TERMS AND CONDITIONS OF PURCHASE
Design Pool Limited (dba NATIVE UNION) Terms and Conditions of Purchase shall take effect from January 1, 2023 (hereinafter the “Terms and Conditions”). The present Terms and Conditions are an essential part of the Purchase Order; however, the Terms and Conditions can be associated with a separate Manufacturing or Supplier Agreement concluded between Design Pool Limited (dba DPL) and the Supplier (recipient of the Purchase Order). In case of any disagreements of terms between the Manufacturing/Supplier Agreement and the present document, the terms in the Agreement will prevail.
PROTOTYPES and PRE-PRODUCTION. Prior to manufacturing any Product requested by DPL in the POs, the SUPPLIER shall submit to DPL prototypes and pre-production samples of Products for DPL's approval and/or comments. the SUPPLIER shall provide DPL with additional prototypes and pre-production samples incorporating DPL's comments or instructions until a final approved sample (golden sample) for mass production of each Product has been approved by DPL.
TESTING AND INSPECTION. After the SUPPLIER commences mass production of the Products, DPL shall have the right to conduct inspections and test of the raw materials, work in progress and the manufacturing process. The SUPPLIER shall provide any assistance requested by DPL with respect to such inspections and testing without charge.
All Products must have successfully passed DPL Testing and Inspection Requirements. In the event that the Products cannot pass the Testing and Inspection Requirements, the SUPPLIER shall not sell and DPL has no obligation to purchase unless DPL waives the Testing and Inspection Requirements or modifies them in writing.
DPL reserves the right to charge to the SUPPLIER any cost of inspection, re-inspections and tests when the Products rendered for inspection and acceptance are not in compliance with the requirements of the PO and/or this paragraph. For the avoidance of doubt, the cost for any re-inspection or test to be reimbursed by the SUPPLIER to DPL shall be at a daily rate of USD 300 per DPL inspection staff.
The SUPPLIER shall be liable for all losses, claims, demands, damages, costs, expenses and liabilities which DPL may sustain or incur or which may be brought or established against DPL by any party as a direct or indirect result or otherwise arising out of such unfulfilled requirements.
The SUPPLIER shall make available to DPL, upon its request, all relevant books, records, inventories and facilities for DESIGN POOL’s inspections and audits related to the Purchase Order.
COMPONENTS AND TOOLS. Subject to DPL’s prior written approval, the SUPPLIER may source or otherwise supply certain products or components of Products to DPL. The SUPPLIER represents and warrants that such products or components of Products are free from any and all intellectual property infringement in the countries (including the country where the Products are made by the SUPPLIER or the SUPPLIER’s Vendors and in the countries where the Products are marketed or sold by DPL).
DPL shall provide Tools to the SUPPLIER as necessary for the manufacture of the Products either free of charge or at an agreed cost. If the Tools are provided to the SUPPLIER free of charge, it shall remain the property of DPL. SUPPLIER agrees to carry out all necessary maintenance at its own expenses in order to keep the Tools in good working order.
If any Tool is either lost or no longer fit for commercial use, the SUPPLIER shall make a declaration to DPL explaining such lack of fitness. SUPPLIER may compensate DPL for the full replacement value of such Tool which value shall be determined by DPL.
PURCHASE ORDER. The Purchase Order (hereinafter referred to as the “PO”) consists of these Terms and applicable Purchase Order. Upon confirmation of the conditions stated on each PO, The Supplier must accept the PO within 3 days of the issuance of the PO, either by electronic mail, stating clearly that the PO has been accepted, or by post to DPL registered addressed mentioned in the present PO, with the Suppliers’ authorized personnel signature.
DPL reserves the right to revise or cancel POs at any time by providing written notice to SUPPLIER. The SUPPLIER shall then immediately cease all production of the Products and wait for further instructions from DPL. Such cancelled or revised POs remain DPL’s liability except for cancellation resulting from the SUPPLIER’S failure to deliver the Products on time or to the specified quality or price. DPL may re-schedule delivery of POs with notice to the SUPPLIER prior to the re-scheduled delivery date.
DELIVERY. Supplier shall, at its own expense, pack, load, and deliver the products to the Delivery Point and in accordance with the invoicing, delivery terms, shipping, packing, and other instructions printed on the face of the PO or otherwise provided to Supplier by DPL in writing. No charges will be allowed for freight, transportation, insurance, shipping, storage, handling, demurrage, cartage, packaging, or similar charges unless provided for in the applicable PO or otherwise agreed to in writing by DPL.
The SUPPLIER acknowledges that time is of the essence with regard to delivery of the Products. Delivery Lead Time for shipment of the Products shall be subject to further agreement between the Parties as stipulated in the POs.
If any delay in shipment under the POs is due to SUPPLIER’s failure to comply with the POs, Regulations, customary standard in the industry, Specifications and/or Testing and Inspection Requirements, SUPPLIER shall forthwith submit full explanation for such delay together with replenishment plan to DPL. DPL shall have the absolute discretions to accept such delay or cancel the related POs and rights to claim SUPPLIER for all losses, claims, demands, damages, costs, expenses and liabilities which DPL may sustain or incur or which may be brought or established against DPL by any party as a result or otherwise arising out of such delay or cancellation. SUPPLIER shall waive all rights to make claims or damages resulting from such delay or cancellation against DPL.
Supplier shall follow all shipping instructions of DPL and cooperate with DPL’s freight forwarder and/or customs broker, whatever the case may be, as directed by DPL (including by providing requested shipping documentation). The Supplier shall comply with all the requirements of the intended export country where DPL is marketing the goods.
LATE DELIVERY PENALTY. Delivery must be in strict compliance with the Expected Delivery date in this PO. In the event Supplier fails to supply the products by the Expected Delivery Date, DPL shall be entitled to invoice Supplier 1% of the total value of this PO for each week of delay, starting from the Expected Delivery Date (or pro rata for part of a week that the products are delayed) as liquidated damages in respect of such delay up to a maximum amount equal to 10% of the total value of this PO. DPL reserves its rights to implement this clause depending on the circumstances that have created the delay. DPL may at its own discretion decide to enforce or not the late delivery penalty.
In the event the delivery date of the products by Vendor exceeds 2 weeks from the Expected Delivery Date, Supplier shall be further liable to Purchaser for any and all costs and expenses incurred by DPL as a result of such delay.
TITLE AND RISK OF LOSS. The SUPPLIER shall bear all risk of loss until the receipt of Products is duly acknowledged by DPL. Title to the Products delivered shall pass to DPL upon DPL’s receipt hereof.
PRICE/PAYMENT TERMS. DPL shall pay for the Products in USD in accordance with the terms stipulated in the PO. Prices for the Products are set out in the PO. Price increases or charges not expressly set out in the PO shall not be effective unless agreed to in advance in writing by DPL. Supplier will issue all invoices and other necessary documentation for export on a timely basis. All invoices delivered by Supplier must meet DPL’s requirements, and at a minimum shall reference the applicable PO, the Harmonized Tariff Schedule system (HTS code). DPL shall have the right to withhold payment of any invoiced amounts that are disputed in good faith until the parties reach an agreement with respect to such disputed amounts and such withholding of disputed amounts shall not be deemed a breach of this Agreement nor shall any interest be charged on such amounts.
TAXES. Unless otherwise stated in a PO, all prices or other payments stated in the PO are exclusive of any taxes. Notwithstanding any other provision of this Agreement, DPL may withhold from all amounts payable to Supplier all applicable withholding taxes and to remit those taxes to the applicable governmental authorities as required by applicable laws, may it be the case.
HAZARDOUS MATERIALS. The Supplier agrees to provide, upon and as requested DPL, to satisfy any applicable laws governing the use of any hazardous substances either of the following: (a) all reasonably necessary documentation to verify the material composition, on a substance by substance basis, including quantity used of each substance, of any Goods, and/or of any process used to make, assemble, use, maintain or repair any Goods; or (b) all reasonably necessary documentation to verify that any Goods and/or any process used to make, assemble, use, maintain or repair any Goods, do not contain, and the Services do not require the use of, any particular hazardous substances specified by DPL. The Supplier agrees expressively to comply with ROHS, REACH and CAL P65 regulations as applicable.
SUPPLIER’S WARRANTIES. The SUPPLIER warrants and represents that all Products furnished according to this Terms and Conditions, including all parts, components and materials incorporated in the Products shall conform to all provisions as set in this Terms; be free from defects in materials, workmanship and manufacture; be safe for consumers’ use and of merchantable quality; be fit and serviceable for the purpose of the Products; and comply with all Regulations.
The SUPPLIER warrants and represents that, prior to delivery, the Products has passed and complied with all applicable domestic and international regulations, laws, rules, the highest standards of local industry, including without limitation to labor, child labor, forced labor (including physical or mental coercion) and employment, health, product safety, customer protections, and all tests as required, to ensure the Products are free from defects and that all known problems in the Products have been eliminated; and that the Products will meet and comply with DPL’s approved materials and/or design. The SUPPLIER expressly acknowledges that DPL has not undertaken and has no duty to test, verify or otherwise ensure that the Products comply with the Regulations, standards, rules and laws. The SUPPLIER will defend, indemnify, and hold DPL harmless from any losses, costs, or expenses resulting as a direct or indirect result of the SUPPLIER’s violation or failure to abide by these provisions as well as any laws, rules, or ordinances of the applicable labor law and Regulation.
The SUPPLIER warrants that if DPL at any time discovers any errors, inaccuracies, inconsistencies, defects and/or incorrect reference in the Products after DPL’s acceptance of the Products, SUPPLIER shall at its sole expense correct such Products promptly. The SUPPLIER shall deliver such corrected Products to DPL or the DPL’s Vendors within forty-five (45) days of DPL’s notice to SUPPLIER of the need for corrections.
The SUPPLIER warrants to take steps to ensure and procure SUPPLIER’s Vendors shall likewise strictly comply with all provisions to perform any of the obligations of SUPPLIER under this Terms, or with respect to the supply of materials, parts and components, and such sub-contracting (if any) shall not be taken to relieve SUPPLIER from any of its duties or obligations under this Terms.
The warranties given by SUPPLIER under this clause and the other provisions of this Terms and Conditions shall survive delivery of the Products and shall not be deemed waived, either by reason of DPL’s inspection and acceptance of the Products or by payment for them.
INTELLECTUAL PROPERTY. DPL shall retain ownership of all its IP Rights. DPL grants the SUPPLIER, or will procure the grant to the Supplier, a worldwide, non-exclusive, royalty-free license to use DPL IP Rights for the duration of the Contract Period solely for the purpose of performing its obligations under this Agreement. The Supplier shall not sub-license or transfer any DPL IP Rights except to subcontractors.
The Supplier’s use of the Trade Marks is limited to applying them to the Products in such form and manner as specified by DPL, and not otherwise.
Under this Terms the Supplier may source or otherwise supply certain products or components of Products to the Customer. The Supplier represents and warrants that such products or components of Products are free from any and all intellectual property infringement in the countries (including the country where the Products are made by the SUPPLIER and in the countries where the Products are marketed or sold by DPL.
The SUPPLIER agrees to use its best efforts to protect Customer’s IP Rights. If any of the Customer’s IP Rights is infringed, the SUPPLIER shall forthwith notify DPL of any instances in which any person other than DPL requests the SUPPLIER to manufacture Products using any of the Customer’s intellectual property, any name, trade mark, logo, sign or specifications identical to or confusingly similar to those used by DPL and any circumstance which suggests that any person may be wrongfully using any such intellectual property, name, trade mark, logo, sign or specifications. The SUPPLIER shall not take any action with respect to any such request unless directed in writing to do so by DPL.
INDEMNITY. Indemnities. Supplier shall indemnify, defend and hold harmless DPL, its Affiliates, and their respective officers, directors, employees, consultants, and agents (the “DPL Indemnified Parties“) from and against any claims, fines, losses, actions, damages, expenses, legal fees and all other liabilities brought against or incurred by the DPL Indemnified Parties or any of them arising out of: (a) death, bodily injury, or loss or damage to real or tangible personal property resulting from the use of or any actual or alleged defect in the Goods or Services, or from the failure of the Goods or Services to comply with the warranties hereunder; (b) any claim that the Goods or Services infringe or violate the Intellectual Property Rights or other rights of any person; (c) any intentional, wrongful or negligent act or omission of Supplier or any of its Affiliates or subcontractors; (d) Supplier’s breach of any of its obligations under this Agreement; or (e) any liens or encumbrances relating to any Goods or Services.
LIMITATION OF LIABILITY. Except for supplier’s obligations and except for damages that are the result of the gross negligence or willful misconduct of a party, in no event will either party be liable to the other party or any other person for any indirect, incidental, consequential, or punitive damages, including any lost profits, data, goodwill, or business opportunity for any matter relating to this agreement.
INSURANCE. The SUPPLIER warrants and represents to DPL that SUPPLIER and SUPPLIER’s Vendors are maintaining insurance (including product liability insurance) with reputable insurers, with coverage minimum amount of US$5,000,000.00 any one occurrence or with aggregate limit of no less than US$5,000,00.00 to DPL to cover any claims or any other liabilities whether arising in contract, tort, negligence, breach of statutory duty in connection with this Terms and Conditions or performance of its obligations or duties under this Terms, and shall provide a copy of the insurance policy to DPL on written request. In addition, the SUPPLIER will take out and maintain, at its own cost, such insurance policies and coverages as may be reasonably required by DPL from time to time. If requested, DPL will be named as an additional insured under any such policies. If requested by DPL, such insurance will provide that it cannot be cancelled, or materially changed so as to affect the coverage provided under this Terms, without the insurer providing at least 30 days prior written notice to DPL.
ASSIGNMENT. The SUPPLIER shall not assign any rights, obligations or duties granted hereunder to any other party nor subcontract nor part with any of its rights, obligations or duties hereunder save as provided under the Terms.
CONFIDENTIALITY. The SUPPLIER may receive certain information related to DPL that it considers to be confidential and proprietary. The SUPPLIER shall keep such information confidential during and not use Confidential Information except in performance of the SUPPLIER’s obligations under the Terms and Conditions.
WAIVER. No waiver by either Party in enforcing any of its rights shall prejudice its rights to do so in the future.
GOVERNING LAW. The Terms and Conditions shall be governed by the Hong Kong SAR laws. Any disputes will be resolved at Hong Kong courts.
LANGUAGE. It is agreed and accepted by the parties that this PO and any related documentation is written in English only.
MISCELLANEOUS. Nothing contained in the Terms and Conditions shall be construed as creating a partnership, a joint venture or an agency relationship between DPL and the SUPPLIER. Neither party shall have any authority to bind the other party in any way. DPL and the SUPPLIER agree to perform the Terms and Conditions only as an independent contractor. The Terms and Conditions are not for the benefit of any third parties.
DPL reserves the right to amend the present Terms and Conditions giving the SUPPLIER 30 days written notice. If such notice is not provided timely, the previous Terms and Conditions prevail.