英文原文：
PURCHASE AGREEMENT
(GOODS & SERVICES)
THIS PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of ________, 20__ by and between XX(Shanghai) Co., Ltd,, a limited liability company duly registered and existing under the Chinese law, having its registered address at ________________________(“NPT”), and ______________________ [insert full company name of Supplier], a limited liability company duly registered and existing under the Chinese law, having its registered address at ________________________ (“Supplier”).
In consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, NPT and Supplier agree to the following terms and conditions:
1. DEFINITIONS
“Affiliate” means an organization which is directly or indirectly controlled by, in Control of, or under common Control with a Party to this Agreement.
“Agreement” means this Agreement, including any Purchase Order, Specifications, and any other documents (or parts thereof) specified in a Purchase Order or otherwise expressly incorporating this Agreement.
“Confidential Information” means any and all non-public or proprietary information provided by NPT to Supplier, that relates to the business of NPT, whether of technical nature or commercial nature or otherwise.
“Control” means the ownership of more than 50% of the voting stock of any organization or the legal power to direct or cause the direction of the general management of either Supplier or NPT as appropriate.
“Day(s)” means a calendar day, which includes both working days and non-working days.
"Goods" means all (or any) of the goods covered by the Agreement including without limitation raw materials, processed materials or fabricated products, which is supplied by Supplier to NPT.
"NPT" means XX(Shanghai) Co., Ltd. including its Affiliates.
“Intellectual Property Rights” means patents, registered designs, trademarks and service marks (whether registered or not), domain names, copyright, database right, and all similar property rights including those subsisting (in any part of the world) in inventions, designs, drawings, computer programs, Confidential Information, business names, goodwill, and in applications for protection of the above rights.
“Party” means NPT, or Supplier as the case may be, and jointly NPT and the Supplier when used in the plural.
“Purchase Order” means NPT’s purchase order issued hereunder by an authorized purchasing staff of NPT and confirmed in writing by Supplier setting out NPT’s requirements for Goods or Services. A Purchase Order is an integral part of this Agreement.
"Services" means the services covered by the Agreement and provided by Supplier to NPT.
"Specification” means the quality standards, specifications or scope of work or otherwise separately documented by NPT in writing which sets out the performance required of the Goods and Services. The Specification for each Purchase Order is specified in or attached to such Purchase Order.
"Supplier" means the person, firm (or any individual partner thereof), or company who supplies Goods or provides Services to NPT in accordance with the Agreement and to whom the Purchase Order is addressed.
2. PRICE, INVOICING AND TERMS OF PAYMENT
The price and terms of payment are agreed by NPT and Supplier in each Purchase Order. The price shall be a firm fixed price during the term of such Purchase Order and inclusive of all packaging, delivery, insurance and other related charges (unless otherwise agreed). Any increase in the price for any reason shall be subject to the express prior written consent of NPT.
The correct Purchase Order number must be quoted on all invoices, and NPT will accept no liability whatsoever for invoices, delivery notes or other communications which do not bear such Purchase Order numbers.
To ensure payment in accordance with the above procedure, all invoices must be received at the invoice address shown on the Purchase Order.
Supplier shall issue a formal tax receipt (Fa Piao) to NPT within five (5) Days upon receiving payment from NPT.
3. PASSING OF PROPERTY AND RISK IN GOODS
The title and risk in Goods shall remain with Supplier until they are delivered at the place specified in a Purchase Order and a nominated employee of NPT signs a delivery note at which point they shall pass to NPT.
4. PRIORITY ORDER OF DOCUMENTS
This Agreement and other matters appearing on the Purchase Order shall apply to all purchases of Goods or Services by NPT from Supplier. Acceptance of the Purchase Order constitutes acceptance of this Agreement.
NPT will not be liable in respect of any Purchase Order(s) or instructions other than those issued or confirmed on its official, duly issued Purchase Order documents.
With regard to the power of the contracting documents entered into by the Parties in purchase of any Goods or Services, the Purchase Order shall have prevailing power over this Agreement and any other contract documents (including proposals, scope of work provided by Supplier); this Agreement shall have prevailing power over the other contract documents except the Purchase Order; where the issues have not been addressed by the Purchase Order, this Agreement shall apply.
5. QUALITY AND FITNESS FOR PURPOSE OF GOODS
The Goods and Services must comply in all respects with the Specifications or any modifications that may be agreed by the Parties in writing. The Goods and Services supplied must also comply in all respects with the Purchase Order and the implied conditions, warranties and terms contained in any applicable Chinese laws and regulations.
The Goods must be fit for the purpose for which they are intended, in full compliance with the Specification, and free from defects in design, material and workmanship.
6. INSPECTION
NPT, and any third party it appoints on its behalf, shall have the right upon prior notice to Supplier to inspect and carry out any tests or batch sampling it wishes on all Goods at Supplier's premises and the premises of any sub-contractors and on any premises where the Goods are manufactured or Services are provided. Where pre-shipped inspection is specified, Supplier must, at its expense facilitate the same and provide any or all relevant certificates of analysis to NPT.
Any inspections, tests, approvals or acceptance given by or on behalf of NPT in relation to the Goods or Services shall not relieve Supplier from its obligations or liabilities under the Purchase Order.
Supplier shall, and shall ensure that its sub-contractors shall, grant a right of access to NPT and any third party it appoints in order to inspect and test the Goods for conformance to specifications and for plant compliance with relevant environmental, occupational health and safety legislation and other requirements such as NPT standards.
7. REJECTION, REPAIR AND REPLACEMENT
In the case of Goods not conforming to the Purchase Order, NPT may, at its discretion:
1. require Supplier as soon as reasonably practicable to either repair or replace the Goods at the site of delivery or Supplier's works, whichever NPT shall so determine, or refund to NPT the purchase costs of all Goods which do not correspond with the Purchase Order. Repairs, replacements, and any refunds shall themselves be subject to the obligations under the Purchase Order and this Agreement;
2. in the case of defective delivery, require Supplier to promptly reimburse NPT in respect of any cost including but not limited to freight, clearance, duty and storage charges incurred by NPT; and
3. purchase Goods elsewhere which nearly as practicable accord with the Purchase Order and any extra expense thus incurred shall be paid by Supplier to NPT. Before exercising such right to purchase elsewhere NPT shall give Supplier a reasonable opportunity to replace rejected Goods with Goods which conform to the Purchase Order or refund to NPT the purchase costs of all Goods which do not correspond with the Purchase Order.
In the event of a rejection in accordance with Section 7 above NPT shall notify Supplier in writing, and the payment obligation in relation to any such delivery shall be suspended forthwith.
The parties shall use their best endeavors to resolve any dispute arising pursuant to Sections 5 and 7. If no agreement can be reached within 30 days, the parties shall agree on an independent inspection institution (not an arbitrator, hereinafter called “Institution”) whose decision shall be final and binding as to the dispute and as to which party should pay his fees, the default result being that the fees shall be borne by the party against whom the Institution’s decision is given.
If the Institution finds that any delivery of the Goods has not complied with the Agreement, NPT shall have the rights stated in Section 7.
If the Institution finds that the Goods comply with the Agreement, NPT shall pay for such Goods in accordance with the payment provisions contained in the Agreement.
8. DELIVERY OF GOODS AND PROVISION OF SERVICES
Unless otherwise instructed in writing by NPT’s nominated representative, all Goods must be delivered and all Services must be performed at the time and place specified in a Purchase Order. Supplier shall supply NPT with details of the anticipated lead times between placing an order and delivery of any Goods and Supplier shall keep NPT informed of progress. Quantities delivered in excess of those stated in the Purchase Order may not be accepted.
Time shall be of the essence in relation to the performance of any and all of Supplier’s obligations pursuant to a Purchase Order.
9. STANDARD OF SERVICES
9.1 Supplier warrants and represents to NPT that any Services performed by Supplier or duly appointed sub-contractor:
9.1.1 Shall be performed in a good and workmanlike fashion and with all due speed, care, skill and diligence.
9.1.2 Shall be carried out in accordance with a Purchase Order, with current industry standard codes of practice, and the highest standards prevailing in Supplier’s industry. Supplier shall ensure that all of its personnel and sub-contractors are suitably qualified to perform the Services and that all necessary licenses, work permits or other authorizations have been obtained.
9.2 NPT shall have the right exercisable during the performance of the Services to suspend any payment obligation in respect of the Services if the performance does not conform in quality with any stipulations in a Purchase Order or if the performance is delayed.
9.3 If the Services do not conform to a Purchase Order, NPT shall have the right to purchase Services from elsewhere which nearly as practicable conform to the Purchase Order; and any extra expense incurred shall be paid by Supplier to NPT. Before exercising such right to purchase the Services from an alternative supplier NPT shall give Supplier an opportunity to replace the Services in respect of which payment was cancelled with Services which conform with the Purchase Order.
10. PACKAGING
Supplier will package and label the Goods as specified by NPT in a Purchase Order and the cost of packaging is included in the purchase price shown on the Purchase Order. Bulk packaging shall be in a manner suitable for transit and storage at no additional cost to NPT. NPT will not pay for or return packaging materials unless previously agreed between the Parties and confirmed in writing. Packaging must comply with all relevant legislative requirements, including those pertaining to environmental and occupational health and safety standards. Supplier will investigate potential environmental improvements to packaging and will, where practicable, use minimal packaging, recyclable packaging and recycled materials as appropriate.
11. TRADEMARK AUTHORIZATION
Unauthorized use of any trademark owned or licensed by NPT including the “PIG” trademark is strictly forbidden. Any print plates or other devices used to create a NPT trademark shall be considered proprietary property for NPT and will be returned to NPT on request. Supplier further undertakes not to register in China or in any country around the world any trademarks owned by NPT (including their Chinese translations) or any similar marks.
Supplier shall report trademark usage to NPT and NPT has the right to verify on a monthly basis (1) the number of packages and labels printed with a trademark (2) the quantity of units used and (3) the quantity of units which remain in stock.
12. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the People’s Republic of China. All disputes arising out of or in connection with this Agreement shall be settled through friendly consultation between both Parties. In case no settlement can be reached, either Party may submit the dispute to the China International Economic and Trade Arbitration Commission (“CIETAC”) in Beijing for arbitration in accordance with the CIETAC rules of arbitration then in effect. The arbitration award shall be final and binding on the Parties.
13. LANGUAGE
This Agreement is made in English and Chinese and both versions shall have the same effect. In case there is any discrepancy between the two versions, the Chinese version will prevail.
14. NON-DISCLOSURE, NON-USE, AND NON-CIRCUMVENTION
Supplier shall, and shall procure that its employees and sub-contractors shall, keep confidential all Confidential Information, whether of a commercial or technical nature, disclosed to Supplier by NPT for the purpose of carrying out the Agreement, and shall not use or disclose such information to any third party without NPT's prior written consent. Supplier shall not without NPT's prior written consent disclose, copy, publicize or publish, the existence of the Agreement or any information related to the Agreement including the name of NPT, the Goods, Services, and the place of delivery or performance.
Supplier shall not use NPT’s Confidential Information for any purpose except to engage in discussions regarding the business opportunity and/or to effectuate transactions between the Parties and carrying out the Agreement (“Permitted Use”). Supplier shall not use NPT’s Confidential Information to develop its own business or compete with NPT, nor shall Supplier reverse engineer, disassemble, or decompile any prototypes or other tangible objects which embody NPT’s Confidential Information.
Supplier agrees and recognizes that NPT has invested resources in the acquisition, development, and retention of customers and suppliers and such investment represents significant value to NPT. Supplier shall not directly or indirectly interfere with, circumvent, or attempt to circumvent, avoid, bypass, or obviate NPT’s interest or relationship between NPT and its customers or supply partners, to change, increase or conduct business for Supplier’s benefit during the term of this Agreement and for a period of five (5) years after expiry or termination of this Agreement.
Supplier further undertakes not to enter into business transactions with customers, suppliers, or investors, the names of which have been provided by NPT, unless written permission has been obtained from NPT to do so, during the term of this Agreement and for a period of five (5) years after expiry or termination of this Agreement.
In the event of circumvention directly or indirectly, the circumvented Party shall be entitled to a legal monetary penalty equal to the maximum amount it should realize from such a transaction plus any and all expenses, including but not limited to all legal costs and expenses incurred to recover the lost revenue.
15. INTELLECTUAL PROPERTY RIGHTS
Supplier agrees to indemnify NPT and its employees, Affiliates, sub-contractors and agents in full and on demand and keep them so indemnified against all claims, demands, actions, proceedings and all direct damages, losses, costs and expenses (including without limitation legal and other professional advisers fees), made against or incurred or suffered by any of them and whether wholly or in part resulting directly or indirectly from any claim by a third party that the Goods or the provision of the Services by the Supplier or the use by or on behalf of NPT of the Goods or of any assets used by the Supplier in connection with the performance of the Services infringes the Intellectual Property Rights of that third party.
Supplier shall, at its expense, defend any actions arising from infringements or alleged infringements of its Intellectual Property Rights in connection with the Goods or Services and Supplier undertakes to indemnify NPT against any costs which NPT incurs in connection with such actions, provided that NPT gives Supplier all appropriate information and assistance and the sole authority to defend or settle any legal proceedings at Supplier’s expense.
NPT retains Intellectual Property Rights in, and ownership of all materials, plans, drawings, Specifications, patterns and/or designs provided by NPT to Supplier, and they shall all be returned at any time in good condition to NPT at NPT’s request.
Where Goods are made to NPT’s Specification, model, or plans, the Intellectual Property Rights in the Goods in so far as they relate to the Specification, model, or plans, and any improvements or developments thereof shall be the absolute property of the NPT, and Supplier will assign all such Intellectual Property Rights to the NPT when such assignation is necessary.
Intellectual Property Rights arising during or out of the provision of Services shall be and remain the property of NPT.
In the event that the Intellectual Property Rights relating to the Goods and Services provided by Supplier are held by the courts to infringe a third party’s rights, and their use is enjoined by that third party, Supplier shall have the option and at its expense to procure for NPT the right to continue using the Goods or Services, or replace the Goods with non-infringing Goods or Services, or modify the Goods or Services so that they become non-infringing without detracting from their overall performance and functionality.
16. TERMINATION
Either Party may, by giving thirty (30) days’ written notice to the other Party, terminate this Agreement or any Purchase Order hereunder if the other Party breaches any provision thereof or defaults in the performance of its obligations thereunder and does not remedy the default within thirty (30) days after a written notice is given from the non-defaulting Party to remedy the default. In the event that only a specific Purchase Order is terminated, this Agreement and all the other Purchase Orders hereunder shall not be affected and shall continue to be carried out by the Parties.
If either Party shall become insolvent, bankrupt, dissolved, or shall compound or make any arrangement with its creditors it shall promptly so notify the other Party in writing giving particulars of the circumstances whereupon the other party may terminate the Agreement immediately by written notice.
If at any time during the term of the Agreement there shall be any change in the legal or beneficial ownership or Control of either party:
1. The changed party shall immediately so notify the other party in writing; and
2. the other party may, upon receiving notice or otherwise becoming aware of a change in the legal or beneficial ownership or Control of the changed party, terminate the Agreement immediately by notice in writing to that party if it considers in its sole discretion that such change of ownership or Control are prejudicial to its interests.
17. CONSEQUENCES OF TERMINATION
On termination of the Agreement Supplier shall, not later than seven days after NPT’s request but at NPT’s cost:
1. deliver to NPT (or as NPT shall direct ) all quantities of the Goods in its possession which comply with the Purchase Order or this Agreement;
2. return to NPT all documents provided to Supplier by NPT; and
3. ensure that all documents containing Intellectual Property Rights and/or any Confidential Information relating to the Goods, the manufacture of the Goods and the provision of Services, provided by NPT to Supplier, will be returned to NPT or destroyed by Supplier at NPT’s option.
With effect from termination of the Agreement Supplier shall not make any use for any purpose whatsoever of any Intellectual Property Rights which is the property of NPT.
Termination or expiry shall not relieve either Party from any liability or action accrued prior to such termination or expiry.
Termination of the Agreement or any Purchase Order hereunder shall be without prejudice to the continuation in force of Sections 2, 4, 13, 17, and 18. Supplier agrees to provide NPT with all reasonable support with respect to any investigation required by NPT or any regulator with respect to the Goods or Services carried out prior or after such termination. NPT will reimburse Supplier’s reasonable costs in providing such assistance unless such termination has occurred for a reason contained in Section 12.
The Agreement may be cancelled at any time by NPT for any reason whatsoever, by giving Supplier notice in writing. A fair and reasonable price will be paid for all Services and Work in progress that have been delivered to NPT. NPT's liability is limited to Services and Work in progress, and no further loss or liability will accrue on their account.
18. LIABILITY AND INSURANCE
18.1 Supplier shall indemnify NPT against any direct liabilities, damages, claims, costs, losses and expenses incurred or paid by NPT howsoever arising from any defect in the Goods or Services or any breach by Supplier of its obligations hereunder or of any statutory duty or from any act or omission of Supplier’s employees, agents or sub-contractors.
18.2 Supplier shall insure with a reputable insurance company its liabilities under the Agreement, and if so required at any time produce the policy of insurance and the receipt for the current premium to NPT for its inspection. Supplier agrees that any monies received by Supplier from the insurance company in full or part settlement of a claim arising out of the Agreement and paid by or due to NPT shall be paid immediately to NPT without offset or counter claim.
18.3 Any limitation, monetary or otherwise in such policy shall not be construed as a limitation on Supplier's liability and Supplier shall, notwithstanding such limitation, remain liable in full for the matters and to the extent not covered by the policy.
19. FORCE MAJEURE
19.1 Neither Party shall be liable for, nor be deemed to be in default, on account of any delay in completion or the performance of any other act under the Agreement due to circumstances which could not have been contemplated by the Parties and which are beyond the Party’s reasonable control (“Force Majeure”), provided that the Party claiming hereunder shall notify the other with all possible speed specifying the cause and probable duration of the delay or non-performance and shall minimize the effects of such delay or non-performance.
19.2 If the performance by either Party of any of its obligations under the Agreement is prevented or delayed by Force Majeure for a period in excess of 60 days cumulatively or consecutively, then the other Party shall in its discretion have the right to immediately terminate the Agreement upon written notice.
20. ASSIGNMENT
20.1 Supplier’s rights and obligations under the Agreement may not be assigned in whole or in part without the prior written consent of NPT (acting in its sole discretion) and any such consent shall not be deemed to relieve Supplier of any of its obligations and liability to NPT pursuant to the Agreement.
20.2 NPT shall be entitled at any time by notice in writing to Supplier to assign the whole or any part of its rights and obligations under the Agreement to any Affiliate or to any successor in title to the whole or part of that part of NPT’s business which relates to the Goods or Services.
21. SUB-CONTRACTORS
Supplier shall not, without the prior written consent of NPT, appoint any sub-contractor or any person or persons to carry out its obligations under the Agreement. In the event that Supplier appoints a sub-contractor or other person to perform its obligations, it shall remain liable to NPT for the performance of all its obligations and shall ensure that any such sub-contractor or other person reads and understands the implications of the Agreement.
22. WAIVER
No waiver or forbearance by either Party in enforcing any of its rights under the Agreement shall prejudice or affect the ability of that Party to enforce such rights or any of its other rights at any time in the future. No waiver shall be effective to a Party unless made in writing and signed by that Party.
23. SEVERABILITY
Any provision of this Agreement which is declared void or unenforceable by any competent authority or court shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect the other provisions of this Agreement, which shall continue unaffected.
24. AMENDMENT
This Agreement may only be amended in writing by authorized representatives of both Parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by and through their duly authorized representatives below:
__________________________ XX(Shanghai) Co., Ltd.
By: ___________________ By: ___________________
Title: _________________ Title: __________________
Code of Conduct
ETHICAL STANDARDS AND HUMAN RIGHTS
Unless otherwise required or prohibited by law, the Supplier warrants, to the best of its knowledge, that in relation to the supply of Goods or Services under the terms of this
Agreement:
(a) it does not employ engage or otherwise use any child labor below the age of completion of compulsory schooling and in any case not below the age of sixteen (16) or below the legal minimum employment age (where this is the higher);
(b) it does not use forced labor in any form (prison, indentured, bonded or otherwise) and its employees are not required to lodge papers or deposits on starting work;
(c) it provides a safe and healthy workplace, presenting no immediate hazards to its employees. Any housing provided by the Supplier to its employees is safe for habitation.
The Supplier provides access to clean water, food, and emergency healthcare to its employees in the event of accidents or incidents at the Supplier's workplace;
(d) it does not discriminate against any employees on any ground (including race, religion, disability or gender).
(e) it does not engage in or support the use of corporal punishment, mental, physical, sexual or verbal abuse and does not use cruel or abusive disciplinary practices in the workplace;
(f) it pays each employee at least the minimum wage, or a fair representation of the prevailing industry wage, (whichever is the higher) and provides each employee with all legally mandated benefits;
(g) it complies with the laws on working hours and employment rights in the countries in which it operates;
(h) it is respectful of its employees right to join and form independent trade unions and freedom of association.
The Supplier agrees that it is responsible for controlling its own supply chain and that it shall encourage compliance with ethical standards and human rights by any subsequent supplier of goods and services that are used by Supplier when performing its obligations under this Agreement.
The Supplier shall ensure that it has ethical and human rights policies and an appropriate complaints procedure to deal with any breaches of such policies.
NPT reserves the right upon reasonable notice (unless inspection is for cause, in which case no notice shall be necessary) to enter upon the Supplier's premises to monitor compliance by the Supplier of the warranties set out in Section