Terms And Conditions - Asia

STANDARD TERMS AND CONDITIONS OF PURCHASE

THESE STANDARD TERMS AND CONDITIONS GOVERNS EVERY PURCHASE ORDER ISSUED BY FRESH iD PRODUCTS LIMITED (“THE COMPANY”) AND ARE IN ADDITION TO AND SUPPLEMENT THE EXPRESS TERMS AND CONDITIONS CONTAINED IN THE PURCHASE ORDER EXCEPT WHEN THERE ARE DSICREPANCIES BETWEEN THEM, IN WHICH EVENT THE PURCHASE ORDER SHALL PREVAIL. THE COMPANY RESERVES THE RIGHT TO CHANGE ANY OF THE TERMS AND CONDITIONS HEREIN WITHOUT PRIOR NOTICE. IT IS THE RESPONSIBILITY OF THE MANUFACTURER TO BE CONVERSANT WITH THE TERMS AND CONDITIONS HEREIN WHICH ARE DEEMED ACCEPTED EACH TIME UPON THE MANUFACTURER’S ACCEPTANCE OF THE PURCHASE ORDER FROM THE COMPANY.

ISSUANCE OF PURCHASE ORDERS

  1. The Company shall issue one or more purchase orders (“Order”) to Manufacturer (for the purpose herein, “Manufacturer” shall include any trader to whom the Company issues purchase orders) for products to be manufactured and supplied by the Manufacturer (“Goods”). The Order and any amendment to the Order shall be deemed delivered to the Manufacturer when transmitted by mail, fax or email to the Manufacturer. A mail, fax or email confirmation (whether sent by the Manufacturer or its agents or sub-contractors) received by the Company shall be deemed evidence of receipt and acceptance of the Order by the Manufacturer. Manufacturer must make objections, if any, it may have to any Order or amendment thereto in writing within SEVEN calendar days of receipt otherwise the Order or amendment shall be deemed accepted in its entirety.

  2. All Orders shall be produced in accordance with the specifications in the Order and the terms and conditions herein. No variation of an Order will be effective unless they are in writing and signed by the Company. If there are no specific instructions in the Purchase Order, the standards as set out in Schedule 1 hereto, to the extent that they are applicable, shall nevertheless be deemed incorporated in the Order.

  3. Notwithstanding the Manufacturer may sub-contract the Order, and notwithstanding that the Company may at the request of the Manufacturer make payment in full or partially for the Order to such subcontractor, agent or other third party direct, all the rights and obligations under the Order shall remain with the contracting parties, i.e. the Company and the Manufacturer.

  4. In consideration of the Order herein which would not be made by the Company in the absence of the undertaking below, the Manufacturer agrees and undertakes that the Manufacturer (including its sub-contractor, agents and any third party over whom it has control) will not, whether by itself, through any intermediary, directly or indirectly, engage in the production of Goods ordered by the Company herein for sale to customers of the Company for whom the Goods are made and/or to whom the Goods are sent (“Customers”). For the purpose of this clause, the Customers shall include the consignee of the Goods and/or the owner of the brand or label to be put on the Goods and/or any specific named customer that the Company informs the Manufacturer at the time of placement of the Order. The Manufacturer undertakes and warrants that it will take all necessary measures to prevent the breach of its duty hereunder by its sub-contractors, agents and other third party over whom it has control and will be liable for their breach as if it were committed by the Manufacturer.

  5. Without prejudice to any other obligations that Manufacturer owes to the Company under any other agreement, the Manufacturer will not offer the Goods ordered by the Company to any other third parties, for sale, promotion or marketing purposes. For the avoidance of doubt, there is no geographical limitation to this restriction. And this clause shall survive termination of the agreement between the Company and the Manuacturer.

STANDARD AND QUALITY OF GOODS

  1. The Goods must be manufactured in strict accordance with the sample approved by the Company or its Customers, or where no sample was supplied by the Company to the Manufacturer, with the description contained in individual Order placed with the Manufacturer.

  2. In the event that the Goods are of substandard quality or not being in compliance with the description, standard and /or the quality of the sign-off samples, the Company may reject the whole or any part of the Goods or demand the Manufacturer to replace such Goods as the Company shall stipulate. Notice of such rejection may be given by the Company to the Manufacturer after receipt of the shipment and the Manufacturer shall be liable for all losses, damages and expenses including loss of profits (if any) suffered or incurred by the Company as result of such rejection. Further the Manufacturer shall be solely liable for and shall indemnify and hold the Company harmless against any damages incurred or suffered by the Company in respect of the rejected Goods.

  3. In the event of late delivery, the Manufacturer agrees the Company is entitled to deduct 5% of the price of the entire shipment of the Goods as liquidated damages if the delay is no more than 10 days. If shipment is more than 10 days late, the Company shall have the right to reject the shipment or deduct 10% of the price of the entire shipment of Goods as liquidated damages.

  4. In the event of short shipment of over 5% of the ordered amount, the Company shall be entitled to reject the whole shipment; if short shipment is not over 5% of the ordered amount or if the Company decides to take the short shipment, the Company shall be entitled to either demand the re-shipment of the short amount immediately at the costs of the Manufacturer or deduct the pro-rated amount from the purchase price for the short amount of the Goods.

  5. In the event of the Company rejecting the Goods in its possession, the Manufacturer shall have 5 working days after the notification by the Company to request the Goods be returned to the Manufacturer at its costs and risk and refund the entire purchase price of the Goods if it has been received (without prejudice of the Company’s right to claim for other damages). In the absence of such request, the Company shall be entitled to resell the Goods for the best price and the Manufacturer shall be liable for any differences between the net price of such resale and the price paid or agreed to be paid by the Company together with all loss of profit, damages and expenses as aforesaid.

TRANSPORTATION AND DELIVERY

  1. Partial shipment and trans-shipment of the Goods shall not be permitted unless specified otherwise in the Order.

  2. The Goods shall be packed strictly as specified in each Order and secured in such manner as to reach their destination in good condition under normal conditions of transport or specific request for Company’s Customers. All shipment, delivery and payment dates are not merely estimates but are of the essence.

  3. If the Manufacturer is unable to comply with clause 3.2 hereof the Company may elect either to ship the Goods by air-freight at the Manufacturer’s expense or to cancel the Order without prejudice to any claim the Company has against the Manufacturer for breach of contract.

  4. In the event of such cancellation of the Order, in accordance with this clause 3 the Manufacturer shall immediately refund to the Company any amount of the purchase price paid by the Company for any undelivered Goods, together with interest on the amount for the time being outstanding.

  5. Acceptance of the Goods or any part thereof by the Company after the date or dates for shipment fixed by the Order shall not be deemed to be a waiver by the Company of any rights from such late shipment or non-shipment.

RISK AND TITLE

  1. Except otherwise stipulated in the shipment terms, risk of loss of or damage to any of the Goods and title thereto shall pass to the Company when they shall have been delivered effectively to the Company according to the Order except that title to the Goods shall pass to the Company upon payment of the purchase price if the payment is made prior to delivery.

SURVEY AND / OR QUALITY INSPECTION REPORT

  1. The Company is entitled to commission a survey report on the Goods and such report shall be admissible as evidence in any litigation or arbitration proceedings between the Company and the Manufacturer. The conduct of survey or other inspections by the Company is not a confirmation of the Manufacturer’s compliance with its obligations under clause 2.1 above nor does it prejudice the right of the Company under clause 2.2 to reject any of the Goods, particularly when latent defects are not readily discoverable through routine and customary inspection and examination.

  2. If the Company is of the opinion, on the basis of a certified report referred in clause 5.1, that any of the Goods do not comply in all material respects with the Order or are otherwise defective in any material respect, the Company shall at its sole discretion be entitled either to reject such Goods or to accept the Goods subject to such conditions as the Company decides.

  3. The Manufacturer shall be liable in all respects for any rejected Goods from the time of notice of rejection is given by the Company including, without limitation, responsibility for their storage and collection from the Company for return to the Manufacturer or elsewhere. In the event that replacement of the rejected Goods is allowed, the Manufacturer shall be responsible for the reproduction of the rejected Goods and the (air) freight charges to the designated port of the Customers (who rejected such Goods).

  4. If the Customers and their buying office / representative appoint their own quality assurance agent, the Company reserves the right to override the inspection reports prepared by such inspectors if the Company’s own quality control team discovers defects not recorded in such inspection reports.

ACCESS TO MANUFACTURER’S PREMISES

  1. The Manufacturer shall provide representatives of the Company or its agent with full and complete access at all times to each location at which the Goods will undergo manufacturing operations, whether at the Manufacturer’s premises or its associates, affiliates and / or sub-contractors’ premises. so as to enable the Company and its agent to carry out in-process and final inspections reviews. Any quality inspection carried out by the Company and/or the customer(s)’ inspection agent in respect of the Goods or any payment for the Goods by the Company shall not constitute acceptance of the Goods by the Company.

  2. The Manufacturer shall provide the Company with true and complete copies of all necessary documents that the Company may at anytime need (and make the originals available for Company’s inspection) to substantiate the origin of the Goods on conditions that such documents shall not be disclosed to any third party except as required by law or under any contract that the Company may have with its Customers.

WARRANTIES OF MANUFACTURER

  1. The Manufacturer hereby warrants, represents and undertakes to the Company (but without limiting any other liability of the Manufacturer in respect of the Goods) that the Goods (i) are manufactured, marked, labeled, packed, documented and shipped in accordance with the description, specifications and requirements contained in the Order; (ii) are patent or latent defect free and of good and merchantable quality and condition or are of such higher quality and condition as shall be specified in the Order, (iii) are in all respects fit and sufficient and suitable for the purpose or purposes for which the Goods are intended, (iv) are compliant with all safety requirements regarding the material used for the Goods, (v) are free of any material that may cause health hazard, (vi) for the Goods to be shipped into the EU, all materials and processes will meet current legal and safety requirements for the application of the CE marking to the Goods. (vii) where Goods are destined for overseas buyers (other than the EU), shall comply with all requirements and standard of each of the importing countries applicable to their importation into the respective countries.

  2. The Manufacturer further warrants (i) only to employ workers who meet the minimum applicable legal age requirement and to comply with all other applicable child labor laws; (ii) not to utilize any prison or forced labor in the manufacture of the Goods; (iii) that any subcontractor it uses in the production of the goods shall be approved by the Company; (iv) the genuine and true origin of the Goods and that it shall fully and accurately complete all applicable documents that it issues in respect of the Goods; and (v) none of the sourcing, processing or manufacturing of the Goods engages or involves any entities which are the subject of any sanction by the UN or EU.

INTELLECTUAL PROPERTY

  1. Notwithstanding and in addition to any confidentiality agreement what the Manufacturer may have signed with the Company, the Manufacturer agrees to use any intellectual property obtained from the Company only for the production of the Goods, which includes without limitation designs, sketches, drawings, diagrams, schematics, prototypes, moulds, and samples, for purposes of production of Goods at the order of and for the Company exclusively and will not or permit others to do any act that would, either in the home jurisdiction of the Manufacturer or the Company, constitute an infringement of the Company’s intellectual property.

  2. The Manufacturer agrees to protect and hold harmless the Company against any and all liability, loss or expenses by reason of any design, patent or trade mark (except those supplied or authorized for application to the Goods by the Company) infringement now existing or hereafter occurring with respect to the Goods. The Manufacturer shall devote its best efforts to protect any and all intellectual property rights (e.g. copyrights, design rights, symbols, logos, trade names, and trademarks) of the Company, or the Company’s’ customer(s) now existing or hereafter occurring with respect to the Goods.

BREACH OF CONTRACT

  1. The Manufacturer acknowledges that the prospective breach of any provision herein by the Manufacturer will cause the Company great and irreparable harm, for which remedies available at law may be inadequate. Therefore the Company shall be entitled to injunctive and other equitable relief, including specific performance or mandamus to prevent a breach, continued breach or threatened breach of this Agreement.

  2. The Manufacturer acknowledges that it is aware that the Goods are intended for resale by the Company to its Customer(s), and the Manufacturer shall be fully responsible for and shall indemnify the Company against any claims made by the Company’s Customer(s) in respect of the Goods resulting directly or indirectly from or in connection with the failure by the Manufacturer to comply with the requirements of individual Order (incorporating the terms and conditions herein).

  3. The Manufacturer agrees that it is responsible for and shall indemnify and hold harmless the Company, by payment in cash immediately on demand, against any loss arising from any default by the Manufacturer under the Order incurred by the Company as a result of such default, alternatively the Company shall be entitled to set off the amount of any such loss against any monies owing by the Company to the Manufacturer, whether for the Goods or otherwise

ASSIGNMENT AND CONFIDENTIALITY

  1. The Manufacturer shall not without the prior written consent of the Company assign transfer or subcontract any Orders placed by the Company or any part thereof. The Manufacturer shall keep the terms and conditions of this Agreement and any individual Orders placed strictly confidential and not disclose them to any persons other than personnel of the Company and its agent on a need to know basis.

  2. Nothing herein shall prejudice any right that the Company may have accrued by virtue of other agreements signed between the parties, including any agreement relating to confidentiality.

TERMINATION AND CHARGEBACKS

  1. The Company shall have the right to impose chargebacks on the Manufacturer in the event of (i) any agreed variation of the terms, conditions, deliveries, prices, quality, quantity and specifications of an Order, (ii) any breach of a representation or warranty of Manufacturer or of any obligation of Manufacturer under the terms and conditions herein, (iii) differences between what is shipped and what is charged in the invoice, (iv) the Company is successfully charged back or claimed by Customers.

  2. Under no circumstances will the Company be liable to Manufacturer as a result of any cancellation of any Order or otherwise for any amount in excess of the purchase price set forth in any Order, the Company shall not be liable for all incidental, special, punitive, exemplary or consequential damages arising out of or relating to any Order.

  3. The Company shall have the right to unilaterally terminate the Order upon the Manufacturer’s (i) bankruptcy or insolvency, (ii) conviction or plea to a violation of law; (iii) material breach of any provision of the Order or these terms and conditions; (iv) failure to cooperate with the Company in providing inspections or information required or permitted under the Order or these terms and conditions. Such termination shall be effective upon notice by the Company. The Company shall not be liable for any outstanding Orders issued to the Manufacturer for any cost, or expenses incurred with respect to these Orders.

GOVERNING LAW

  1. The Agreement shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereby submit to the non-exclusive jurisdiction of the Courts of Hong Kong and will not raise any issue of forum non-convenience.

  2. Notwithstanding the above clause 12.1, the Company shall have the right to elect to commence proceedings in the jurisdiction where the Manufacturer is situated in which event if the law of that jurisdiction does not allow this Agreement to be construed in the laws of Hong Kong, then this Agreement shall be deemed to be governed by the laws of that jurisdiction.

  3. These Terms and Conditions may be translated into languages other than English for convenience. The English version shall still prevail should there be any discrepancies in the interpretation between different versions of these Terms and Conditions.

Schedule 1

  1. The standard shipment term for the Goods is FOB destination. Without specific instructions to the contrary, the Manufacturer is obliged to pay to the Company’s appointed forwarder all the local charges and expenses involved in the shipping procedure to the port on FOB terms. The amount is non-negotiable with the Company. The Manufacturer is obliged to contact the forwarder and confirm the delivery/shipping procedure and charges with the Company’s appointed forwarder direct.

  2. The Manufacturer is responsible for the packaging of the Goods and securing the cargo in good order to ensure safe delivery of the Goods at the port of destination.

  3. If the destination of the Goods is Germany, all Goods must have an address label of the Company’s Customer on the packaging of the Goods which are to be provided by the Company.

  4. The materials used in the production of the Goods must comply with the following:

    • All Goods must comply with the applicable EU standard;
    • For the application of the CE mark, all compliance with CE certificate and marking requirements is needed;
    • For electrical appliances, compliance with EU’s RoHS is required; and
    • For compliance with REACH, the Manufacturer shall provide a datasheet for each shipment true and accurate description of the materials and chemicals that produced the Goods.

  5. Inspection for mass production Goods will adopt the AOL standard of Minor 4.0 and Major 2.5. Inspection of Goods will be conducted by the Company’s assigned third party and the Company will be responsible for the first inspection fees. If reinspection is allowed the Manufacturer is responsible for reworking or replacement of defective products and for the subsequent inspection fees. Such subsequent inspection(s) must be carried out by the same agency who conducted the original inspection.