Lotus Pharmaceutical Co., Ltd.
STANDARD PURCHASE ORDER TERMS AND CONDITIONS
This Standard Purchase Order Terms and Conditions (“Terms”) only apply to transactions that do not have a written agreement, duly executed by both parties. If there is such an agreement, then those terms shall be the terms that govern the transaction and relationship of the parties. In the absence of such a written agreement, duly executed by both parties, then these Terms provide you (“Seller”) with the legal stipulations of the purchase order (“Order”) with Lotus Pharmaceutical Co., Ltd. (“Buyer”) for the goods and/or services that are described in the Order (“Goods”).
1. OFFER AND ACCEPTANCE: Seller accepts the Order and any amendments by signing the acceptance copy of the Order and returning it to Buyer promptly. Even without such written acknowledgment, Seller's full or partial performance under the Order shall constitute acceptance of the Terms. By acceptance of the Order, Seller agrees to be bound by, and to comply with all the Terms, which include any supplements to it, and all specifications and other documents referred to in the Order. Buyer expressly rejects any additional or different terms, conditions or specifications proposed by Seller, whether stated in Seller's form of acknowledgment to the Order or elsewhere, except as expressly agreed to in writing by Buyer. The Terms may be modified only by a written document signed by duly authorized representatives of Buyer and Seller.
2. DELIVERY: Seller shall deliver the Goods on time in accordance with the Order and any late delivery shall constitute Seller’s material breach of the Order. Unless otherwise agreed by both parties in writing, the risk of loss to the Goods shall be borne by Seller before Buyer’s acceptance of Goods in accordance with Section 8 below. Without Buyer’s prior written consent, Seller shall not perform any partial or advance shipment of Goods. If the delivery of Goods is likely to be delayed, Seller shall immediately inform Buyer in writing and change the transportation method upon Buyer’s request and any associated costs and expenses shall be borne by Seller. For any late delivery of Goods, a penalty charge will be imposed on Seller by Buyer at a rate of 0.5% of the total amount of the Order per each delayed day; Buyer shall also be entitled to terminate or cancel the Order in part or in whole without any liability to Seller. Seller shall indemnify and hold Buyer harmless from and against any and all losses and damages resulting from late delivery (including, without limitation, the attorneys’ fee).
3. PRICE: The Order is issued by Buyer based on Seller’s price quotation; unless otherwise agreed by both parties in writing, Seller shall not increase the price or reject the Order. Seller warrants to supply Goods to Buyer at the most favorable prices. If the Goods price is reduced by Seller prior to delivery of Goods, Seller agrees to invoice Buyer at the lowest applicable price. If there is any price discrepancy resulting from any breach of the above, Seller agrees that Buyer may deduct such price discrepancy from any amount payable to Seller and Seller shall make up the deficiency if any. Besides, unless otherwise specified in the Order, the prices of Goods hereof are inclusive of any and all other costs/expenses (including, without limitation, the expenses of transportation, labeling, tariffs, warehousing, insurance, packing, container, etc.).
4. INVOICES: Invoices shall be rendered on completion of services or delivery of Goods and shall contain the purchase Order number, item number, description of Goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must only refer to one purchase order.
5. PAYMENT: Payment shall be made on the terms as set forth in the Order, unless otherwise agreed by both parties in writing, the payment terms shall be 90 days after receipt of a complete and accurate invoice from Seller. Seller’s failure to submit a complete and accurate invoice may result in delay of payment. Buyer may deduct any amount owed to Buyer by Seller under the Order or any other agreement or order between the parties from any amount due to Seller.
6. TAXES: The purchase price set forth in the Order is inclusive of any and all taxes and other government charges, imposed at the time of issuance of the Order or later becoming effective, upon the production, sale, shipment, use of the goods, materials or services specified in the Order, in accordance with applicable tax laws.
6. 稅費: 本訂單所載之價格包含本訂單於簽發時或嗣後有效之任何及所有就生產、銷售、運送、使用本訂單所明訂之產品、材料或服務依相關稅法應繳交之稅款及其他政府規費。
7. PACKAGING: All Goods must be packaged in the manner specified by Buyer and shipped in the manner and by the route and carrier designated by Buyer. If Buyer does not specify the manner in which the Goods must be packaged, Seller shall package the Goods so as to avoid any damage in transit. If Buyer does not specify the manner of shipment, route, or carrier, Seller shall ship the Goods at the lowest possible transportation rates, consistent with Seller's obligation to meet the delivery schedule set forth in the Order.
8. INSPECTION: All delivered Goods shall be inspected under Buyer's product inspection criteria. For all delivered Goods rejected and returned by Buyer, Seller shall, at Buyer's sole option, refund or replace rejected Goods and all the associated costs and expenses shall be borne by Seller in this case. Buyer's payment for the Goods or services shall not constitute its acceptance of the Goods or services. Goods rejected and Goods supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. If any of the Goods or services are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of this Order, then Buyer, at its sole discretion may reject and return such Goods at Seller's expense, require Seller to inspect the Goods and remove nonconforming Goods and/or require Seller to replace nonconforming Goods or services with conforming Goods or services. If Seller fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to Buyer, Buyer may at its option inspect and sort the Goods; Seller shall pay any related costs.
9. WARRANTIES: Seller represents and warrants that: (1) Seller has good and full title to any Goods ordered hereunder. (2) products shall be new, free from defect, conformed to the specifications stated in the PO and in compliance with all associated industry standards. (3) products shall be in full compliance with all applicable laws, rules, orders or regulations, including, without limitation, laws related to safety, health and hygienic, environmental protection, etc. (4) products and/or their packaging will not cause any health and/or safety risk(s), in the event that Seller is aware of said risk(s), or has any reason to believe that products and/or their packaging could present said risk(s), Seller shall notify Buyer in writing immediately. (5) products shall be fit for Buyer’s intended purposes of use and manufacturing. (6) products are packaged and marked appropriately, and also conformed to the descriptions stated on packages. (7) products shall be conformed to the samples or prototypes provided by Seller. (8) products shall not infringe any trademarks, copyrights, patents, trade secrets and other intellectual property rights of others.
10. WARRANTY PERIOD: Unless otherwise agreed by both parties in writing, the warranty period shall be three (3) years starting from the date of Buyer’s acceptance of products in accordance with Section 6. During the warranty period, Seller shall provide warranty services to Buyer free of charge and be liable to all the associated freights; in case of any product defect or non-conformance of product specification, Seller shall perform repair, replacement, or refund upon returns immediately upon Buyer’s demand. Seller agrees to provide out-of-warranty services for the products.
11. INDEMNIFICATION: In the event that Seller breaches or fails to comply with any terms of the Order, Seller shall indemnify and hold Buyer harmless from and against any and all losses and damages resulting from such breach or failure. Seller shall defend, indemnify and hold Buyer harmless from and against any and all claims, legal proceedings, liabilities, losses, damages, costs and expenses, including, without limitation, the attorneys’ fee, in the event of (i) any infringement of copyright, patent, trademark, trade secret or other intellectual property rights of any third party in connection with the products of Seller; or (ii) any violation of applicable laws, regulations, rules or ordinances by Seller or the products of Seller. Buyer shall have the right, at its sole discretion, to offset any payment obligation (including but not limited to penalty or damages amount) from Buyer to Seller against any payment obligation from Seller to Buyer.
11. 賣方違反本或未能遵守訂單任一規定時，應賠償買方因此所受之一切損失。買方如因賣方產品涉及侵害著作權、專利、商標、商業秘密或與賣方產品相關的任何第三方的其他智慧財產權、賣方或賣方產品違反適用的法律，法規時，賣方應對任何及所有的索賠、法律訴訟、債務、損失、損害、成本及費用（包括但不限於律師費）立即出面負責解決，並應賠償買方因此所受之一切損失(包括但不限於律師費) 並使買方免受任何損害。賣方應給付予買方之款項，包括但不限於違約金及損害賠償等，買方有權逕自本訂單之價款扣抵之。
12. RESTRICTED SUBSTANCES: Seller’s Goods, materials and processes shall comply with any and all governmental and safety constraints on restricted, toxic and hazardous substances.
13. CHANGES: Buyer shall be entitled to change any part of the Order in writing before delivery of products, including, without limitation, the products’ drawings, designs, specifications, materials, packaging, time and place of delivery, and transportation methods. The said change shall be deemed to be accepted by Seller if written objection is not sent to Buyer by Seller within five (5) business days upon its receipt of Buyer’s notification.
14. COMPLIANCE WITH LAWS: Seller represents and warrants that it is in compliance with and all Goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all applicable laws or ordinances and all related lawful order.
15. CERTIFICATION: Seller shall comply with any and all applicable Buyer quality and other procedures and shall be held responsible for having appropriate systems, processes and documentation in place to ensure compliance to the current standard.
16. CONFIDENTIALITY AND PROPRIETARY INFORMATION: Any and all data, drawings, patterns, designs, specifications and other technical or proprietary information of Buyer (collectively, "proprietary information") directly or indirectly furnished to Seller in writing or otherwise and relating to the Goods or the Order shall remain the property of Buyer, shall in no event become the property of Seller and shall be used only in fulfilling the obligations imposed by this purchase order. Seller shall consider all such proprietary information to be confidential and shall not duplicate or disclose it to others, except as required by law. The provision by Buyer to Seller of any proprietary information shall not be construed as, and in no event shall constitute, a grant or transfer of any express or implied rights, title or interest in, to or under any of Buyer’s proprietary information. Any confidential information of Seller disclosed to Buyer in connection with this purchase order shall be clearly marked or otherwise identified as such at the time of disclosure, and Buyer shall not duplicate or disclose any such confidential information to others, except as required by law or agreed to in writing by Seller.
17. WORK ON BUYER'S PREMISES: If Seller's work under this Order requires Seller to be on the premises of Buyer or at Buyer’s direction, Seller will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of Buyer.
18. INSURANCE: Seller will maintain insurance policies with such coverage and in such minimum amounts as may be reasonably requested by Buyer or (to the extent directed by Buyer) Buyer’s customers, in each case naming Buyer and its affiliates and Customers as “additional insured” as requested by Buyer.
19. BUYER’S PROPERTY: Any and all molds, tools, dies, jigs, fixtures or similar items ordered herein or delivered to Seller by Buyer shall become and remain the property of Buyer, shall be used in the manufacture of articles for Buyer exclusively. Such property, and whenever practical, each individual item thereof, shall be plainly marked as Buyer’s property. While Buyer’s property is in possession of Seller and until Seller delivers Buyer’s property to Buyer, Seller bears any and all risk of loss and damage thereto. Seller will be responsible for the cost of repairing or replacing Buyer’s property if damaged or destroyed regardless of cause or fault. Any special tooling, the full cost or a substantial portion of the cost of which is included in the price of this Order, shall constitute the property of Buyer and shall be returned to Buyer, or otherwise disposed of at Buyer’s request, at Seller’s expense upon completion of this Order.
20. TERMINATION AND CANCELLATION: Unless otherwise agreed by both parties in writing, Buyer may cancel or terminate this PO in part or in whole prior to the delivery date without any liability to Seller. In the event of any default or breach of PO by Seller, Buyer shall be entitled to cancel or terminate this PO in part or in whole without any liability to Seller.
21. ASSIGNMENT AND SUBCONTRACTING: Seller shall not assign or subcontract, in whole or in part, its rights or obligations under this Terms and Order without the prior written consent of Buyer.
22. DELIVERY SCHEDULE: Unless otherwise agreed in writing, Seller will not make production arrangements in excess of the amount or in advance of the time necessary to meet Buyer's delivery schedule. Goods shipped to Buyer in advance of schedule may be returned to Seller at Seller's expense.
23. FORCE MAJEURE: Neither party will be responsible for delays resulting from causes beyond the reasonable control of such party, including without limitation fire, explosion, flood, war, strike, or riot, provided that the nonperforming party uses commercially reasonable efforts to avoid or remove such causes of nonperformance and continues performance under this Terms and Order with reasonable dispatch whenever such causes are removed.
24. PUBLICITY: Seller may not use the names of Buyer, its affiliates or its products or any signs, markings or symbols from which a connection to Buyer may, in Buyer’s sole judgment, be reasonably inferred or implied, in any manner whatsoever without Buyer’s prior written consent, which may be withheld in Buyer’s sole discretion.
25. DOCUMENTATION: It is agreed that all technical documentation and other literature necessary for the proper use of the Goods or services will be provided to Buyer with the Goods or services, unless otherwise directed by Buyer, and there will be no additional charge.
26. GOVERNING LAW, VENUE: The Order and the Terms shall be governed by the laws of the Republic of China (Taiwan), without regard to its conflicts of laws principles. All claims, disputes, lawsuits or actions relating to the Order or the Terms must be brought and heard in a court of competent jurisdiction located in the Republic of China (Taiwan).
27. SURVIVAL: Seller’s obligations under Sections 2, 8, 9, 10, 11, 14, 16, 18, 19, and 26 will survive any termination of this Order.
27. 繼續有效：賣方第2, 8, 9, 10, 11, 14, 16, 18, 19及26條的義務，將在本訂單終止後繼續有效存在。
28. WAIVER; MODIFICATION: Either party's failure to insist upon full performance of any of the terms, conditions or specifications hereof or to exercise any rights or remedies hereunder shall not thereafter be deemed a waiver of the same or of any other provisions or privileges hereunder. This Order can be modified or rescinded only by a writing signed by authorized representatives from both parties.
29. SEVERABILITY: If any provision of this Order shall be held to be illegal or unenforceable, this provision shall not affect any other provisions contained in this Order.
30. ENTIRE AGREEMENT: Except as set forth in Section 1 of the Terms and Order, the Terms and Order constitutes the entire agreement with respect to the subject matter hereof between Seller and Buyer. Without Buyer’s prior written consent, any modification to the Terms and Order by Seller shall be void and null.