MẪU HỢP ĐỒNG MUA BÁN XUẤT NHẬP KHẨU TIẾNG ANH

purchase agreement

[Broker Services Contract]

November, 2005

 

Based on the Decree of Economic Contract, the Order No. 17/HÑBT dated on 16/01/1990 of the Council of Minister stipulated in detail for implementation of the above Decree and documentaries guiding.

Based on final agreements by both parties.

 

PARTY A (Buyer)

 

PHU THAI CO.,LTD

Address                  : AN MINH commune, Thuan An  district, Binh Duong province, Vietnam

VAT code          : 3700506534

Tel No.   : 065 740777              Fax : 0650-740676

Represented by : Mr Le Quoc Hung – Director

 

 

PARTY B (Seller)

 

VIETFORWARD.COM CO., LTD

 

Address                  :               006 B1 Block, 14 Str, Ward 3, District 4, Ho Chi Minh City, Viet Nam

VAT code              : 0304411918

Tel No.                   : 08-9414666                                       Fax:  08-9414888

Represented by : Mr Chu Ba Thong – Deputy Director

 

GOODS / SERVICES

 

 

SCOPE OF SUPPLY

 

Party B agreed to supply and Party A agreed to accept the Broker Service (hereinafter called SUPPLY) at the plant of Party A located at Binh Hoa Commune, Thuan An District, Binh Duong Province. The scope of work is stated in Exhibit 01- enclosed herewith a detailed Service Document. The Exhibit is an integral part of this agreement. The SUPPLY is in accordance with the terms and conditions set forth in this AGREEMENT. The SUPPLY shall be in strict compliance with the technical and performance related specifications and SELLER shall perform in the fashion, shape and form all as set forth or referred to Scope of work (Exhibit 01) and incorporated hereby by reference and forming a part hereof  (“Specifications”) and SELLER shall make the SUPPLY unconditionally available to BUYER (“Delivery” and its derivatives) at the delivery dates (“DELIVERY DATES”) as specified in subsection 7.1 below.

 

 

SPECIFICATION CHANGES:

 

The specification will be subject to changes by BUYER, and SELLER agrees to execute any agreement for such amendment if agreed in writing by both parties.

 

In case of a conflict between or among the documentation listed above, the most recent documentation in time shall prevail. In case of a conflict between the terms of this AGREEMENT and the Specifications this AGREEMENT shall prevail.

QUALITY, ACCEPTANCE AND RETURN PROCEDURE

QUALITY

 

The SUPPLY shall be in strict compliance with the scope of work and specification in Exhibit 01 and in accordance with the terms and conditions set forth in this AGREEMENT.     

 

3.2       ACCEPTANCE OF SUPPLY

3.2.1    Party B acknowledges and agrees that acceptance of SUPPLY or parts thereof shall be subject to Party A’s review and approval. Notwithstanding Party A’s acceptance, Party A shall continue to have the right to revoke such acceptance with respect to any SUPPLY or parts thereof that Party A reasonably determines do not meet the terms and conditions set forth in this Agreement. By way of clarification and not of limitation, SELLER acknowledges and agrees that neither a progress payment, nor a partial payment nor use nor occupancy of the SUPPLY by BUYER shall constitute ACCEPTANCE of any SUPPLY or parts thereof.

3.2.2       By way of clarification and not of limitation, SELLER acknowledges and agrees that neither a progress payment, nor a partial payment nor use of the SUPPLY by BUYER shall constitute acceptance of any SUPPLY or parts thereof.

 

4.0 QUANTITY

 

4.1 PURCHASE & SALE OBLIGATIONS.

Upon BUYER’s request during the Period, and in accordance with the terms and conditions set forth in this Agreement, SELLER shall sell and BUYER shall purchase 100% awards of the SUPPLY estimated to be in list below:

 

AVERAGE VOLUME OF FORWARDING/ MONTH
Quantity	Import	Export
FCL shipments
Container 40′	20	40
Container 20′	120	60
LCL shipments (batch of goods)	40	not available
Air shipments (batch of goods)	15	not available

 

For purposes of clarification, these numbers are estimates and shall not be construed as a minimum purchase commitment or give rise to liability on behalf of BUYER if BUYER’s purchases of SUPPLY are less than these estimates.

 

4.2 REDUCTION OR DISCONTINUANCE OF PURCHASES.

SELLER acknowledges and agrees that BUYER may deem it necessary, from time to time, to reduce or discontinue purchases of the SUPPLY covered by this Agreement because of product or packaging reformulation, process change, changes in the laws governing the SUPPLY or sale or distribution of the SUPPLY, or the discontinuance of the SUPPLY, or sale, disposition, divestiture or similar transaction of the business in which the SUPPLY resides.  In such event BUYER shall provide SELLER with reasonable, but not less than sixty (60) calendar days, prior written notice of any such reduction or discontinuance, and BUYER may thereupon reduce or discontinue further purchases of SUPPLY from SELLER hereunder without penalty, liability or further obligation.

 

5.             PRICE AND TAXES

 

5.1        PRICE

As per the quotation attachment herewith called Exhibit 2 (excluding VAT). This Exhibit is an integral part of the AGREEMENT. This quotation document is based on the Service Document that Party A informed Party B in the Exhibit 1 of this Agreement. In case of any arising work beyond this Service Document, Party A and Party B will re-consider and negotiate the quotation for each arising position or work.

 

TAXES

Taxes will be paid according to VAT 10% term by Party A

 

PARTY A and PARTY B hereby agree that:

 

5.2.1    PARTY B shall be responsible for and pay all fees, expenses, charges, costs, and taxes payable for the transaction relating to the SUPPLY or parts thereof imposed by a governmental or regulatory body (including any sales, use, exercise, value-added, services, consumption, and other taxes and duties) the taxable incident of which occurs prior to or upon BUYER’s receipt of title of SUPPLY (“TAXES”). Accumulated fee must not exceed the deposit of Buyer to Seller (deposit effective November 1, 2005 is 400,000,000 VND).

 

PARTY B shall be responsible for and pay any personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its net income or gross receipts.

 

PARTY B’s invoices shall separately state the amounts of any TAXES SELLER is charging PARTY A, to the extent applicable. PARTY A shall provide and make available to PARTY A any resale certificates, information regarding out-of-state or out-of-country sales or use of equipment, materials or services, and other exemption certificates or information reasonably requested by PARTY A.

 

5.3          MEET OR RELEASE

If during the PERIOD of this Agreement BUYER can purchase SUPPLY of like quality from another supplier at a total delivered cost to a BUYER facility that is lower than the total delivered cost of the SUPPLY purchased hereunder from SELLER, BUYER may notify SELLER of such total delivered cost and SELLER shall have an opportunity to price the SUPPLY purchased hereunder on such a basis as to result in the same total delivered cost to BUYER within thirty (30) calendar days of such notice.  If SELLER timely fails to do so or cannot legally do so, BUYER may (i) purchase the SUPPLY from such other supplier in which case the obligations, including, but not limited to, any purchase and sale requirements and/or commitments, if any, of BUYER and SELLER hereunder shall be reduced accordingly; (ii) terminate this Agreement without any penalty, liability or further obligation; or (iii) continue purchases under this AGREEMENT.

 

 

5.4          MOST FAVORED CUSTOMER.  If during the PERIOD of this Agreement SELLER sells any materials which are the same as, equivalent to, or substantially similar to the SUPPLY herein, at a total delivered cost to a third party lower than the total delivered cost to a BUYER facility then in effect, then SELLER has an opportunity to price the SUPPLY purchased hereunder within thirty (30) calendar days so that it is the same or lower than the total delivered cost of such third party.  If SELLER timely fails to do so or cannot legally do so, BUYER may (i) purchase the SUPPLY from any other supplier in which case the obligations, including, but not limited to, any purchase and sale requirements and/or commitments, if any, of BUYER and SELLER hereunder shall be reduced accordingly; or (ii) terminate this Agreement without any penalty, liability or further obligation. Within thirty (30) calendar days of the Effective Date or at any time any BUYER so requests, SELLER shall certify in writing to such BUYER that SELLER is in compliance with this Section and shall provide all information that such BUYER reasonably requests in order to verify such compliance.

 

CONTRACT PERIOD AND TERMINATION

 

CONTRACT PERIOD

This Agreement shall commence on November 23, 2005 until May 31, 2006 unless earlier terminated in accordance with the provisions hereof.

Upon agreement of both parties, this Agreement may be extended under the same terms and conditions for a mutually-agreed period.  Party B must be notified at least thirty (30) days prior to the commencement of the extension(s).

 

TERMINATION

DEFAULT (for damaged goods only)

Party A shall have the non-exclusive remedies as set forth in the Section entitled Remedies for DEFAULT if (i) Party B breaches any representation, warranty, covenant or other obligation set forth in this AGREEMENT, (ii) Party B, as determined by a third party arbitrator, will be unable to perform its obligations or parts thereof under this AGREEMENT due to serious impairment of its solvency and creditworthiness or its capacity to produce or deliver goods or to render services according to the AGREEMENT; or (iii) Party B damages property or goods of Party A which might lead to the creation of LIENS relating to the SUPPLY or parts thereof (“Default”).

 

REMEDIES FOR DEFAULT

PAYMENTS WITHHELD

Party A may withhold payment in whole or in part as long as the DEFAULT remains uncured; and/or

TERMINATION

PARTY A may terminate this AGREEMENT, in whole or in part without penalty, liability or further obligation therefore, immediately upon notice of such termination to PARTY B. PARTY B shall make available for PARTY A’s immediate removal any SUPPLY or parts thereof, or other of BUYER’s property then in the possession of SELLER or any of its SUBCONTRACTORS, or under PARTY B’s or any of its SUBCONTRACTORS’ control and license any PARTY B’S IP RIGHTS and transfer PARTY A’S IP RIGHTS relating thereto in accordance with the third subsection of the Section entitled OWNERSHIP OF Intellectual Property.  PARTY A shall make available for PARTY B’s immediate removal any SUPPLY or parts thereof, or other of SELLER’s property then in the possession of BUYER.

 

The rights and remedies set forth in this section entitled REMEDIES FOR DEFAULT are not exclusive and nothing herein shall limit the rights and remedies either Party may have under this Agreement or at law.

 

TERMINATION BY PARTY A OR PARTY B

 

Party A may, for any reason and at any time, terminate this Agreement upon at least fifteen (15) calendar days written notice to party B without any penalty, liability or further obligation, except for those detailed in this Section entitled TERMINATION BY PARTY A OR PARTY B. If Party A breaches this Agreement, Party B may terminate this Agreement upon at least ninety (90) calendar days written notice to Party A without any penalty, liability or further obligation, except for those detailed in this Section entitled TERMINATION BY PARTY A OR PARTY B.

6.2.2.2    Upon receipt of such notice of termination, SELLER shall take immediate steps to bring work to a close in a prompt and orderly manner and to use its best efforts to mitigate COST.

6.2.2.3 Party A shall reimburse Party B the cost incurred by Party B for services and work performed relating to the SUPPLY and such cost of goods or services ordered by Party B in the ordinary course of business in accordance with STANDARD OF CARE for incorporation into the SUPPLY which Party B cannot terminate concurrently with Party A’s termination in accordance with this Section and for which Party B is legally obligated to pay, provided, however that Party B provides Party A with documentation and evidence relating to such cost to Party A’s satisfaction (“COST”).  Under no circumstances shall Party A be liable for consequential damages, including, but not limited to loss of anticipated profits, loss of business and loss of goodwill arising out of or relating to Party A’s termination in accordance with this Section.

 

6.2.2.4 Party B shall make available for Party A’s immediate removal any of Party A’s property then in the possession of Party B, or under Party B’s control and at Party A’s request (i) make available for Party A’s immediate removal any SUPPLY or parts thereof and license any PART B ‘S IP RIGHTS and transfer PART A ‘S IP RIGHTS relating thereto in accordance with the third subsection of the Section entitled OWNERSHIP OF Intellectual PROPERTY or (ii) mitigate Party B’s COST by selling or otherwise using any SUPPLY or parts thereof and any goods or services ordered by Party B in the ordinary course of business in accordance with the STANDARD OF CARE for incorporation into SUPPLY which Party B cannot terminate concurrently with Party A’s termination in accordance with this Section and for which Party B is legally obligated to pay. Nothing herein shall limit the PARTIES obligations as set forth in the Sections entitled OWNERSHIP OF Intellectual Property and CONFIDENTIALITY

 

EFFECT OF TERMINATION

Termination or expiration of this Agreement shall not relieve either Party of any liability or obligation it may have to the other arising out of or relating to acts or omissions occurring prior to such termination or expiration.

 

PAYMENT & DELIVERY

DELIVERY

 

Party B acknowledges and agrees the performance of the work on the date required in written document and certified by authorized representatives of Party B.

 

PAYMENT TERMS

 

For all invoices, whether subject to discount for prompt payment or not, the discount period and the due date for payment shall be cBrokerulated from the date the accurate invoice is received in PARTY A ‘s office or the date of delivery of the corresponding SUPPLY or parts thereof, whichever is later. PARTY A may withhold payment until PARTY B issues correct invoice.  Party A will inform Party B of incorrect invoice within 7 days.

On or after the EFFECTIVE DATE, PARTY A shall issue one or more purchase orders relating to the SUPPLY or parts thereof to PARTY B. Thereafter, PARTY B shall issue invoices to PARTY A corresponding in whole or in part to such purchase orders. PARTY B acknowledges and agrees that, subsequent to changes in accordance with the Section entitled CHANGE AUTHORIZATION SELLER, in no case, shall issue invoices to PARTY A prior to PARTY A’s issuance of a purchase order alteration to SELLER.  Payment should be made via T/T. The term for the payment of contractor’s services is 15 days from receipt of Contractor’s invoice and legal documents by P&G person with the following address:

Ms  Tran Thi Phuong Trang

Phone number: 0650. 754 520   Ext: 2510

Department: CBL

Procter & Gamble Vietnam Ltd

Binh Hoa Hamlet, Thuan An District, Binh Duong Province, Vietnam

 

7.3       PAYMENT WITHHELD

 

Party A may withhold payment in whole or in part if either the progress relating to the SUPPLY or parts thereof as stipulated in Party B’s invoice has not been achieved. The rights and remedies set forth in this Section are not exclusive and nothing herein shall limit the rights and remedies either Party may have under this Agreement or at law.

 

8              REPRESENTATIONS AND WARRANTIES

8.1       GENERAL REPRESENTATIONS AND WARRANTIES

 

8.1.1    Party B represents and warrants that as of DELIVERY of SUPPLY and any parts thereof thereto Party A, and covenants that, continuously thereafter, the SUPPLY and any parts thereof, shall:

8.1.1.1    be in strict compliance with all SPECIFICATIONS applicable to the SUPPLY or parts thereof;

8.1.1.2    be appropriate and fit for Party A’s intended uses, as well as for the purpose for which such supply thereof of such kind are normally used;

8.1.1.3    be in conformity with the standards of care employed by leading vendors in the industry for projects of this kind and scope (“standards of care”);

8.1.1.4    be delivered to meet the delivery dates; and

8.1.1.5    be in full compliance with all applicable laws.

 

8.2       THIRD PARTY WARRANTIES

If PARTY B’s obligations under this AGREEMENT encompass the purchase of machinery, equipment or materials from third parties, PARTY B represents and warrants that PARTY A becomes third party beneficiary to such agreement regarding any representations, warranty and covenants of such third party contained in such agreement. PARTY B shall assist PARTY A in enforcing such rights.  Such rights shall not relieve PARTY B from its obligation under this AGREEMENT but shall be in addition hereto.

8.3       TITLE AND LIENS

 

PARTY B represents and warrants that upon delivery of the SUPPLY or parts thereof PARTY B shall pass to PARTY A, and PARTY A shall receive, good and marketable title to such SUPPLY or parts thereof, free and clear of all liens, security interests, pledges, charges, mortgages, deeds of trusts, options, or other encumbrances of any kind (“LIENS”). PARTY B shall pass a security interest to PARTY A but retain the risk of loss to such SUPPLY or parts thereof whether finished or unfinished where PARTY A makes related payment at the time that PARTY B identifies such SUPPLY or parts thereof to this AGREEMENT, and shall clearly label such SUPPLY or parts thereof whether finished or unfinished as PARTY A’s property. At PARTY A’s option PARTY A may inspect and verify such identification.

 

PARTY B covenants that, commencing at EFFECTIVE DATE, and continuously thereafter, PARTY B shall honor its payment obligations as to all SUBCONTRACTORS, laborers, material suppliers relating to the SUPPLY, parts thereof and PARTY B’s performance in accordance with this AGREEMENT and that PARTY B shall keep the SUPPLY and parts thereof free and clear of any LIENS.  Upon PARTY A’s request and as applicable, PARTY B shall provide a notarized statement, certifying that all bills for labor, material, and subcontractor relating to the SUPPLY and parts thereof have been paid in full.

 

INTELLECTUAL PROPERTY RIGHTS

Notwithstanding anything to the contrary in this AGREEMENT, PARTY B (i) represents and warrants that as of the DELIVERY of the SUPPLY or parts thereof to PARTY A, and covenants that, continuously thereafter, the SUPPLY and any parts thereof and PARTY A’s purchase, use, sale, offer to sell and/or importing of such SUPPLY and any parts thereof, will not infringe any copyrights, design patents, utility patents, trademarks, trade secrets or similar intellectual property rights (collectively “IP RIGHTS”) of any third party; (ii) represents and warrants that at the EFFECTIVE DATE there are no claims currently being asserted and no actions pending or threatened against PARTY B by any third party that the SUPPLY and any parts thereof allegedly infringe, violate or misappropriate third party IP RIGHTS; (iii) represents and warrants that at the date hereof and covenants that, continuously thereafter PARTY B is the rightful owner or licensee of any IP RIGHTS relating to the SUPPLY and any parts thereof and its intended use and (iv) covenants to provide PARTY B with immediate notice of such claims or actions as they arise after the EFFECTIVE DATE.

 

8.5       CHILD LABOR AND FORCED LABOR

 

Party B hereby represents, warrants and covenants that Party B does not and will not employ children, prison, slave, forced or indentured labor, bonded labor or use corporal punishment or other forms of mental and physical coercion as a form of discipline. In the absence of any national or local law, Party A and Party B agree to define “child” as less than fifteen (15) years of age.  If local LAW sets the minimum age below fifteen (15) years of age, but is in accordance with exceptions under International Labor Organization Convention 138, the lower age shall apply.   Party A has the right to make unannounced inspections, and conduct appropriate audits of books and records, of all of Party B’s premises and any other premises employed in connection with Party B’s provision of SUPPLY or parts thereof hereunder, to ensure compliance with this Section.  Party B shall, and shall cause each entity involved through Party B in the provision of SUPPLY or parts thereof hereunder, to comply with any code of conduct or similar policy statement promulgated by Party A from time to time.

 

8.6       CORPORATE AUTHORITY

PARTY B hereby represents and warrants and covenants that (i) PARTY B is and shall be at all times a legal entity validly existing under the laws of its jurisdiction with the power to own all of its properties and assets and to carry on its business as it is currently being conducted; (ii) PARTY B has the power to execute and deliver this AGREEMENT and to perform its obligations under this AGREEMENT; (iii) PARTY B’s officer executing this AGREEMENT is duly authorized to execute and deliver this AGREEMENT on its behalf, and no further corporate proceedings are necessary with respect thereto; (iv) PARTY B is not required to obtain the consent of any third party, including the consent of any party to any contract to which it is a party, in connection with execution and delivery of this AGREEMENT and performance of its obligations under this AGREEMENT; and (v) PARTY B’s execution and delivery of this AGREEMENT and performance of its obligations under this AGREEMENT do not (a) violate any provision of its articles of incorporation or by-laws or equivalent corporate provision as currently in effect, or (b) conflict with, result in a breach of, constitute a default under (or an event which, with notice or lapse of time or both, would constitute a default under), accelerate the performance required by, result in the creation of any lien upon any of its properties or assets under, or create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any contract to which it is a party or by which any of its properties or assets are bound.

 

8.7 COMPLIANCE WITH LAWS AND SAFETY MEASURES.

 

8.7.1 LAWS

Party B represents, warrants and covenants that Party B is and shall at all times, be in full compliance with all applicable governmental, legal, regulatory and professional requirements, including without limitation all applicable laws, codes regulations, rules, ordinances, judgments, orders and decrees, including, without limitation, those related to IP Rights, fair trade and anti trust, customs, immigration, labor, employment, working conditions, worker health and safety, board of health and environmental matters (collectively “LAWS”).

 

8.7.2 LICENSES, CONSENTS, PERMITS

Party B represents, warrants and covenants that Party B has obtained and maintains in full force and effect all licenses, consents, permits, approvals, authorizations and the like required to lawfully perform Party B’s obligation under this Agreement and that it shall retain each of these items for one year after the expiration or termination of this Agreement, in each case at Party B’s expense. Party B (i) shall promptly notify Party A if Party B receives any notice, demand, summons or complaint from any governmental or regulatory authority, agency or other body relating to the SUPPLY and parts thereof or Party B’s performance in accordance with this Agreement, and (ii) shall take all steps, at Party B’s expense, to remedy and resolve any issues raised therein as promptly as practicable.

 

INDEMNIFICATION AND INSURANCE

 

SELLER’S INDEMNIFICATION OF BUYER

 

PARTY B shall, in addition to PARTY B’s obligation to indemnify PARTY A, its parent, its affiliates and subsidiaries, and their respective agents, officers, directors and employees (“BUYER INDEMNITEE”) by law, by equity or otherwise, at its own expense, at PARTY A’s option defend, indemnify and hold harmless BUYER INDEMNITEE from and against all claims, including, but not limited to third-party claims, allegations, demands, liabilities, fines, losses, damages, costs and expenses, including without limitation reasonable fees and expenses of attorneys and any amounts paid in settlement (collectively “Claims”), arising out of or related to any of the following:  (i) PARTY B’s breach of any representation, warranty, covenant or other obligation set forth in this Agreement; (ii) the negligence, gross negligence, bad faith, intentional  or willful misconduct of SELLER or subcontractors (whether or not approved by PARTY A) or their respective employees or other representatives;  (iii) PARTY B’s use of any subcontractors (whether or not approved by PARTY A) providing the SUPPLY or parts thereof or arising out of or relating to PARTY B’s performance under this AGREEMENT; or (iv) bodily injury, death or damage to personal property arising out of or relating to PARTY B’s or subcontractors’ (whether or not approved by PARTY A) and their respective employees’ or other representatives’ performance under this AGREEMENT.

INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

Notwithstanding anything to the contrary in this AGREEMENT; (i) SELLER will, at its own expense, at PARTY A R’s option, defend, indemnify and hold harmless PARTY A INDEMNITEE from and against all CLAIMS, arising out of or related to any alleged infringement, violation or misappropriation of any third party IP RIGHTS due to PARTY A’s purchase, use, sale, offer to sale and/or importing of the SUPPLY and any parts thereof, including, but not limited to, alleged infringement during a subject IP RIGHTS’ application publication period; (ii) If any SUPPLY and any parts thereof becomes, or is likely to become, the subject of a CLAIM of infringement, violation or misappropriation of IP RIGHTS, PARTY B will, in addition to PARTY B’s obligation to indemnify PARTY A INDEMNITEE as provided herein and to the other rights PARTY A INDEMNITEE may have under this AGREEMENT or at law, in equity or otherwise, promptly take the following actions at no additional charge to PARTY A and in the listed order of priority: (a) secure the right to continue using the SUPPLY and any parts thereof; (b) replace or modify such SUPPLY or parts thereof to make it non-infringing, such that the replacement or modification will not degrade the performance or quality of the affected component of the SUPPLY; or (c) remove such SUPPLY or any parts thereof from the SUPPLY and refund to the PARTY A all fees and charges associated with such SUPPLY or any parts thereof; and (iii) In the event PARTY A INDEMNITEE or PARTY B are served with a warning letter and/or a lawsuit is filed against them, alleging that the SUPPLY or any parts thereof or PARTY A’s purchase, use, sale, offer to sale and/or importing of the SUPPLY infringe the IP RIGHTS of a third party, PARTY A, at its sole discretion, may, in addition to its rights hereunder, terminate this AGREEMENT at any time without any penalty, liability or further obligation.  Notwithstanding the foregoing, PARTY A will hold PARTY B harmless with respect to liability for infringement of a design patent by reason of PARTY B making or furnishing to PARTY A hereunder, any article or articles the ornamental appearance of which was specified by PARTY A and not offered by PARTY B as an option.

 

9.3          INDEMNIFICATION PROCEDURES

PARTY A INDEMNITEE shall, within thirty (30) calendar days after receipt of notice of the commencement of any third party legal proceedings against PARTY A INDEMNITEE for which indemnity may be sought, notify PARTY B thereof; provided that the failure to provide such notice shall not relieve PARTY B of its indemnity obligations hereunder. PARTY B shall, upon PARTY A INDEMNITEE’s request, be entitled, at its own expense, to assume the defense of any such third party Claim with reputable counsel reasonably acceptable to PARTY A INDEMNITEE. PARTY B shall be entitled to settle any such third party Claim, with PARTY A INDEMNITEE’s written consent (which may be granted or withheld in PARTY A INDEMNITEE’s sole discretion). PARTY B shall pay any damages assessed against PARTY A INDEMNITEE in such third party Claim. PARTY A INDEMNITEE, at PARTY B’s cost, shall reasonably cooperate with PARTY B in the defense of such action as PARTY B may reasonably request.

 

9.4. INSURANCE

 

9.4.1 GENERAL INSURANCE POLICY REQUIREMENTS

 

PARTY B will purchase prior to the EFFECTIVE DATE and will maintain at its own cost and expense the insurance coverage set forth in Section entitled Insurance Coverage in full force and effect during the PERIOD of this AGREEMENT with underwriters acceptable to PARTY A and having an A. M. Best’s rating of “A VIII” or better or its equivalent rating where not available. PARTY B shall furnish PARTY A with Certificate(s) of Insurance indicating the company or companies affording the insurance required by this AGREEMENT, the effective dates and the dates of expiration of such insurance. All insurance policies will provide for a thirty (30) calendar days prior written notice to PARTY A in the event of termination, cancellation, non renewal or a material change to the requirements as set forth in this Section entitled INSURANCE. All insurance policies will be primary without right of contribution from any of PARTY A’s insurance carriers. PARTY B shall cause its subcontractors to carry applicable insurance coverage with minimum limits as set forth in the Sections entitled Insurance Coverage.

 

9.4.2 INSURANCE COVERAGE

Party B shall be fully responsible for labor accidents and carry insurance to protect against any cost or lawsuits regarding labor accidents of its employees if any during their working period at the plant of Party A.

 

9.4.3       Waiver of Subrogation

SELLER hereby irrevocably and unconditionally waives and shall cause its insurers to irrevocably and unconditionally waive against BUYER INDEMNITEE any rights of subrogation for any and all losses and damages caused by the perils covered by any insurance required hereunder. The policies shall provide such waivers of subrogation by endorsements or otherwise.

 

9.4.4       Liability of SELLER

SELLER’s compliance with this Section shall not relieve SELLER of any liability to BUYER INDEMNITEE arising under any other provision of this AGREEMENT except to the extent that such monies recovered are paid to BUYER INDEMNITEE to reduce SELLER’s obligations to BUYER INDEMNITEE. SELLER shall be liable for any and all deductibles it may incur in connection with any of the policies listed in the Section entitled Insurance.

 

10. MISCELLANEOUS PROVISIONS

 

10.1 CONFIDENTIALITY

Prior to the Effective Date and during the PERIOD of this AGREEMENT, Party B may become privy, whether in writing, oral or any other form, and even if not marked as confidential, restricted, proprietary or other similar designation, with of certain proprietary, technical and business information, and materials of Party A, its parents, its affiliates and subsidiaries including information relative to the Party A’s interests in specific materials or areas of business, drawings, plans, SPECIFICATIONS, know-how, discoveries, production methods and certain proprietary, technical and business information furnished to Party A by a third party on a confidential basis (collectively “CONFIDENTIAL INFORMATION”). Party B will not use or disclose to any third party and will cause SUBCONTRACTORS and Party B’s employees to not use or disclose to any third party, any CONFIDENTIAL INFORMATION other than for Party B’s performance in accordance with this Agreement. The commitments set forth in the preceding sentence shall not extend to any portion of CONFIDENTIAL INFORMATION, (i) which is already in Party B’s lawful possession at the time of disclosure by the Party A, as established by relevant documentary evidence satisfactory to Party A; (ii) which is through no act on the part of the Party B, generally available to the public; (iii) which corresponds to that furnished by the Party A to any third party on a non-confidential basis; or (iv) which is required to be disclosed by law or government regulation, provided that Party B provides reasonable prior notice of such required disclosure to the Party A.  Party B shall take any appropriate reasonable security precautions requested by Party A including, without limitation, prohibiting visitors during production of the SUPPLY. Party B shall, at Party A’s option return or destroy all Confidential Information promptly upon the earlier of termination, expiration of this Agreement or completion of the SUPPLY. Party B may retain a single archive copy for reference purposes.  All CONFIDENTIAL INFORMATION shall be and remain the sole property of the Party A, and Party B shall not have or obtain any rights therein. Party A shall be entitled to specific performance and injunctive relief as remedies for any breach or threatened breach of any provision of this Section, without the necessity of posting bond or proving actual damages, which remedies shall not be deemed to be exclusive remedies for such breach or threatened breach by Party B, but shall be in addition to all other available remedies.  The rights and obligations as set forth in this provision shall survive the termination or expiration of this Agreement.

 

10.2 FORCE MAJEURE

Acts of God, war (declared or undeclared), acts of a public enemy, acts of a Government of any country, state or political subdivision or regulatory agency thereof or entity created thereby, embargoes, terrorism or sabotage, fires, floods, weather, explosions, or other catastrophes, epidemics or quarantine restrictions, or other cause(s) beyond the reasonable control of a Party (“Force Majeure Event”) which prevent a Party from performing any obligation hereunder, or PARTY A from receiving or using SUPPLY (“Affected Party”), shall suspend the Affected Party’s obligation to perform hereunder during the period required to remove the Force Majeure Event and the Affected Party shall promptly notify the other Party of the suspension and cause of such suspension. If the period of suspension lasts longer than ninety (90) calendar then the Parties shall negotiate in good faith an equitable adjustment of this Agreement.

 

10.3 ASSIGNMENT

Except as otherwise set forth in this Agreement, Party B shall not transfer or assign this Agreement or any of its rights or obligations hereunder, by delegation, subcontracting, operation of law, or otherwise, without the prior written consent of Party A.  Any such transfer or assignment without Party A’s prior written consent shall be null and void.  Party A may, without restriction, transfer or assign this Agreement in whole or in part or any of its rights or obligations hereunder, by delegation, operation of law, or otherwise, in particular but not limited to any third party with wider scope without the prior written consent of Party B.

If Buyer sells or otherwise disposes of any subsidiary, division, or other product line (“Business Unit”), the disposed Business Unit shall have the right to issue PURCHASE ORDERS for the SUPPLY or parts hereof as a Buyer hereunder and have Seller fulfill them under the terms and conditions of this AGREEMENT for a period up to twenty-four (24) months following such sale or disposition; provided that the disposed Business Unit or its buyer agrees to be bound by the provisions of this AGREEMENT to the extent applicable.

 

10.4 CHANGE IN SELLER’S OWNERSHIP AND/OR CHANGE OF CONTROL

10.4.1  Party B shall notify Party A in writing at least ninety (90) calendar days prior to (i) any change in ownership of Party B; or (ii) Party B selling, transferring or otherwise disposing all or substantially all of its assets used in any way to perform its obligations set forth in this Agreement (collectively “CHANGE IN CONTROL”).

 

10.4.2  If a CHANGE IN CONTROL involves an acquirer not affiliated with Party B, Party B herewith grants Party A a right of first refusal to match a bona fide offer from such party on the same terms and conditions.

 

10.4.3  In case of a CHANGE IN CONTROL as set forth in 10.4.1 (ii) Party B at Party A’s sole discretion and direction shall assign this Agreement in whole to the acquirer and cause such acquirer to assume this Agreement.

 

10.4.4  In addition, within forty-five (45) calendar days as of receipt of notice of a CHANGE IN CONTROL Party A shall be entitled to terminate this Agreement in whole or in part without any penalty, liability or further obligation with immediate effect. If Party A terminates this Agreement, Party B shall make available for Party A’s immediate removal any SUPPLY or parts thereof, or other of Party A’s property then in the possession of Party B, or under Party B’s control.

 

10.5 CONTRACTOR STATUS

The Parties are and shall remain independent contractor with respect to each other, and nothing in this AGREEMENT shall be construed to place the Parties in the relationship of partners, joint ventures, fiduciaries or agents.  Neither Party is granted any right or authority to assume or to create an obligation or responsibility, express or implied, on behalf of or in the name of the other or bind the other in any manner whatsoever.  Neither shall the employees, workers, laborers, or agents of Party B be deemed employees of Party A.  Party A shall not be liable or responsible for any and all personal injuries or damages to third parties or their property, caused by any such employee, worker, laborer, or agent.  Party B shall, at all times, be directly responsible and liable for the enforcement of, and compliance with all existing laws particularly in respect of any and all claims brought by its personnel for the enforcement of the provisions of applicable labor laws, legal requirements relating to the SUPPLY or parts thereof, and other pertinent labor and social legislation.

 

10.6 MODIFICATION AND WAIVER – CHANGES – AUTHORIZATION

No modification, amendment or waiver of any provision of this Agreement shall be valid or binding unless in writing and executed by the Party against whom enforcement is sought: (i)  as agreed to in writing by Party B and Party A; (ii) in the case of Party A, signed by authorized Ms. Aruna Darolia – Senior Purchasing Manager; and (iii) in the case of changes to the PRICE if such changes are based on a lump sum offer prepared by Party B and agreed in writing both PARTIES.

No waiver by either Party of any breach, or the failure of either Party to enforce any of the terms and conditions of this Agreement, shall affect, limit or waive that Party’s right to enforce and compel compliance with all terms and conditions of this Agreement, or to terminate this Agreement according to its terms. No payment of Party A to Party B shall constitute a waiver of any of Party A’s rights, in particular but not limited to Party A’s rights relating to unsettled liens or SUPPLY or parts thereof not being in compliance with the terms and conditions as set forth in this Agreement.  Party B acknowledges and agrees that Party B’s acceptance of final payment by Party A shall constitute a waiver of all of Party B’s claims except where unresolved and notified to Party A in writing prior to acceptance of such final payment.

 

10.7 INVALIDITY OR ILLEGALITY

In the event any provision of this AGREEMENT is declared to be void, invalid or unlawful by any court or tribunal of competent jurisdiction, such provision shall be deemed severed from the remainder of this AGREEMENT and the balance shall remain in full force and effect. The parties shall undertake to replace the invalid, ineffective, or unenforceable provisions with valid, effective, and enforceable provisions, which, in their commercial effect, approximate as closely as possible the intentions of the parties as expressed in the invalid, ineffective, or unenforceable provisions.

 

NOTICES

All notices given hereunder shall be in writing and shall be deemed to have been duly given if delivered personally with receipt acknowledged or sent by registered or certified mail, if available, return receipt requested, or by facsimile, or by recognized overnight courier for next day delivery, addressed or sent to the Parties at the following addresses and facsimile numbers or to such other additional address or facsimile number as any Party shall hereafter specify by notice to the other Party:

 

 

PARTY B:                (the broker)

 

PARTY A:                Aruna Darolia, Senior Purchasing Manager

Procter & Gamble Vietnam Ltd

Binh Hoa Hamlet, Thuan An District, Binh Duong Province, Vietnam

HEADINGS

Section headings hereof reference and are for convenience only and shall not affect the interpretation hereof.

 

10.10 COUNTERPARTS

The Parties may execute any number of counterparts to this Agreement, each of which shall be an original instrument, but all of which taken together shall constitute one and the same Agreement.  Signed facsimile copies of this Agreement will bind the Parties to the same extent as original documents.

 

10.11 ENTIRETY

This AGREEMENT, which includes the recitals, schedules, exhibits and annexes attached or subsequently incorporated in this AGREEMENT, constitutes the entire understanding and agreement between the Parties regarding the subject matter of this AGREEMENT, and supersedes all prior or contemporaneous agreements, oral or written, made between the Parties regarding such subject matter.

 

10.12 AGREEMENT PRECEDENCE

For their convenience, the Parties may use, from time to time, their standard purchase orders, site level execution agreements, sales releases, delivery schedules, acknowledgments, invoices and other similar preprinted forms.  In the event of a conflict between this Agreement and any of these documents that purport to govern the same matters set forth herein, this Agreement shall prevail unless the other document (i) is executed and delivered by both Parties hereto in writing subsequent to the date of this Agreement, (ii) specifically refers to this Agreement and to this Section, and (iii) indicates that it is intended to, and shall take precedence over, this Agreement.

 

GOVERNING LAW, CONSTRUCTION AND LANGUAGE

 

10.13.1 This Agreement shall be governed and interpreted for any purposes in accordance with the internal or local laws applicable to contracts.

 

10.13.2 The Parties understand the English language and are fully aware of all terms and conditions of the present Agreement. This Agreement includes two (2) English sheets.

 

10.14   SURVIVAL PROVISIONS

The expiration or termination of this AGREEMENT shall not affect such of the provisions of this AGREEMENT as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

 

PUBLIC DISCLOSURES

Party B shall not in any way disclose the terms and conditions of this Agreement or the subject matter of this Agreement without the prior written consent of Party A, except as required by law.

 

SUBCONTRACTOR AND PERSONNEL RELATIONS

Party B may NOT delegate Party B’s obligation under this AGREEMENT or any part thereof, to any third party, including any Party B’s affiliate (“subcontractor”).

 

INSPECTION AND AUDIT RIGHTS OF THE BUYER

 

Party A and its duly appointed representatives shall have the right to:

Require Party B to provide information and documentation relating to performance of the Agreement, and:

Interview Seller’s key employees wherever located, all to the extent relating to Seller’s obligation in accordance with this Agreement.

 

Party B shall keep records relating to the SUPPLY, parts thereof and Party B’s performance in accordance with this Agreement, and accurate and complete accounting records, in accordance with the generally accepted accounting principles in Party B’s country of residence/incorporation pertaining to Party B’s performance in accordance with this Agreement (RECORDS). Party B shall notify Party A in writing prior to destruction of RECORDS. Party A shall notify Party B within thirty (30) calendar days as of receipt of Party B’s notice whether Party B may destroy or shall retain RECORDS.

 

TIME IS OF THE ESSENCE

The Parties agree that time is of the essence with respect to purchases made under this Agreement.  The Party A anticipates prompt and reliable deliveries as one of the principle considerations of this Agreement.

 

OFFICERS NOT TO BENEFIT

Party B covenants that Party B will not and Party B will cause all its agents, or employees not to offer or give, or agree to offer or give, to any employee of Party A, consultants of Party A, or any other person, any bribe, gift, gratuity or commission as an inducement or reward for doing or forbearing to do any action in relation to the Agreement or any other contract with Party A, or for showing or forbearing to show favor or disfavor to any person in relation to the Agreement or any other contract with Party A.

 

SETTLEMENT OF DISPUTES

 

10.20.1  The Parties agree to work together to resolve any disputes arising out of or related to this AGREEMENT in a timely, professional and non-adversarial manner.

 

10.20.2  If project personnel of the Parties cannot resolve a dispute within 7 calendar days from the day the dispute arose, the parties shall submitthe dispute to the designated higher-level managers within the organizations of the Parties to negotiate in good faith to find a mutually acceptable resolution. Such higher-level manager shall be designated promptly after the EFFECTIVE DATE, and shall have authority to settle disputes.

 

10.20.3  In the event that such designated higher-level managers are unable to resolve the dispute within 14 calendar days from the day the dispute arose, the matter shall be submitted for mediation in accordance with the current legal rules.

 

10.20.4  If mediation does not resolve the dispute, all disputes arising out of or in relation to this contract shall be finally settled by the Vietnam International Arbitration Centre at the Vietnam Chamber of Commerce and Industry in accordance with its Rules of Arbitration

 

10.20.5  Such mediation and arbitration, if any, shall be conducted in the offices of the Party A or its affiliate that issued the Purchase order, or other mutually acceptable location, and shall be held in the English language.

10.20.6  In no event may a demand for arbitration be made after the date on which institution of legal or equitable proceedings is barred as set forth in the Section entitled APPLICABILITY AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.  No arbitration arising out of or relating to this AGREEMENT may include by joinder, consolidation or in any manner any person or entity who is not a party to this AGREEMENT.

 

10.20.7  Any award rendered by the arbitrator(s) will be final, and judgment may be entered upon it in any court of competent jurisdiction.

 

10.20.8            The dispute resolution procedure in accordance with this Section shall neither have suspensive effect nor relieve the Parties of any of its obligations hereunder or otherwise with respect to the SUPPLY, all of which shall remain absolute.

 

LABOR AND JURISDICTIONAL DISPUTES

 

The Party B shall give to the Party A prompt notice of every labor dispute or issue, which may affect Party B’s performance in accordance with this AGREEMENT.  Party B acknowledges and agrees that Party B shall be liable and responsible for any liabilities or obligations caused by such labor dispute or issue.

 

10.22   INDEPENDENT CONSULTANTS

Party A, at Party A’s expense, may appoint independent consultants to assist on specific technical matters relating to this AGREEMENT and notify Party B accordingly.

 

10.23   CONDITIONS FOR VISITS OR SERVICES AT BUYERS PREMISES

 

10.23.1            SAFETY/SECURITY MEASURES

Party B shall obtain SITE regulations and safety regulations from Party A and shall strictly comply and cause its employees to strictly comply with such SITE regulations and safety regulations.  Party B acknowledges and agrees that parcels, packages, briefcases, bags, and similar items carried by Party B employees shall be subject to inspection by security representatives of Party A.

 

10.23.2            COMMERCIAL ACTIVITIES

Party B shall not and shall cause its employees not to establish any commercial activity or issue concessions or permits of any kind to third parties for establishing commercial activities on the SITE.

 

10.23.3  OBLIGATIONS OF PARTY B

Party B  will designate a delegate amongst its personnel assigned to its performance under this AGREEMENT (“DELEGATE”). If Party A considers the DELEGATE as not being suitable or capable, Party A shall give Party B written notice requesting that DELEGATE shall be replaced with 5 days in advance .  Party B, at Party B cost, shall immediately replace the DELEGATE with a substitute of suitable ability and qualifications.  Any replacement is subject to Party A prior approval This delegate will:

(i)            supervise and control SELLER’s personnel assigned to SELLER’s performance under this AGREEMENT and distribute the workload appropriately; and

(ii)           act as SELLER’s agent.

 

 

10.24   SPECIAL CONDITIONS FOR SELLER PERSONNEL ASSIGNED TO BUYER’S SITE

 

10.24.1  If Party B’s personnel handles and/or processes chemicals, Party B shall provide for safety training of such personnel (Party A will support the training).

 

10.24.2  Party B shall provide security training to Party B ‘s personnel in Exhibit 01

 

10.24.3  Party B shall cause its personnel not to use, possess, or distribute any drug or drug-like substance whose sale, use, or possession is unlawful, or any prescribed substance used without a prescription (hereinafter referred as to “controlled substance”) or alcoholic beverage on any of Party A ‘s premises or while Party B’s personnel representing Party A on third party premises. In addition to Party B’s obligation to indemnify Party A and to the other rights Party A may have under this PURCHASE CONTRACT or at law, in equity or otherwise, personnel not complying with this subsection shall be banned from Party A’s premises.

 

10.24.4  The following shall apply when Party B personnel is assigned to Party A’s SITE as their primary place of work for more than ten (10) consecutive business days or more than thirty (30) business days in one calendar year:

 

10.24.4.1               The Party B shall not permit users of controlled substances to work on Party A ‘s premises or to represent Party A on another’s premises.    Any employee who is assigned to work on Party A’s premises must be tested for the presence of amphetamines, barbiturates, benzodiazepines, cannabinoids (marijuana, THC, hashish), cocaine, opiates (Codeine, Morphine, Oxycodine, Hydromophone, Hydrocodone), methadone, methaqualone, and phencyclidine (PCP) by a qualified laboratory using initial screening and confirmation of any positive results.  A qualified laboratory must meet any federal, state, and local laws and regulations, and use a cutoff limit within the detection ranges specified in this contract.    Party B will perform drug tests for those individuals working at Party A’s SITE in accordance with the laws of Vietnam.  Anyone who confirms positive for a controlled substance without a legitimate medical reason will not be assigned to work on Party A’s premises.  Furthermore, the Party B will control the work assignments of anyone taking a prescription drug for a legitimate medical reason so the person does not present a safety risk to himself/herself, other personnel, or Party A ‘s property.

 

10.24.4.2               Party B must have a written policy on substance abuse to assure compliance with the above criteria.  A qualified laboratory must use a cutoff limit within the detection ranges As per regulation of Vietnamese Government on Labor Law and of Ministry of Health

 

10.24.5  If Party B’s personnel regularly co-mingles with Party A’s personnel, Party B shall perform conviction checks on its employees. Conviction checks shall be performed for both felonies and misdemeanors. Party B will re-perform conviction checks every one years for those individuals assigned to Party A’s SITE. Party B must exclude an individual from Party A’s premises or from directly representing Party A if he/she has ever been convicted of the following types of crime:

Any type of Murder

Voluntary Manslaughter

Aggravated Assault

Assault with a Deadly Weapon

Kidnapping

Rape

Sexual Battery or Gross Sexual Imposition

Arson

Robbery

Trafficking in Drugs

If the Party B ‘s employee will deal directly with cash on behalf of Party A or with the authorization of any type of payment, the Party B must exclude any individual who has ever received a misdemeanor or felony conviction for Theft, Embezzlement, and/or Fraud of any kind.

 

In addition, Party B must exclude any individual convicted of a felony, e.g., Burglary, Unauthorized Criminal Access to Computer Systems, etc., within the last five years from Party A’s premises or from directly representing Party A.

 

The Party B must exclude any individual convicted of a misdemeanor within the last two years.  Individuals with convictions for traffic violations do not fall into the exclusion category.  Individuals with DUI convictions do not fall into the exclusion category unless he/she will be driving a Party B vehicle, or multiple charges exist.

 

10.24.6  Party A shall have the right to audit Party B’s records to confirm that the conviction checks and drug tests have been and are being conducted. Any information regarding any of Party B ‘s personnel revealed during such audit shall be hold in confidence.

 

BUYER and SELLER have caused their respective duly authorized representatives to execute this Agreement, acting as agent(s) as set forth herein.

 

 

FOR: PROCTER & GAMBLE VIETNAM	FOR: the Broker
BY:                                                                                         (Signature)	BY:                                                                                         (Signature)
ARUNA  DAROLIA
TITLE:  As Senior Purchasing Manager	TITLE:
DATE:	DATE: