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XIN POINT CORPORATION

GENERAL PURCHASING CONDITIONS

Effective on: 1 January 2017

 

1. SCOPE OF APPLICATION

1.1 These general purchasing conditions (hereinafter referred as “GPC”) are applicable to allpurchase orders/purchase contracts/orders (hereinafter, in general, referred as “Order(s)”) fromXin Point Corporation, its subsidiaries and management units (hereinafter collectively referredas “our Company”) notably to purchase/lease/acquire from suppliers and/or providers thereof(hereinafter, in general, referred as “Supplier(s)”), goods (hereinafter referred as “Product(s)”) orservices (hereinafter referred as “Service(s)”) (such Products and Services are hereinafter,collectively, referred as “Supply(ies)”).

1.2 These GPC are applicable as of the date of acceptance of the Order under the conditions setforth in Clause 3 below, in full and as the sole and exclusive agreements between the Supplier andour Company. The supplier agrees to waive all of his own general conditions of sale.

 

2. CONTRACTUAL DOCUMENTS

2.1 All Orders from our Company shall be governed exclusively by the GPC herein, the specialconditions (hereinafter referred as “SC”) and all other contractual documents (hereinafter referredas “OCD”) defined in the Orders.

2.2 In the event of a discrepancy between the various documents, the order of priority shall be: (1)the SC, (2) the GPC and (3) the OCD.

2.3 The GPC, SC and OCD contain the entire agreements between the parties and supersede allprevious agreements and understandings between them whether written or oral and whetherexplicitly or implied.

 

3. ORDER

3.1 ORDER FORM

3.1.1 All Orders from our Company are made pursuant to a written purchase order (hereinafterreferred as “Order Form(s)”).

3.1.2 No Order shall be considered as effective unless it has been accepted in the conditionsdescribed in following sub-clauses.

3.2 ACCEPTANCE OF THE ORDER

3.2.1 Acknowledgment of acceptance of the Order shall consist of the Order Form duly signed bythe Supplier and sent to our Company by letter, email or fax, within 3 working days from the dateset out in the Order Form (hereinafter rferred as “Acknowledgment of Receipt”).

3.2.2 Any Order may be withdrawn with immediate effect by our Company upon written notice tothe Supplier without giving rise to damages or any indemnity obligation of our Company of anykind whatsoever, unless such Order is, prior to our Company’s withdrawal of the same, whollyaccepted by the Supplier as prescribed.

3.2.3 Any Order with respect to which our Company has not received an Acknowledgment ofReceipt and that has not been withdrawn by our Company in accordance with the provisions ofthe above paragraph, but which has been fulfilled in full or in part by the Supplier shall bedeemed to have been accepted in full by the Supplier.

3.3 MODIFICATION OF THE ORDER
Any modification, even minor, of the Order shall be subject to prior written confirmation by our Company.

 

4. BLANKET ORDERS

4.1 Certain Supplies may be subject to a blanket order (hereinafter referred as “BlanketOrder(s)” ) that describes at least the names and models of the Supplies, specifications, the prices and volumes, the place of delivery and any other applicable conditions. Such Blanket Order requires an acceptance as described in Clause 3 above. Its execution requires delivery instructions from our Company (hereinafter referred as “Delivery Instructions”).

4.2 The volumes given in a Blanket Order may only have approximate quantities and shall not constitute a commitment by our Company.

4.3 The delivery dates and the actual volumes to be delivered shall be given in the Delivery Instructions in accordance with the SC.

4.4 In these GPC, the term “Order” includes the concept of “Blanket Order” as well as all other purchase orders.

 

5. PACKING AND DELIVERY DOCUMENTS

5.1 PACKING

5.1.1 Nature

  The packaging shall comply with the specifications defined in the SC and/or OCD.

5.1.2 Instructions

  All packaging must bear on the exterior, legibly printed, the following and other information required by applicable law:

  Description of the Supplies;

  Quantity delivered or the gross or net weight;

  Clear delivery and storage conditions; and

  All other instructions prescribed by the SC and/or OCD.

5.1.3 Delivery documents

The Supplier shall attach Delivery Note to the delivered Supplies, indicating Order date, Order number, names, models, quantities and packing details of the Supplies, etc.

6. DELIVERY, EXECUTION AND DELAYS

6.1 Unless otherwise agreed in the SC, the Supplier shall set up and maintain for every Blanket Order an inventory plan.

6.2 Unless otherwise agreed in the SC, the delivery and/or execution periods shall be established in the Order Form. The Supplier must immediately notify our Company of any incident that may jeopardize adherence to such delivery and/or execution periods.

6.3 In the event of late deliveries, and without prejudice to the right of our Company to terminate all or part of the Order and/or to claim damages, the Supplier shall pay a late fee. Unless otherwise agreed in the SC, the late fee shall be calculated as follows: 0.1% per started late working day to which such delivery relates with a maximum aggregate late fee of 10% of the total amount of the Order. Our Company reserves the right to charge the Supplier for all other costs resulting from delays in deliveries (including, without limitation, assembly line shortage of our customer(s) and/or our Company, late penalties, etc.).

6.4 Without the written consent of our Company, the Supplier shall not deliver or require acceptance of Supplies before the agreed delivery date. The Supplier shall bear all direct and/or indirect costs arising from any such early delivery.

 

7. ACCEPTANCE

7.1 ACCEPTANCE OF PRODUCTS

7.1.1 Inspection of Products before delivery: our Company reserves the right to carry out, with prior notice, inspections of Products before they are delivered, at the Supplier’s premises and during normal business hours. Such inspection shall not affect in any way the warranties granted by the Supplier.

7.1.2 Rejection: our Company reserves the right to reject, by letter, email or fax, delivery of Products in the cases of non-compliance of the Products with the Order or with the delivery conditions defined in the Order. The same applies for excessive deliveries.

7.1.3 Our Company will do its best efforts to inform the Supplier of any apparent defects immediately after such defects should be detected within the normal operational process.Consequently the Supplier agrees to waive the exception of late claim.

7.1.4 Failure by our Company to assert any claims at the time of delivery, acceptance of a delivery without written condition, or payment for any Products, shall not constitute an acceptance of the Products delivered nor of the amount billed and/or paid, and shall not, under any circumstances, be deemed a waiver by our Company of any subsequent claim.

7.1.5 No payment shall be borne by our Company for any Products that are refused. Our Company may set off the amount of the refused Products against any invoices of the Supplier or the Supplier shall immediately reimburse such amount to our Company on demand.

7.1.6 Within 7 working days from the date of the refusal notification by our Company, theSupplier should take back the refused Products at its own cost and risk. After this 7 working days period, it is expressly agreed by both parties that our Company may, without any liability of any kind whatsoever, either destroy or return the refused Products to the Supplier, at the Supplier’ssole cost and risk.

7.2 ACCE PTANCE OF SERVICES

7.2.1 Inspection of Service before acceptance: our Company reserves the right to carry out anyinspection of Services offered prior to acceptance, at the Supplier’s premises with prior notice and during normal business hours. Such inspection shall not affect in any way the warranties granted by the Supplier.

7.2.2 Acceptance: Unless otherwise stipulated in the SC, all deliveries shall be made upon complete performance of the Services ordered on the date set out in the Order.

7.2.3 Our Company reserves the right to refuse the Services in the following cases by simple letter, email or fax:
  
   Non-compliance of the Services with the Order; or
 
   Non-compliance with the timetable for the  performance of the Services.

7.2.4 The Supplier may not invoice Services that are refused.

7.2.5 Failure to assert any claims at the time of provision of Services, acceptance of Services without written condition, or payment for any Services shall not constitute acceptance of the Services performed nor agreement on the amount billed and/or paid, and shall not, under any circumstances, be deemed a waiver by our Company of any subsequent claim.

 

8. PRICE AND PAYMENT CONDITIONS

8.1 All prices for upplies (“Prices”) shall be clearly set forth in the Order Form. Unlesso therwise agreed in the SC, Prices for Supplies are deemed to be “CIP - Carriage and Insurance Paid" to the agreed place of delivery, VAT included.

8.2 No price increase may be applied without the prior written consent from our Company.

8.3 Unless otherwise agreed in the SC, all purchases by Company are payable within 60 days from the end of the month in which invoices are received.

 

9. GUARANTEE

9.1 The Supplier retains full liability for its technical decisions, regardless of the degree of assistance that our Company may have provided during the performance of the Order.

9.2 GUARANTEE FOR THE PRODUCTS

9.2.1 Content of the guarantee:

9.2.1a The Supplier, as a specialist in its field, represents and guarantees to our Company that the delivered Products shall be:
   
     Merchantable, and of good material and workmanship;
   
     Fit for the particular purpose for which they are intended, within the normal conditions of use specified by the Supplier, and shall offer the safety  that can be reasonably expected of them, subject to such use of the Products as shall have been indicated by our Company to the Supplier at the time of placement of the Order;

    In conformity with all drawings, specifications and all definition documents of the ordered Product;
    With respect to non-specified characteristics, in conformity with the initial samples (“IS”) received by our Company; and
   
    Free of all visible or latent defects, as well as all design, manufacturing or operational defects.

9.2.1b Acceptance by our Company of the IS shall not discharge the Supplier of its responsibility and shall not constitute acceptance of the Products delivered and/or subsequently delivered.

9.2.2 Scope of the guarantee

9.2.2a Without prejudice to our Company’s right to terminate the Order and/or to assert any claim, and in addition to all legal warranties, the Supplier grants to our Company a contractual guarantee.

9.2.2b Pursuant thereto the Supplier is bound by a performance obligation and shall take responsibility notably for:

    Reimbursement to our Company for all the costs directly or indirectly incurred by ourCompany in connection with any defective Products; and
   
    All direct and/or indirect consequential damages that are incurred directly by our Company, whether damage to persons or properties, as well as consequential damages caused to third parties, as well as their respective employees and/or properties.

9.2.2c This guarantee is granted for the duration of 12 months as from the delivery date.

9.3 GUARANTEE FOR THE SERVICES

9.3.1 Content of the guarantee:

9.3.1a The Supplier, as a specialist in its field, represents and guarantees to our Company that the Services performed shall be:
    In conformity with the Order; and
    Free from any visible or latent defect.

9.3.1b The receipt of the Services by our Company shall not constitute acceptance of the said Services, and shall not discharge the Supplier from its responsibility for any hidden defects, whenever such faulty Service may be discovered.

9.3.2 Scope of the guarantee

9.3.2a Without prejudice to our Company’s right to terminate the Order and/or to assert any claim, and in addition to all legal warranties, the Supplier grants to our Company a contractual guarantee.

9.3.2b Pursuant thereto, the Supplier is bound by a performance obligation and shall take responsibility notably for:

    Reimbursement for, or additional Service so that the defects are remedied;
    Performance of all services necessary to compensate for the damages caused by the defective Service; and
    All direct and indirect consequential damages that are incurred directly by our Company, whether damage to persons or properties, as well as consequential damages caused to third parties, as well as their respective employees and/or properties.

9.3.2c This guarantee is granted for the duration of 12 months as from the service acceptance date.

9.4 Non-performance of the guarantee by the Supplier

    Where the Supplier is unable to perform this guarantee correctly within a reasonable delaydepending on the circumstances, our Company reserves the right, depending on the case, to buy
the Products and/or to arrange for the performance of any Services itself or from another Supplier, all at the cost of the defaulting Supplier. This is without prejudice to our Company’s right to terminate the Order and/or to assert any claim, and in addition to all legal warranties.

 

10. QUALITY ASSURANCE

    Supplier’s acceptance of an Order shall mean the Supplier’s acceptance of the Quality System of our Company and agreement to strict observance of the terms thereof.

 

11. ORIGIN OF PRODUCTS

    The Supplier undertakes to comply with the regulations of the conflict minerals and does not usethe conflict minerals. Upon the request by our Company, the Supplier shall provide a certificate to prove the origin of the Product. The Products provided by the Supplier shall meet the requirements of the regulations of our country and the country of use, including but not limited to RoHS, REACH and ELV orders, etc. The Supplier should provide statement, test report and other relevant certification documents with respect to controlled substances upon request.

 

12. INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS

12.1 The Supplier undertakes to assign to our Company the results of Services of all kinds (and specifically research or design of prototypes, products, tools or specific equipment) arising from performance of the Order and that can be protected by intellectual and/or industrial property rights or otherwise, which shall be the exclusive property of our Company.

12.2 The Supplier acknowledges and agrees that the price referred to in the Order includes remuneration for the transfer of the above-mentioned rights and their delivery to our Company.

12.3 The Supplier transfers to our Company all the copyright relating to the results of these Services and specifically the rights of representation and reproduction, in any form and in any manner whatsoever, current or future, the rights of use, distribution, marketing, translation, modification, incorporation, combination, utilization and adaptation of the said results, for the exploitation of these rights throughout their duration, in the whole world, without limitation of extent or purpose.

12.4 The Supplier agrees not to assert any claim with respect to any technical information that Supplier shall have disclosed or may hereafter disclose to our Company in connection with any Supplies furnished to our Company.

12.5 The Supplier shall not use, for the purposes of filling any Order, Intellectual and/or Industrial Property Rights that belong to a third party without the prior written consent of such third party. Any fees, royalties or other payments that may be payable in connection with such utilization shall be borne exclusively by the Supplier.

12.6 The Supplier shall indemnify, defend and hold harmless our Company from and against any legal or out-of-court claims made against our Company at any place whatsoever by third parties, based on Intellectual and/or Industrial Property or Patent Rights relating to the Supplier’s fulfillment of any Order. Our Company shall immediately advise the Supplier of any such third-party claims. In the event of any lawsuit, arbitration or other proceeding instituted against our Company, whether substantiated or not, the Supplier undertakes, by virtue of the above-mentioned guarantee, at the choice of our Company, either to collaborate with and actively assist our Company during proceedings, or to immediately participate voluntarily in proceedings and assure the supervision of the proceedings. In the event of out-of-court claims, whether substantiated or not, the Supplier undertakes to take all necessary measures to resolve the dispute with the third party, while keeping our Company informed.

12.7 If our Company must cease using all or part of the Supply then, without prejudice to the right of our Company to withdraw the Order, the Supplier shall immediately do one of the following, at its sole and exclusive cost: (i) obtain the right for our Company to continue to use the Supply, or (ii) modify or replace the Supply so that the rights to use the Supply cannot be disputed. It is stipulated that the Supplier shall ensure, at its own expense, the recovery of any items of Supplies to which all Intellectual Property Rights have not been granted that have been delivered to our Company. In all cases such modifications and/or replacements shall comply in every respect with the contractual documents of the Order.

12.8 In the event of any legal proceedings or out-of-court claims, all sums that our Company has to pay for any reason whatsoever, including, without limitation, any costs, fees, damages and interest shall be fully reimbursed by the Supplier to our Company upon request. The Supplier shall compensate our Company for all direct and indirect damages arising from any claims that may be brought against our Company by a third party.

 

13. CONFIDENTIALITY

13.1 The Supplier agrees to keep secret all Confidential Information (as hereinafter defined) and will take all steps that may be necessary to maintain the secrecy of the Confidential Information. The term “Confidential Information” shall mean all information disclosed to the Supplier or otherwise acquired by the Supplier in connection with the performance of its obligations under any Order, concerning or relating in any way to the technical or commercial documents, specifications, formulas, drawings, plans, know-how, data, tools or samples, as well as the outcomes that result there from, markets, customers, products, procedures, plans, operating experience, marketing strategies, organization, employees, financial conditions or plans or business of our Company, its subsidiaries or affiliates. This confidentiality obligation shall be binding on the Supplier, its employees, agents, representatives, suppliers or sub-contractors. This Confidential Information is and at all times shall remain the property of our Company.

13.2 This obligation of confidentiality shall be maintained throughout the execution of the Order and for a period of 2 years thereafter.

13.3 Upon termination or completion of any Order, the Supplier shall immediately cease to use the Confidential Information and shall return to the Company all documents and copies in its possession or control which in any way embody or evidence the Confidential Information.

13.4 Except with the prior written consent of our Company, in no event and in no form whatsoever shall the Orders give rise to direct or indirect advertising.

13.5 Any document, product, drawing, study, information, specification, calculation, etc. entrusted by our Company to the Supplier, for the purpose of execution of the Order, is and remains our exclusive property and must be identified as such. The Supplier, in its fiduciary capacity, shall ensure their confidentiality, protection, and return them to our Company at the completion of the Order.

 

14. TRANSFER OF PROPERTY AND RISK

14.1 Unless otherwise agreed in the SC, the transfer of title to the Supplies takes place upon acceptance of the Order by the Supplier.

14.2 All risk of loss relating to the Supplies shall remain with the Supplier until actual delivery of the Supplies to our Company, or acceptance of the Services by our Company.

14.3 No “reservation of title” clause requested by the Supplier may be invoked or raised against our Company unless has been expressly accepted in writing by our Company.

14.4 The Supplier undertakes not to stipulate any reservation of title clause in favor of its own suppliers of goods that are to be integrated in the Products sold to our Company in accordance with the Order.

14.5 In the event of termination or end of the Order, the Supplier undertakes, upon request from our Company, to transfer to our Company the outstanding inventory of raw materials and/or semi-finished and/or finished products and/or the security stock, that it uses to complete the Order and that it holds on the date of termination or end.

 

15. EQUIPMENT

15.1 The samples and models, gauges, molds and equipment (the “Equipment”) ordered by our Company for the fulfillment of the Orders, shall become the property of our Company under the terms set forth in the SC, together with all Industrial and/or Intellectual Property Rights relating to such Equipment.

15.2 Any Equipment that our Company makes available to the Supplier for performance of an Order:
 
    is and shall remain exclusively the property of its owner; and
    such Equipment may be removed by our Company at any time.

15.3 The Supplier shall identify the Equipment with a prominent and non-removable plaque or label containing the name of the owner given by our Company.

15.4 The maintenance of such Equipment and the preventative curative adjustments that are necessary for their proper functioning shall be the responsibility of the Supplier, and must not give rise to disruption of supplies.

15.5 The Equipment shall not be modified without the express prior written consent of our Company.

15.6 The care of and risk to the Equipment shall be assumed by the Supplier.

15.7 The Equipment must be the subject of a custody or lease agreement between the Supplier and our Company.

15.8 The Supplier shall insure such Equipment, at Supplier’s expense, at the replacement value as new of such Equipment:
  
    against all risks of destruction and/or loss and/or damages and/or theft. It being acknowledged that their owner must be mentioned as additional insured parties in the policy; and
   
    against all damages that such Company Property may cause.

15.9 The Supplier shall waive, for itself and its insurer any right to subrogation it may have in favor of the owner of the Equipment, our Company and our Company’s insurer.

15.10 Upon request of our Company, the Supplier shall provide a certificate of insurance, showing such coverage described herein, as well as evidence of Supplier’s payment of all premiums.

15.11 The existence of such insurance coverage shall not constitute a limit to the liability of the Supplier.

15.12 All proceeds payable under such insurance shall be for the exclusive benefit of the owner of the Equipment, as beneficiary.

15.13 Our Company shall at no time be liable for hidden defects, unknown to our Company, that may affect the Company Property and render it unsuitable for its purpose.

 

16. INSURANCE

16.1 The Supplier shall maintain, from a financially sound and reputable insurance carrier:

      an all-risk liability insurance policy; and
    
      a Products Liability insurance policy.

     Each case with coverage in a minimum amount of RMB one million (RMB1,000,000.-) peroccurrence, with respect to any bodily injury, property damages, or any tangible and/or intangible damage(s), consequential or otherwise, directly or indirectly caused to the clients of our Company to our Company or a third party by reason of its defective Supplies, or infringement of any Intellectual Property, directly or indirectly caused to: (i) our Company; (ii) our Company’s customers; or (iii) any third party by reason of the Supplier’s defective Supplies.

16.2 Such insurance policy shall include an option covering the costs of any recall campaigns that may be undertaken by third parties (our Company and/or by its customers) and/or the Supplier. Such insurance policy shall contain a waiver of subrogation in favor of our Company and/or itsinsurers.

16.3 Upon request of our Company, the Supplier shall provide a certificate of insurance, showingsuch coverage described herein, as well as evidence of Supplier’s payment of all premiums.

16.4 The existence of such insurance coverage shall not release Supplier from its obligations under these GPC, nor shall it constitute a limit to the liability of the Supplier.

16.5 The insurer of the Supplier shall inform our Company of any termination of the Supplier’s insurance contract, for any reason, within the period notice.

 

17. TERMINATION

17.1 Termination for convenience: Unless otherwise stipulated in the SC, it is expressly agreed that our Company has the right to terminate any Order, in whole or in part, without any cause, without giving rise to any indemnity or damages of any kind whatsoever to our Company, by sending the notice of the same to the Supplier.

17.2 Termination with cause: Unless otherwise stipulated in the SC, and without prejudice to the right of our Company to claim for damages, it is expressly agreed that our Company has the right to terminate, in whole or in part, any Order in the event of partial or total non-performance by the Supplier of any of its obligations under the Order, even after being given 15 days to remedy. Such termination shall occur by sending notice of the same to the Supplier, with immediate effect.

 

18. JURISDICTION – APPLICABLE LAW

18.1 The Supplier and our Company shall attempt to resolve, on an amicable basis, any dispute relating to the interpretation or execution of the Order.

18.2 In case no settlement can be reached through negotiation, unless otherwise stipulated in the SC, the dispute shall then be submitted to China International Economic Trade Arbitration Commission South China of Chambers of Commerce. The governing law shall be the law applicable to the place of registration of the registered offices of our Company. The arbitration court shall consist of one arbitrator, the seat of the arbitration shall be in Shenzhen China and the language of the proceedings shall in Chinese. The award rendered by the said commission shall be final and binding upon both parties. Arbitration fee shall be borne by the losing party.

 

19. MISCELLANEOUS

19.1 MANUFACTURING CONFERRED TO A THIRD PARTY AND ASSIGNMENT TO THIRD PARTIES

19.1.1 The Supplier shall not sub-contract its obligations without the prior written consent of our Company. In the event of authorized sub-contracting, the original Supplier shall remain solely liable to our Company.

19.1.2 Supplier shall not assign its rights or delegate its duties, in whole or in part, with respect to any Order, whether free of charge or for consideration, without the prior written consent of our
Company.

19.1.3 Supplier shall inform our Company of any sale of voting securities, assets or change of control. In such cases our Company shall have the right to terminate all or part of the Order without prior notice.

19.2 DUTY TO INFORM
  
    The Supplier shall provide our Company with all information and advice that is indispensable to the storage of any Supply, the integration of any Supply into any other Product, and to its usage. It is therefore required to ascertain that the specifications are sufficient and pertinent in this regard, to inform our Company of any non-compliance of the specifications with the regulations in force in the country of sale given in the specifications, to propose to our Company any modification that could improve the quality or cost of the Supply, and to inform our Company of the risk of poor quality or non-satisfaction of our Company’s requirement that the Supply might present.

19.3 PROGRESS UNDERTAKING - IMPROVEMENTS

    The Supplier shall use its best efforts to devise improvements to the technical definition of the Supply as well as of its industrial process, and shall use its best efforts to seek to reduce the
manufacturing cost and to improve the quality, including in terms of durability of the Supply. Any improvement must receive prior approval of our Company before it is implemented.

19.4 SEVERABILITY

    Should any provision of the Order be, for any reason whatsoever, invalid or unenforceable, the remaining provisions shall not be affected by this invalid or unenforceable provision. Therefore the parties undertake to renegotiate the said invalid or unenforceable provision in order to restate the said provision as nearly as possible with the original intention of the parties in accordance with the governing laws.

19.5 AMENDMENTS
  
    Any amendments to an agreement between the parties must be in writing and shall only be valid with the express approval of both parties. The foregoing also applies to a waiver of this clause.

19.6 CODE OF ETHICS

    Supplier’s acceptance of an Order shall mean the Supplier’s acceptance of the Ethical, Safety, Health, Environmental and Social Systems of our Company and agreement to strict observance of the terms  thereof.

 

20. LANGUAGE

     This GPC is written in both Chinese and English. In case of discrepancies between the twolanguage versions, the Chinese version shall prevail.
     
                                         
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