar Goods and/or services (“Price Guarantee”). SINCO may terminate this PO in whole or in part without liability on its part if Seller breaches its Price Guarantee. In such event, SINCO has no obligation to pay any amount to Seller in excess of the price payable had the Price Guarantee been fulfilled by Seller. Seller shall keep appropriate records to demonstrate compliance with this Section. Payment terms shall be net ninety (90) days from SINCO’s receipt of invoice unless otherwise specified on the face hereof.

4. WARRANTIES. Seller warrants to SINCO and its customers that the Goods shall be free of liens, new and unused, and shall perform in accordance with their published specifications and be free from defects in materials, workmanship and design for a period of two (2) years from SINCO’s receipt of such Goods. Seller warrants to SINCO and its customers that the Goods and Services shall be manufactured and/or produced and/or provided in accordance with the specifications and requirements designated by SINCO and/or SINCO’s customers. Seller also warrants to SINCO and its customers that the Goods and Services shall be manufactured and/or produced and/or provided in accordance with all applicable laws and regulations. Goods not meeting this warranty may be returned to Seller for credit or replacement at SINCO’s option and Seller agrees to indemnify SINCO against any and all claims made against SINCO for Seller’s failure to manufacture and/or produce the Goods in accordance with this warranty. The Seller also agrees to indemnify SINCO against any and all governmental fines and penalties levied for any breach of any applicable laws or regulations. Should Goods shipped in any 90-day period to SINCO or should all Goods received by SINCO experience a failure rate of more than 3% from the same defect or more than 5% from cumulative defects during the warranty period, Seller will be legally obliged to bear all reasonable costs incurred in rectifying such failures, including testing and field-recovery costs, costs of replacing the Goods and any costs and damages incurred by SINCO.

5. INSPECTION. SINCO shall have thirty (30) days from the date of receipt of the Goods or Services deliverables and before payment to inspect them for conformity with the PO and any applicable specifications and any statements of work signed by an authorised representative of SINCO, and Goods received prior to inspection shall not be deemed accepted until SINCO has run adequate tests to determine whether the Goods conform thereto. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods by SINCO. If Goods tendered do not wholly conform to the provisions hereof, SINCO shall have the right to reject such Goods. Nonconforming Goods will be returned to Seller freight collect and risk of loss will pass to Seller upon SINCO’s delivery to the common carrier. Any Goods not rejected after a 30-day period shall be deemed accepted by SINCO.

6. TITLE AND RISK OF LOSS. Unless otherwise specified on this PO, Goods shall be delivered “Delivered Duty Paid” to SINCO’s location designated on the PO (Incoterms 2010), at which time title and risk of loss on the Goods shall pass to SINCO. If any of the Ordered Goods are destroyed prior to the time risk of loss passes to SINCO, SINCO may cancel this PO as to the destroyed Goods or require the prompt delivery of substitute Goods of equal quantity and quality.

7. CHANGES. SINCO may, by PO amendment issued to Seller, change (a) the method of shipment or packing, (b) the drawings, designs, or specifications, (c) the place of delivery, (d) the shipment date, (e) the quantity or (f) the delivery date. SINCO shall have the right to issue such PO amendments notwithstanding any other terms and conditions of this Agreement or the PO. Seller shall promptly inform SINCO of any modifications to the delivery schedule necessitated by such changes within three (3) days from receipt of a PO amendment. Within the same period, Seller shall also notify SINCO in writing of any increase or decrease in the cost of performance caused by a PO amendment and provide the necessary supporting documentation evidencing such an increase or decrease. SINCO shall have the option to make an equitable adjustment in the PO to reflect valid and reasonable cost variances by the requested SINCO changes. Seller shall advise SINCO in writing of any foreseeable part shortages, and shall advise SINCO in writing six (6) months in advance of obsolescence and/or end-of-life situations that could prevent Seller from supporting SINCO’s order for such Goods.

8. ITEMS FURNISHED BY SINCO. Unless otherwise specified by SINCO in writing, all designs, tools, patterns, drawings, data, materials, and equipment supplied or paid for by SINCO to Seller shall remain the property of SINCO, shall be used only for making the Goods for SINCO, shall be insured by Seller at replacement value, and shall be returned to SINCO in good condition upon completion of this PO. Seller assumes all responsibility for the accuracy of tooling used in the production of the Goods, whether such tooling is fabricated by Seller or furnished by SINCO.

9. INDEMNITY AND DAMAGES.

9.1 Indemnity: Seller shall indemnify, hold harmless, and at SINCO’s request, defend SINCO, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses, and expenses, including attorneys’ fees and cost of suit arising out of or in any way connected with the Goods or Services provided pursuant to a PO, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated cleanup costs; (ii) Seller failing to satisfy the guidelines for an independent contractor; (iii) any claim based on the negligence, omissions, or wilful misconduct of Seller or any of Seller’s Affiliates; (iv) Seller failing to satisfy its obligations with regard to the protection of Confidential Data as described in Section 10 below; (v) Seller failing to comply with any requirement of any applicable law and/or regulation in respect of the provision of the Goods or Services; (vi) any claim by a third party against SINCO alleging that the Goods or Services, the results of such Services, or any other Goods or processes provided pursuant to a PO, infringe a patent, copyright, trademark, trade secret, or other proprietary right of a third party, whether such are provided alone or in combination with other products, software, or processes; (vii) any claim relating to or arising from Seller’s failure to fulfil the Warranties specified at Clause 4 of this Agreement; and (viii) any claim relating to or arising from Seller’s failure to provide the Goods or Services in accordance with the terms of the PO. Seller shall not settle any such suit or claim without SINCO’s prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by SINCO in enforcing this indemnity, including attorneys’ fees. Should the use of any Goods or Services by SINCO, its distributors, subcontractors, or customers be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at its sole cost and expense, either (a) substitute fully equivalent non-infringing Goods or Services; (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for SINCO, its distributors, subcontractors, or customers the right to continue using the Goods or Services; or (d) if none of the foregoing is possible, refund all amounts paid by SINCO for the infringing Goods or Services.

9.2 Damages to SINCO: Seller acknowledges and agrees that SINCO may suffer loss or damage as a result of Seller’s material breach of this Agreement, including but not limited to any breaches arising from the matters or events set out in Clause 9.1 and if so, the Seller will be liable to compensate SINCO for such loss by payment of damages to SINCO. Seller’s obligation to pay such compensation to SINCO is in addition to Seller’s obligation to indemnify SINCO in accordance with Clause 9.1 above.

10. CONFIDENTIAL INFORMATION. Seller shall not, without first obtaining SINCO’s permission in writing, advertise, publish, or disclose the terms, details, or specifications of this PO, the amount of revenue generated or to be generated from this PO, or the fact that it has furnished or has contracted to furnish SINCO with the Goods or Services. Confidential Information means confidential or proprietary data, materials or information disclosed by SINCO to Seller: (i) in written, graphic, machine recognizable, electronic, sample, or any other tangible or visually perceptible form,; and (ii) in oral form, if it would be reasonable given the circumstances surrounding disclosure to conclude that SINCO considered such orally disclosed information confidential or proprietary (“Confidential Information”). Notwithstanding the foregoing, all SINCO information delivered by SINCO relating to this PO, including product specifications, prototypes, designs, samples, testing processes and results, quality and manufacturing procedures and requirements, customer information, software and related documentation, product or technology roadmaps, cost or price information, demand or volume information, market share, market or financial projections and other similar information, and the existence of this PO and/or Agreement and their terms and conditions, is Confidential Information without regard to designation or written confirmation as “confidential” or “proprietary”. Confidential Information is and at all times will remain the property of SINCO and SINCO’s ability to use or disclose the Confidential Information is not and will not be restricted in any way. Seller shall: (i) maintain the confidentiality of Confidential Information and not disclose it to any third party, except as authorized by SINCO in writing; (ii) restrict disclosure of, and access to, Confidential Information to its employees, contractors and agents who: a) have a “need to know” in order for Seller to perform its obligations under this PO, and: b) are bound to maintain the confidentiality of the Confidential Information by terms of nondisclosure no less restrictive than contained herein; (iii) handle Confidential Information with the same degree of care as Seller uses for its own confidential information, but in no event less than reasonable care; (iv) use Confidential Information only for the purpose of performing and, to the extent necessary, to fulfil its obligations under this PO; and (v) promptly notify SINCO upon discovery of any unauthorized use, access or disclosure of the Confidential Information, take all necessary steps to regain possession and protection of the Confidential Information and prevent further unauthorized actions or breach of this PO. Except as otherwise provided in this PO, no use of any Confidential Information is permitted, and no grant under any Intellectual Property Rights of SINCO is given or intended, including any license implied or otherwise. Seller shall not directly or indirectly export or re-export any Confidential Information to any country for which any applicable government, at the time of export or re-export, requires an export license or other governmental approval, without first obtaining the license or approval. Seller shall not reverse engineer, de-compile, or disassemble any Confidential Information. If Seller is required to access SINCO computer resources, systems or premises, Seller shall, and shall cause any person who may require access on Seller’s behalf to, first execute and deliver to SINCO, an adequate information protection and security/confidentiality agreement. Upon fulfilment, expiration, or termination of this PO or receipt of SINCO’s written request, Seller shall immediately stop using and return to SINCO all Property of SINCO and Confidential Information including without limitation all items that contain any Confidential Information, all SINCO-consigned inventory, all types of SINCO Property, all SINCO software and all other SINCO materials in Seller’s possession. Seller acknowledges that Confidential Information contains information that is proprietary and valuable to SINCO and unauthorized dissemination or use of the Confidential Information will cause irreparable harm to SINCO. Seller’s obligation to keep confidential the Confidential Information will survive for 5 years following the later of fulfilment, expiration or termination of this PO or Seller’s return or destruction of the Confidential Information and certification of such return or destruction. The provisions of this Clause shall survive the termination of this Agreement but the restrictions contained above shall cease to apply to any information which may come into the public domain otherwise than through unauthorized disclosure by the Seller or its employees.

11. TERMINATION. SINCO may terminate all or any part of this PO immediately at any time for its convenience, without liability to Seller, even for Goods or Services designated as non-cancellable/non-returnable, upon written notice to Seller. Seller will thereupon immediately: (a) stop work on the cancelled Goods or Services; (b) notify its subcontractors to do likewise; (c) cancel orders for components for the cancelled Goods or Services; (d) return unneeded components for cancelled Goods or Services to their Sellers or divert such components to jobs for other customers; and (e) broker non-returnable unneeded components for cancelled Goods. In addition to all remedies provided elsewhere in this PO and at law or in equity, SINCO also may terminate this PO immediately, without liability to Seller upon written notice if Seller: (a) fails to comply with any provision of this PO; (b) delivers a Goods or Service late; (c) provides a Goods or Service that fails to meet SINCO’s requirements; (d) delivers a Goods or Service which is defective or which does not conform to this PO; (e) fails to perform its obligations in respect of the PA as agreed or fails to provide reasonable assurances of future performance upon request; or (f) provides a Goods or Service that infringes or misappropriates any Intellectual Property Right. Upon fulfilment, expiration or termination of this PO, at SINCO’s request, Seller will transfer all records that pertain to this PO to SINCO, but retain a copy of any records required to be kept by law, rule, regulation, or in connection with any legal process or proceeding, subject at all times to applicable confidentiality obligations.

Seller may not in any event terminate all or any part of this PO except by providing SINCO with ninety (90) days’ written notice.

In the event of termination by the Seller for any reason, Seller shall provide all reasonable assistance to SINCO to enable another party chosen by SINCO to take over the manufacture and/or production and/or delivery of the Goods or Services. If, in the reasonable opinion of SINCO, the orderly transfer of the manufacture and/or production and/or delivery of the Goods or Services can only be effected if Seller continues to produce and/or manufacture and/or deliver the Goods or Services for a limited period of time, SINCO can require Seller to continue to do so for a period of up to nine (9) months from the expiration of the 90-day notice period required to be provided by the Seller. Seller shall indemnify, hold harmless, and at SINCO’s request, defend SINCO, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses, and expenses, including attorneys’ fees and cost of suit arising out of or in any way connected with the Seller’s failure to provide SINCO with all reasonable assistance as required under this Clause.

12. General

12.1 FORCE MAJEURE. Neither party will be liable for any failure to perform, including failure to accept performance of Services or take delivery of the Goods as provided, caused by circumstances beyond its reasonable control including, but not limited to, acts of God, acts of war, government action or accident, provided it promptly notifies the other party and uses reasonable efforts to correct its failure to perform.

12.2 Severability. If any provisions of this Agreement or any document made in connection with this Agreement is determined by any court, tribunal or administrative body of a competent jurisdiction to be wholly or partly unenforceable for any reason, that unenforceability shall not affect the rest of this Agreement, the unenforceable part being deemed severed and deleted and the remainder continuing in full force and effect.

12.3 Legal and Regulatory Approvals. The Seller shall be responsible for ascertaining and obtaining the necessary legal and regulatory approvals required for its employees and/or agents as may be required to be present at the site of receiving the goods to perform the Seller’s obligations under this Agreement.

12.4 Governing Law and Jurisdiction. This Agreement is governed by and is to be construed in accordance with Singapore law and the parties agree to submit to the non-exclusive jurisdiction of the Courts of Singapore. The application of the United Nations Convention on Contracts for the International Sale of Goods 1980 to this Contract is hereby expressly excluded.

12.5 Third Parties. A person who is not a party to this Agreement herein shall have no rights under the Contracts (Rights of Third Parties) Act (Cap. 53B).

12.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and together shall constitute one document.

12.7 Exclusions. Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of party or their servants, agents or employees.

12.8 Reliance. The Seller accepts that SINCO will be relying and relies on, inter alia, the skill and judgment of the Seller in relation to the design, description, manufacturing, quality, reliability, function, suitability and performance of the Goods or Services to be provided, and that any supply of samples of the Goods by the Seller to SINCO shall not in any way prejudice or affect the reliance placed by SINCO on the Seller as such.

12.9 Notices. Any notice to be served on either of the parties shall be sent to the address as stated on the PO herein or to such change of address as notified by the other party by registered post, facsimile transmission or by electronic mail and shall be deemed to have been received by the addressee within seven (7) days of posting or within twenty-four (24) hours if sent by fax or electronic mail with correct answerback.

12.10 Service of Process. Where the Seller does not have a presence in Singapore, it shall irrevocably authorize and appoint an agent who is resident in the Republic of Singapore as the Seller may by writing to SINCO inform, to accept service of all legal process arising out of or connected with this Agreement and service on such agent or such substitute shall be deemed to be service on the Seller. The Seller hereby undertakes to furnish SINCO with the name and particulars of such agent in the Republic of Singapore within seven (7) days from the date of the PO and further undertakes to inform SINCO of a substitute in the event the appointed agent no longer resides in Singapore or is no longer the Seller’s agent for the purposes hereunder within fourteen (14) days of the agent no longer residing in Singapore or no longer being the Seller’s agent for the purposes hereunder.

12.11 Variation. Subject to Clause 7 above, this Agreement shall not be varied, modified, supplemented, amended or cancelled in any respect unless such variation, modification, supplement, amendment or cancellation is expressly agreed in writing by each party or a duly authorized representative of such party. In addition to obligations of the Seller set out in the PO, the parties shall agree any other variations in writing hereto, including without limitation, such specifications with regards to printing and numbering on the Products or Services and identification of the cartons and such other documents identifying and/or listing the contents of each delivery or shipment.

12.12 Reasonableness. The Seller acknowledges that the provisions of the Agreement herein are fair and reasonable, and that the Seller accepts the same on an informed basis after having (where it deemed to be necessary by the Seller) consulted its own legal advisers.

12.13 SURVIVAL OF OBLIGATIONS. Any obligations and duties that by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.

一  采购方式
     Method of Purchase
1. 买方以采购订单的方式向卖方购买相关产品或服务,经双方签字盖章的订单与本合同具有同等效力。卖方应遵守采购订单和本合同条款

The Buyer agrees to purchase goods or services described in a purchase order (the “PO”). The PO attached with signatures and seals of Parties and the Agreement are of same effect. The Seller shall be in accordance with the terms and conditions on the face of the PO and the ones in the Agreement.

2. 买方向卖方发出的供卖方提出要约的订单仅为要约邀请,买方可随时撤回该等要约邀请。

The PO provided by the Buyer for the offer of the Seller is merely an offer invitation and may be revoked by the Buyer at any time.

3. 买方有权在产品发出或服务开始前重新安排产品或服务的交付或者取消已生效的订单,且买方不就重新安排交付或取消订单承担任何相关费用。

The Buyer reserves the right to reschedule any delivery or cancel any effective PO at any time prior to shipment of the goods or prior to commencement of any services. The Buyer shall not be subject to any charges or other fees as a result of such reschedule or cancellation.

 

二  价格与支付

      Price and Payment

1. 产品或服务的价格和货币单位按照订单所列价格和货币单位确定。价格包含了卖方全部成本,包括但不限于包装费、税费、保险等。如果订单中没有约定价格,则采购价格以下列孰低者为准:(1) 市场最低价格;(2)买方之前的订单中类似产品的最低价格。

The price of the goods or services and currency are as indicated on the face of the PO. Price is inclusive of all of the Seller’s costs, including but not limited to packaging, taxes, insurance, etc. If the price is omitted from the PO, the price will be the lower of (1) the lowest prevailing market price; (2) the lowest price paid for similar goods or services under the Buyer’s prior POs.

2. 卖方保证就同种或类似产品,其给买方的价格相较于其他客户是最优惠且相较于其他出卖方该价格是具有竞争力的(以下简称“价格保证”)。若卖方违反价格保证,买方有权全部或部分解除相应订单,并且不需要为此承担任何责任;若买方主张继续执行订单,则不需要支付超过价格保证的费用。

The Seller guarantees that the price is the Seller’s best price to any customer for the same or similar goods or services and is competitive with any other seller’s price for similar goods or services (the “Price Guarantee”). The Buyer may terminate the PO in whole or in part without liability if the Seller breaches the Price Guarantee. If the Buyer continues the PO, the Buyer has no obligation to pay any amount in excess of the Price Guarantee.

3. 除非本合同另有约定,买方应在收到发票且验收完毕后的九十(90)日内支付订单价款。

Unless otherwise agreed hereof, the Buyer shall pay for the PO within ninety (90) days of the Buyer receiving the invoice and completing the inspection and acceptance.

4. 卖方应合理留存相关记录以证明其遵守本合同第二条的约定。

The Seller shall keep appropriate records to demonstrate compliance with Section 2 hereof.

三  交付

      Delivery

1. 产品或服务必须按照订单规定的时间通过订单规定的承运商交付至订单指定的地点,除非在产品或服务发出前买方书面变更上述规定。

Delivery of the goods or services shall be made pursuant to the schedule, via the carrier, and to the place specified on the face of the PO unless changed by written instructions from the Buyer prior to shipment.

2. 卖方应就任何预期的交付延迟通知买方并书面说明延迟原因。

The Seller shall promptly inform the Buyer of any anticipated delay in shipment and make written statement on the reason of such delay.

3. 买方有权退回早于或晚于指定交付日期三(3)个工作日的产品或服务并向卖方主张退货的运费。如果订#21333;要求分期交付,若卖方没有按照指定的交付时间分期交付,买方可以拒绝接受后续的产品或服务并终止尚未履行完毕的订单。

The Buyer reserves the right to return goods or services received more than three (3) business days in advance of the specified delivery date or after the specified delivery date and to collect shipping charges. If the PO requires delivery in installments and the Seller fails to deliver an installment on the designated delivery date, the Buyer may decline to accept subsequent installments and terminate the balance of the PO.

4. 如果订单中没有明确交付时间,订单应及时履行并采用空运、陆运或海运中最有效率的方式进行交付。如果订单中没有明确承运商,卖方应与买方沟通以确定承运商。

If no delivery schedule is specified in the PO, the PO shall be performed promptly and delivery will be made by the most expeditious form of transportation by air, land or sea. If no carrier is specified in the PO, the Seller shall consult with the Buyer to determine the carrier.

5. 若卖方未在订单明确的时间内提供产品或服务,买方可选择(1)拒绝接受产品或服务并取消订单,且不对此承担任何责任;或者(2)接受卖方一定比例的现货同时终止订单剩余部分的履行,且不对此承担任何责任。此外,在卖方迟延交付或无法交付的情况下,买方可以从其他途径采购该等产品或服务或其他同类替代品,卖方应承担买方从其他途径采购该等产品或服务或其他同类替代品所额外支付的费用,包括但不限于高出与卖方签订的订单价款的价差、买方的管理成本和经济成本等。

In the event that the Seller fails to provide the goods or services within the time specified, the Buyer may, at its option, (1) decline to accept the goods or services and cancel the PO without liability; or (2) demand its allocable fair share of the Seller’s available goods and cancel the balance of the PO without liability. In addition, under the circumstances of the Seller’s failure of or late delivery, the Buyer is entitled to obtain such goods or services or generic substitutes from other sources instead. All additional costs in obtaining such goods or services from alternative sources, including but not limited to positive price differential, the Buyer’s administrative and economic costs, shall be borne by the Seller.

6. 卖方应采用合适的包装以保证产品在运输和搬运途中的安全。每个交付货柜都需要标注不可拆封并且每个箱子和包装上都需要有包装清单列明产品内容。货柜、包装清单、发货单和提单上必须包含订单编号。卖方应清楚标明交付产品的产地国且应赔偿未标明或错误标明产品产地国致使买方承担的任何费用,包括但不限于关税、罚款、赔偿、律师费等。

The Seller shall package all items in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. The PO number must appear on all shipping containers, packing sheets, delivery tickets, and bills of lading. The Seller shall clearly identify the country of origin of all goods delivered and shall indemnify the Buyer with respect to any expenses, including but not limited to duties, penalties, damages, attorney’s fees, etc. incurred by the Buyer in connection with the Seller’s failure to identify or misidentification of the country of origin.

四  保证

     Warranties

1. 卖方向买方保证,其提供的产品或服务不存在权属受限的情形且是全新的。产品或服务完全符合说明书的内容且自买方收到产品或服务的两(2)年内(以下简称“保证期”)不存在材料、工艺和设计等瑕疵。若卖方违反前述保证,买方有权选择退货且已支付的货款用于下次采购时抵扣或者选择换货。卖方应对其产品未符合其环保说明或当地环保法律而面临的政府处罚负责。若在保证期内,买方收到的产品或服务或九十(90)天内能收到的在途产品或服务基于同种瑕疵的故障率超过3%或者基于各类瑕疵累积故障率超过5%,卖方应承担为纠正该等瑕疵支付的全部合理费用,包括但不限于调试费用。

The Seller warrants to the Buyer that the goods or services shall be free of liens and brand new, and shall be in compliance with their published specifications and be free from defects in materials, workmanship, design, etc. within a period of two (2) years upon the Buyer’s receipt of such goods (the “Warranty Period”). The goods or services not satisfying this warranty may be returned to the Seller for credit or replacement. The Seller will be responsible for governmental fines levied for failure to satisfy the Seller’s environmental specifications or local environmental laws. Should all goods or services received by the Buyer or goods or services to be received in any 90-day period experience a failure rate of more than 3% from the same defect or more than 5% from cumulative defects during the Warranty Period, the Seller will be responsible for all reasonable costs incurred in rectifying such failures, including but not limited to testing costs.

2. 卖方保证其向买方提供的产品或服务及其设计、备件、配件等没有侵犯任何第三方的专利、著作权、商标、商业秘密、其他知识产权和/或所有权。否则,卖方应承担因侵犯第三方知识产权而产生的任何责任。

The Seller warrants that the goods or services and design, components, accessories, etc. of goods or services do not infringe patents, copyrights, trademarks, trade secrets or other intellectual property rights of the third party. Otherwise, the Seller shall undertake any liability for infringing such intellectual property rights.

五  验收

      Inspections and Acceptance

1. 买方有权在收到产品或服务后的三十(30)日内且在付款前对产品或服务进行检查,确认产品或服务是否符合订单、说明书或者买方授权代表签署的其他工作说明书的要求(以下简称“验收要求”)。买方进行充分测试确认产品或服务符合验收要求后,产品或服务验收完毕。若产品或服务不能全部符合验收要求,买方有权拒收全部产品或服务或者退回不符合验收要求的产品或服务。因退回不符合验收要求的产品或服务产生的费用以及退回的产品或服务的灭失风险均由卖方承担。若买方在三十(30)日验收期届满后未拒收产品或服务,则视为验收完毕。

Within thirty (30) days upon receipt of the goods or services and before payment, the Buyer has the right to inspect them for conformity to the PO and applicable specifications and any statements of work signed by an authorized representative of the Seller (the “Acceptance Requirement”). The goods or services received shall not be deemed accepted until the Buyer has run adequate tests to determine whether the goods or services conform to the Acceptance Requirement. If the goods or services tendered do not wholly conform to the Acceptance Requirement., the Buyer shall have the right to reject such goods or services or to return nonconforming goods or services, and the related freight fees and risk of loss shall be borne by the Seller. Any goods or services not rejected by the Buyer after 30-day period of inspection shall be deemed accepted.

六  权属和风险的移转

     Title and Risk of Loss

1. 除非订单另有约定,产品采用DDP即税后交货方式交付至买方指定地点。除本合同另有约定外,在交付后,产品权属和灭失的风险移转至买方。如果采购的产品在灭失风险移转至买方之前毁损,买方可取消毁损产品对应的订单或者要求卖方及时交付同等质量和数量的替代产品。

Unless otherwise specified in the PO, the goods shall be delivered DDP to the Buyer’s location designated in the PO, at which time title and risk of loss on the goods shall be passed to the Buyer. If any of the goods are destroyed before the risk of loss is passed to the Buyer, the Buyer may cancel the PO as to the destroyed goods or require the prompt delivery of substitute goods of equal quantity and quality.

七  变更

     Changes

1. 买方可以通过向卖方发送修改后的订单变更以下事项:(1) 货运或包装方式;(2) 图样、设计或者产品说明;(3) 交付地点、时间;(4) 发货时间;(5) 数量。

The Buyer may, by PO amendments issued to the Seller, change (1) the method of shipment or package, (2) the drawings, designs, or specifications, (3) the place of delivery or the delivery date, (4) the shipment date; and (5) the quantity.

2. 卖方应在收到买方修改的订单后三(3)日内及时通知买方其必须对交付安排进行的调整。卖方应书面通知买方因订单修改而增加或减少的履行成本并提供相应的书面证明文件,买方可据此相应调整支付价款。

The Seller shall promptly inform the Buyer of any modifications to the delivery schedule necessitated by the changes within three (3) days upon receipt of the PO amendment. The Seller shall notify the Buyer in writing of any increase or decrease in the cost of performance caused by the PO amendment and provide supporting documentation. The Buyer may make an equitable adjustment on the price in the PO correspondingly.

3. 卖方应及时书面通知买方其可预见的缺货情况。

The Seller shall promptly inform the Buyer in writing of any foreseeable part shortages.

4. 卖方应提前六(6)个月书面通知买方其可能影响向买方提供产品或服务的各种情形,包括但不限于卖方破产、解散等等

The Seller shall inform the Buyer in writing six (6) months in advance of situations that may adversely influence the supply of goods or services to the Buyer, including but not limited to bankruptcy, dissolution, etc. of the Seller.

 买方提供或支付价款的物品

     Items furnished by the Buyer

1. 除非买方另行书面说明,买方提供或付费的设计、工具、模板、图样、数据、材料和设备均属于买方所有,并仅供用于生产买方所需产品或服务,且卖方应保证其重置成本,在订单完成后返还给买方且保证其完好无损。卖方应确保用于生产产品或提供服务的工具的精准性,无论该等工具是由买方提供的还是卖方装配的。

Unless otherwise specified by the Buyer in writing, all designs, tools, patterns, drawings, data, materials, and equipment supplied or paid for by the Buyer to the Seller shall remain the property of the Buyer, shall be used only for making the goods or providing services for the Buyer, shall be insured by the Seller at replacement value, and shall be returned to the Buyer in good condition upon completion of the PO. The Seller assumes all responsibility for the accuracy of tooling used in the production of the goods or in the providing of the services, no matter whether such tooling is furnished by the Buyer or fabricated by the Seller.

保密

    Confidentiality

1. 保密信息(以下简称“保密信息”)是指(1)买方以下列方式向卖方提供的保密的或专有的数据、材料、信息:(a)以书面、图纸、机器可识别方式、电子、样品或其他有形或可视的形式提供的信息且在披露时明确标注“保密”或者“专有”;(b)以口头形式提供的信息且基于信息提供的背景可推知买方认为该等信息是保密的或专有的;(2)买方向卖方披露的与订单有关的信息,包括但不限于产品说明、蓝本、设计、样品、测试程序和结果、质量及生产程序和要求、客户信息、软件和相关文件、产品或技术蓝图、成本或价格信息、需求或产量信息、市场份额、市场或经济预测和其他类似信息、订单的存在以及订单的条款。

Confidential Information (the “Confidential Information“) means (1) confidential or proprietary data, materials or information disclosed by the Buyer to the Seller: (a) in written, graphic, machine recognizable, electronic, sample, or any other tangible or visually perceptible form, which is clearly designated as “confidential” or “proprietary” at the time of disclosure; and (b) in oral form, if it would be reasonable given the circumstances surrounding disclosure to conclude that the Buyer considered such orally disclosed information confidential or proprietary; and (2) all information disclosed by the Buyer relating to the PO, including but not limited to product specifications, prototypes, designs, samples, testing processes and results, quality and manufacturing procedures and requirements, customer information, software and related documentation, product or technology roadmaps, cost or price information, demand or volume information, market share, market or financial projections and other similar information, the existence of this PO and its terms and conditions.

2. 卖方在未取得买方事先书面同意的情况下,不得宣传、公开、披露订单的条款、细节、说明;基于该订单产生或将产生的收益;或者已向或已签约将向买方提供服务或产品。

The Seller shall not, without the Buyer’s prior written permission, advertise, publish, or disclose the terms, details, or specifications of the PO; the amount of revenue generated or to be generated from the PO; or the fact that is has furnished or has contracted to furnish the Buyer with the goods or services.

3. 保密信息始终归买方所有且买方可任意使用或披露。

Confidential Information is and at all times will remain the property of the Buyer and the Buyer is able to use or disclose the Confidential Information at its discretion.

4. 卖方应当(1)保守保密信息且不得向任何第三方披露,除非买方书面授权;(2)只能向基于卖方履行订单的需要必须知晓保密信息的员工、承包方或者代理披露保密信息且该等员工、承包方或者代理应履行不低于本合同要求的保密义务;(3)按照保护其自身保密信息的同等注意程度保护保密信息且不低于合理的注意程度;(4)仅将保密信息用于履行订单的目的且只能在履行订单所必要的范围内使用;(5)及时告知买方未经授权使用、接触或披露买方的保密信息的情形且采取一切必要的措施重新掌控保密信息、保护保密信息并阻止未授权使用情形及违反本合同的情形的持续发生。

The Seller shall: (1) maintain the confidentiality of Confidential Information and not disclose it to any third party, except as authorized by the Buyer in writing; (2) restrict disclosure of Confidential Information to its employees, contractors and agents who have a “need to know” in order for Seller to perform its obligations under the PO, and such employees, contractors and agents are bound to maintain the confidentiality of the Confidential Information by terms of nondisclosure no less restrictive than contained herein; (3) handle Confidential Information with the same degree of care as the Seller uses for its own confidential information, but in no event less than reasonable care; (4) use Confidential Information only for the purpose of performing and, to the extent necessary, to fulfill its obligations under the PO; and (5) promptly notify the Buyer upon discovery of any unauthorized use, access or disclosure of the Confidential Information, take all necessary steps to regain possession and protection of the Confidential Information and prevent further unauthorized actions or breach of the Agreement.

5. 买方在向买方披露保密信息时未授权卖方任何知识产权,包括但不限于任何默示的许可。在没有事先取得买方许可或同意的情况下,卖方不得向其他国家输出或再输出保密信息。

No license of any intellectual property rights of the Buyer is granted or intended when the Buyer discloses the Confidential Information to the Seller, including but not limited to any license implied. The Seller shall not directly or indirectly export or re-export any Confidential Information to any country, without the Buyer’s prior permit or approval.

6. 卖方不得就保密信息进行逆向工程、反编译或者分解。

The Seller shall not reverse engineer, de-compile, or disassemble the Confidential Information.

7. 如果卖方需要获取买方计算机资源、系统或数据,卖方或卖方授权方应先与买方签订信息保护和安全/保密协议。

If the Seller is to access the Buyer’s computer resources, systems or data, the Seller and any person who may require access on behalf of the Seller shall, first execute and deliver to the Buyer, an information protection and security/confidentiality agreement.

8. 在订单完成、取消、终止后或者收到买方书面要求后,卖方应及时停止使用并归还保密信息及包含保密信息的载体给买方,或根据买方的要求立即销毁保密信息其载体。

Upon fulfillment, cancellation, or termination of the PO or receipt of the Buyer’s written request, the Seller shall immediately stop using and return the Confidential Information and all items that contain the Confidential Information to the Buyer, or immediately destroy the Confidential Information and all items containing Confidential Information in accordance with the requirement of the Buyer.

9. 卖方的保密义务在按照本合同约定返还、销毁保密信息后的五(5)年内继续有效。保密条款在本合同因任何原因终止后继续有效。

The Seller’s obligation to keep confidentiality of the Confidential Information will survive for five (5) years following return or destruction of the Confidential Information in accordance with the Agreement. The section of Confidentiality hereof shall survive the termination of the Agreement.

十一 赔偿

        Indemnity

1. 若存在下列任一情形,卖方应按照买方要求为买方及其管理人员、董事、客户、代理和员工应对因该情形引发的诉讼、仲裁、行政处罚程序,且卖方应赔偿买方因此遭受的直接和间接损失:

  1. 订单产品或服务导致人身伤亡、财产毁损、环境污染;

  2. 卖方不满足买方客户的要求或指引;

  3. 卖方或其关联方存在故意、过失行为或者不作为;

  4. 卖方违反本合同保密条款;

  5. 卖方违反法律;

  6. 卖方提供的产品或服务侵犯专利权、著作权、商标权、商业秘密或其他知识产权;

  7. 其他导致买方及其管理人员、董事、客户、代理和员工面临诉讼、仲裁或行政处罚程序,遭受损失的情形。

卖方在未事先取得买方书面同意的情况下,不得对该等诉讼、仲裁、行政处罚程序进行和解。

The Seller shall defend the Buyer, its officers, directors, customers, agents and employees against the litigation, arbitration or administrative penalty procedure based on any of the following circumstances and shall indemnify direct and indirect losses suffered by the Buyer correspondingly:

  1. the death or bodily injury to any person, destruction or damage to property, or contamination of the environment caused by the goods or services under the PO;
  2. the Seller failing to satisfy the requirements and guidelines of an independent contractor;
  3. the willful or negligent misconduct or omissions of Seller or any of Seller’s affiliates;
  4. the Seller failing to satisfy its obligations under the section of Confidentiality hereof;
  5. the Seller failing to comply with requirements of applicable law; and
  6. the goods or services supplied by the Seller infringe patent, copyrights, trademarks, trade secrets or other intellectual property rights of the third party;
  7. other circumstances resulting in the Buyer, its officers, directors, customers, agents and employees being faced with the litigation, arbitration or administrative penalty procedure and suffering losses.

Seller shall not settle any such litigation, arbitration or administrative penalty procedure without the Buyer’s prior written permission.

2. 若因卖方原因导致买方及其分销商、分包商、客户被禁止使用订单产品或服务的,卖方应自费履行以下义务:(1)以不被禁止的同等产品或服务替换被禁止使用的产品或服务;或(2)修改被禁止使用的订单产品或服务使其不属于被禁止的范围但应保持其原有的功能;或(3)取得相关方的同意,使买方及其分销商、承包商、客户可以继续使用订单产品或服务;或者(4)若以上(1)-(3)均无法实现,卖方应双倍返还买方已支付的被禁止使用的订单产品或服务对应的价款。

Should the use of any goods or services by the Buyer, its distributors, subcontractors, or customers be enjoined, the Seller shall, at its sole cost and expense, either (1) substitute fully equivalent non-infringing goods or services; (2) modify the goods or services so that they no longer be enjoined but remain fully equivalent in functionality; (3) obtain for the Buyer, its distributors, subcontractors, or customers the right to continue using the goods or services; or (4) if none of (1)-(3) is possible, doubly refund all amounts paid for the enjoined goods or services.

3. 卖方同意支付或赔偿买方为执行该赔偿条款支出的费用,包括但不限于律师费。

The Seller agrees to pay or reimburse all costs that may be incurred by the Buyer in enforcing this indemnity, including but not limited to attorneys’ fees.

十二 终止

Termination

1. 买方可根据其需要随时书面通知卖方终止订单的全部或部分,且不需为此承担任何责任。

The Buyer may terminate all or any part of the PO at any time for its convenience, without liability to the Seller, upon written notice to the Seller.

2. 除了本合同、法律规定的救济方式,买方还可在卖方出现下列情况时书面通知卖方立即终止订单且不需为此承担任何责任:(1)违反订单和本合同的约定;(2)迟延交付产品或服务;(3)提供的产品或服务不符合买方的要求;(4)提供的产品或服务有瑕疵或与订单不符;(5)未按订单或本合同约定履行义务或者没有按要求为将来履行义务提供合理保证;(6)提供的产品或服务侵犯或滥用知识产权。

In addition to all remedies provided elsewhere in the Agreement and laws, the Buyer also may terminate the PO immediately, without liability to the Seller upon written notice, if Seller: (1) fails to comply with any provision of the PO and the Agreement; (2) delivers the goods or services late; (3) provides the goods or services that fail to meet the Buyer’s requirements; (4) delivers the goods or services which are defective or which do not conform to the PO; (5) fails to perform as agreed in the PO or the Agreement, or to provide reasonable assurances of future performance upon request; (6) provides the goods or services that infringe or misappropriate any intellectual property rights.

3. 在订单完成、取消、终止后,根据买方的要求,卖方应将与订单相关的全部记录交给买方并保留该等记录的复印件一(1)份。复印件的保存仍适用本合同保密条款。

Upon fulfillment, cancellation or termination of the PO, at the Buyer’s request, the Seller shall transfer all records pertaining to the PO to the Buyer, but retain a copy of such records. Retaining such copy is subject to obligations under the section of confidentiality hereof.

十三 其他

Miscellaneous

1. 任何一方对因不可抗力导致不能履行订单或本合同不承担任何责任。不可抗力包括但不限于自然灾害、战争、政府突发行为等。遭受不可抗力的一方应及时通知另一方并采取合理努力减小损失并恢复履行。

Neither Party will be liable for any failure to perform the PO and the Agreement caused by force majeure including but not limited to acts of God, acts of war, government accidental action, etc. The Party which suffered force majeure shall promptly notifies the other Party and uses reasonable efforts to reduce the losses and to correct its failure to perform.

2. 如果本合同任何条款被有管辖权的法院因任何原因认定为全部或部分无效,不影响本合同或其他条款的效力。无效的部分视为被分割和删除,其余部分继续有效。

If any provision of the Agreement is determined by any court of a competent jurisdiction to be wholly or partly unenforceable for any reason, that unenforceability shall not affect the rest of the Agreement. The unenforceable part shall be deemed severed and deleted and the remainder continuing in full force and effect.

3. 卖方应确保取得为履行订单和本合同义务所需的法律要求的许可。卖方还应负责查明和确保员工及/或代理取得为履行本合同及订单项下的义务所需的许可。

The Seller shall be responsible for ascertaining and obtaining the necessary approvals required by laws for itself to perform its obligations under the PO and the Agreement. The Seller shall be responsible for ascertaining and obtaining the necessary required for its employees and/or agents to perform the Seller’s obligations under the PO and the Agreement.

4. 本合同适用中华人民共和国(不包括香港特别行政区、澳门特别行政区、台湾地区)法律,但中华人民共和国法律下的冲突法原则和规则除外。

The Agreement is governed by and is to be construed in accordance with laws of the People’s Republic of China (excluding Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan), excluding applications of principles and rules of conflict of laws under laws of the People’s Republic of China.

5. 凡因本合同引起的或与本合同有关的任何争议,均应提交中国国际经济贸易仲裁委员会华南分会,按照仲裁申请时中国国际经济贸易仲裁委员会现行有效的仲裁规则在深圳进行仲裁。仲裁裁决是终局的,对双方均有约束力。

Any dispute arising from or in connection with the Agreement shall be submitted to China International Economic and Trade Arbitration Commission (the “CIETAC”) South China Sub-Commission for arbitration which shall be conducted in in Shenzhen and in accordance with the CIETAC’s arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon Parties.

6. 发送给任何一方的通知应当发送至其在本合同列明的地址或者通过挂号信、传真或电子邮件等方式告知的更改地址。该等通知在邮寄满七(7)日后视为送达,以传真或电子邮件方式发出的通知在发送成功满二十四(24)小时后视为送达。

Any notice to be served on the Party shall be sent to the address as stated herein or to such change of address as notified by the other party by registered post, facsimile transmission, electronic mail, etc. Such notice shall be deemed to have been received by the addressee after seven (7) days from posting or after twenty-four (24) hours from successfully sending out fax or electronic mail.

7. 除双方明确书面同意补充、变更或终止本合同,不得对本合同作任何补充、变更或终止本合同。

The Agreement shall not be supplemented, amended or terminated in any respect unless such supplement, amendment or termination is expressly agreed in writing by Parties.

8. 本合同由中文和英文书写。若英文和中文不一致,以中文为准。

The Agreement is written in Chinese and in English. Where there is any inconsistence between the Chinese version and the English version, the Chinese version prevails.

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