AGREEMENT OF MANUFACTURE OF PRODUCTS WHEREAS:鉴于 (A) The Company and Manufacturer wish to enter into an agreement for a business collaboration as well as the manufacture and supply of the Products (as defined below). 公司与制造商希望就商务AGREEMENT OF MANUFACTURE OF PRODUCTS
(A) The Company and Manufacturer wish to enter into an agreement for a business collaboration as well as the manufacture and supply of the Products (as defined below).
NOW IT IS HEREBY AGREED as follows:现达成协议如下：
1.1 In this Agreement the following terms shall have the following meanings unless the context otherwise requires:
“Affiliates” means, in relation to any person, any other person which, directly or indirectly, controls or is controlled by or is under common control with such person and for the purposes of this definition “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Copyright” means all copyright and rights in the nature of copyright to which either party may now be or may subsequently become entitled in or in respect of all drawings and other documents, recordings in any form and all other materials bearing or embodying any part of the Technical Information, including without limitation any such materials consisting of or containing software or databases.
“Improvements” means all improvements, modifications or adaptations to any part of the Technical Information which might reasonably be of commercial interest to either party in the design manufacture or supply of the Products or in the operation of the process and which may be made or acquired by either party during the term of this Agreement.
“Intellectual Property Rights” means all patents, registered designs, utility models, design rights, copyrights (including copyright in computer software and databases), database rights, semi-conductor topography rights, inventions, confidential information, know-how and all other intellectual and industrial property and rights of a similar or corresponding nature in any part of the world, whether registered or not or capable of registration or not, together with all applications for, and the right to sue for infringements of, any of the foregoing rights.
“Know-How” means the Company’s and/or its Affiliates’ knowledge, experience and technical information relating to the manufacture, sale and use of the Products and the benefit thereof to be provided pursuant to this Agreement.
“Product IPR” means any and all Intellectual Property Rights subsisting in the Products which are beneficially owned by the Company and/or its Affiliates, including without limitation the Copyright and the rights of confidence in the Technical Information.
“Products” means the products to be manufactured by the Manufacturer in accordance with the specifications provided by the Company and/or any products that may be agreed from time to time by the parties herein.
“Technical Information” means all identifiable Know-How, experience, data and all other technical or commercial information relating to the Products or the process whether in human or machine readable form and whether stored electronically or otherwise and which might reasonably be of commercial interest to either party in the design, manufacture or supply of the Products or in the operation of the process, including but not limited to:
(a) details of manufacturing operation procedures with specifications of detailed processes;
(b) complete specifications of materials and components used in manufacture;
(c) detailed designs of all tooling jigs and fixtures used in manufacture;
(d) drawings, specifications and engineering data; 图纸、说明书和工程数据；
(e) test and quality control procedures and data; 测试和质量控制程序和数据；
(f) a detailed listing of all machines used in the manufacture and testing of the Products with the names and addresses of the suppliers of those machines and of parts for them;
(g) copies of all current commercial publications issued; and
(h) information on Product packaging.产品包装信息。
1.2 In this Agreement unless the context otherwise requires:
1.2.1 the contents table and headings are for convenience only, have no legal effect and shall not affect its construction;
1.2.2 words in the singular shall include the plural and vice versa; words importing a gender include every gender and references to persons include corporations, partnerships and other incorporated associations or bodies of persons;
1.2.3 the Schedules to this Agreement shall form part of this Agreement as if set out in the main body of this Agreement. In the event of any conflict between the provisions of the main body of this Agreement and the provisions of the Schedules the former shall prevail;
1.2.4 any reference in this Agreement to any enactment or statutory provision or subordinate legislation shall be construed as a reference to it as from time to time replaced, amended, consolidated or re-enacted (with or without modification) and includes all orders or instruments made under such enactment PROVIDED THAT this clause 1.2.4 shall not subject any party to a greater burden than that which would apply at the date of this Agreement;
1.2.5 references to a clause or a Schedule are to a clause of or a Schedule to this Agreement; 对某一条款或附件的指引是指本协议的条款或附件；
1.2.6 references to “include” or “including” are to be construed without limitation.
2 Independent Contractor 独立承包商
The parties herein shall be independent parties to this Agreement and nothing in this Agreement shall constitute any of the parties herein or any of their respective employees, an agent or representative or as otherwise associated with or representing the other for any purpose whatsoever and neither the Manufacturer nor any of its employees, agents, contractors or sub-contractors shall have any authority or power to bind the Company or to pledge its credit.
3 Scope of Appointment 委托范围
3.1 The Company appoints the Manufacturer and the Manufacturer accepts the appointment to manufacture, package, store, promote and supply the Products exclusively for the Company; and agrees to collaborate with the Manufacturer to jointly develop new customers in relation to the Products and manufacture, package, store, promote and supply the Products either to the customers directly or to the Company who will in turn supply the Products to the customers;
in accordance with the terms and conditions of this Agreement. 遵守本协议规定。
4.1 Technical Assistance 技术支持
4.11.1 The Company hereby agrees to grant technical assistance to the Manufacturer to manufacture and develop the Products; and for the Manufacturer to use, sell or otherwise deal with the Products manufactured under clause 4.1.1.
4.21.2 The Company shall at the cost and expense of the Manufacturer during the continuance of this Agreement within seven (7) days of receipt of a written request from the Manufacturer or such other period as the parties herein may agree upon, send engineers or other proficient employees of the Company and/or its Affiliates who are in a position to grant technical assistance to meet with representatives of the Manufacturer and to visit the plant of the Manufacturer for the purpose of giving technical assistance and advice in connection with the manufacture and development of the Products; but in no event shall the Company be obliged to provide more than two employees for that purpose at any one time.
5. Net Profit Margin or Commission 净盈利率或佣金
5.1 Where the Manufacturer is appointed pursuant to Clause 3.1.1 herein, the net profit margin shall be subject to negotiations by the parties herein taking into account the costing of the Manufacturer for the various Products as shown in Annexure 1.
5.2 Where the Manufacturer is appointed pursuant to Clause 3.1.2 herein, the Company shall be entitled to a commission of at least ten percent (10%) of the selling price of the Products to the said customers. However, this said commission shall be subject to negotiations (if any) by the parties herein as well as between the Company and its customers.
6. Payment Terms 付款方式
6. 1 Both parties agree that for the Products produced by the Manufacturer pursuant to Clause 3.1.1 herein, any payment to be made by the Company to the Manufacturer shall be paid within sixty (60) days from the date of receipt of the Products by the Company or by the Company’s customers, as the case may be in a currency to be agreed upon in writing by the parties herein. Any other charges whatsoever including but not limited to any taxes and bank charges incurred, when payment is made to the Company by the Manufacturer shall be borne by the Manufacturer.
6.2 Both parties agree that for the Products produced by the Manufacturer pursuant to Clause 3.1.2 herein, any payment for the commission to be made by the Manufacturer to the Company shall be paid by the Manufacturer within 7 days from the expiry of the agreed payment period the Manufacturer has with the said customers, in a currency to be agreed upon in writing by the parties herein.
6.3 Books and Records. The Manufacturer shall keep detailed and accurate account of the volume, sales prices and gross profit margin of the Products for which a commission is payable hereunder. The Company, its accountants, agents and representatives shall be entitled during the term of this Agreement and within (1) year after expiration or termination of this Agreement to examine the books of account of the Manufacturer during any business days of the Manufacturer upon not less than 14 business days’ prior notice. If any examination by the Company shows there is a deficiency in the payment of commissions, the deficiency shall become immediately due and payable. All other expenditure claims and development cost will be payable to the Company within one week upon receipt of billing from the Company.
账簿记录。 制造商应详细准确记录产品的数量、售价和毛利总额以确定按照本协议应支付的佣金。在本协议期间内和本协议届满或终止后一年内，公司及其会计师、代理人和代表有权查验制造商在任何一个营业日的帐簿 ，但应至少提前14个工作日发出通知。如经公司检查，发现佣金的支付有不足，该支付不足部分应立即支付。所有其他费用请求和研发成本都应在收到公司账单后一周内支付给公司。
7 Expenses 费用
Any expenses whatsoever including but not limited to flight and hotel accommodation expenses that will be incurred by the Company, its servants, its employees and/or agents in providing technical assistance and/or for the manufacture, packaging, storing, promotion, marketing sale and supply of the Products as well as any taxes and bank charges whatsoever incurred when making the payment to the Company for such expenses and where the Manufacturer is appointed pursuant to Clause 3.1.2, any mould costs, sample building and submission costs (save for any hotel accommodation and travelling expenses incurred by the staff of the Company and/or its Affiliates in relation to any marketing activities for the Products, which shall be borne by the Company and/or its Affiliates) shall be borne and reimbursed in full by the Manufacturer. Such expenses shall be paid within seven (7) days from date of issue of the invoice or claims made by the Company to the Manufacturer.
8. Improvements 改进
8.1 All Improvements arising from work carried out whether by the Company and/or jointly by the Company with the Manufacturer shall remain the exclusive property of the Company. The Company shall be entitled to use all Improvements arising from any work carried out by the Manufacturer.
8.2 Each party shall promptly disclose to the other in confidence (and in sufficient detail to enable the other to use them) all Improvements that it may develop or acquire during the term of this Agreement except in so far as such disclosure would breach the confidence of a third party. 协议各方应将其在本协议期间可能发展或获得的所有改进立即向对方进行秘密披露（并提供具体细节以供对方使用）。以上披露可能违反对第三方的保密义务的除外。
9 Confidentiality 保密性
9.1 Each party hereby undertakes:协议各方在此承诺：
9.1.1 to keep confidential all Technical Information and all other information (whether written or oral) concerning the business, trade secrets, customers, suppliers and affairs of the other parties that it shall obtain or receive as a result of the discussions leading up to or the entering into or performance of this Agreement (the “Confidential Information”);
9.1.2 not without the other party’s written consent disclose any Technical Information, Improvements or any other Confidential Information in whole or in part to any other person save those of its employees, agents, advisers and sub-contractors involved in its performance of this Agreement and who have a need to know the same; and
9.1.3 to use the Confidential Information solely in connection with the performance of their respective obligations hereunder and not for its own benefit or the benefit of any third party.
9.2 The provisions of clause 9.1 above shall not apply to the whole or a part of the Confidential Information to the extent that it is obvious;
9.2.2 already in the other party’s possession on the date of its disclosure; or
9.2.3 in the public domain other than as a result of a breach of this clause.
9.3 Each party hereby undertakes to the other to make all relevant employees, agents, advisers and sub-contractors aware of the confidentiality of the Confidential Information under the provisions of this clause and without limitation of the foregoing to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents, advisers and sub-contractors under the provisions of this clause.
9.4 Notwithstanding the foregoing provisions the parties pursuant to this Agreement shall be entitled to disclose Technical Information of the other to actual or potential customers for the Products in so far as such disclosure is reasonably necessary to promote the sale or use of the Products.
10 Manufacturer’s Undertakings and Warranties 制造商承诺与担保
10.1 The Manufacturer hereby undertakes with the Company that during the term of this Agreement and for a period of five (5) years from any termination thereof, it will not directly or indirectly, whether by itself, its employees (including ex-employees) or agents and whether on its own account or on behalf of or in conjunction with or through the medium of, or as manager, advisor, consultant or agent for, any other person or otherwise howsoever, without the prior written permission of the Company or pursuant to the performance of its duties and obligations under this Agreement use or allow anyone else to use the Know-How Technical Information Product IPR and/or Confidential Information other than for the purposes of performance of this Agreement. For the purposes of this clause, “agent” shall mean a third party which has a contractual (written or oral) principal/agent relationship with the Company and/or its Affiliates. 制造商在此向公司作出承诺，在本协议期间以及本协议终止后五（5）年内，未经公司事先书面许可或非依据其在本协议项下的职责和义务，制造商不得直接或间接地，为本协议的履行之外的目的使用或许可他人使用专有技术，技术信息，产品知识产权和/或保密信息，无论是由其自己、其雇员（包括前雇员）或代理人并且无论以其自己名义或代表或与其他人一起或通过作为经理、顾问或代理人的其他任何人或以其他方式。为本款之目的，“代理人”应指与公司和/或其附属机构有（书面或口头）契约性委托关系的第三方。
10.2.8 comply with all statutes laws rules regulations and any other governmental authority in connection with the distribution, promotion, marketing and sale of the Products.
10.2.9 in respect of each order of the Products be responsible for:-
(a) ensuring the accuracy of the respective order; and 保证各订单的准确性；和
(b) sell and/or supply the Products in a brand name as may be determined by the Company . 按照公司确定的品牌名称销售和/或供应产品。
10.2.10 be responsible for the manufacturing process of the Products and also Products recalls by the customers.负责产品的制造流程以及客户对产品的召回。
10.2.11 be responsible for all the expenses and/or costs incurred upon marketing selling and/or supplying the Products including but not limited to, where the Manufacturer is appointed pursuant to Clause 3.1.2, any mould costs, sample building and submission costs. However, any hotel accommodation and travelling expenses incurred by the staff of the Company and/or its Affiliates in relation to any marketing activities for the Product shall be borne by the Company and/or its Affiliates.
10.2.12 allow the Company and/or its Affiliates to set up a trading company, other joint ventures in city or any where in the world.
10.3 The Manufacturer hereby represents and warrants to the Company that:
10.3.1 the Manufacturer is duly organized and is a validly existing legal entity under the laws of its applicable jurisdiction;
10.3.2 the Manufacturer has taken all legal steps required under applicable law to enter into this Agreement;
10.3.3 the Manufacturer possesses the requisite power to enter into and perform its obligations under this Agreement in accordance with its respective terms;
10.3.4 the Manufacturer by entering into and performing this Agreement does not violate any legal requirements in its applicable jurisdiction or the terms of any agreement by which it is bound as of the date of this Agreement;
10.3.5 the person(/s) executing this Agreement on its behalf are duly authorised and empowered to do so;
10.3.6 from the date of manufacture of the Products, 自产品制造之日起，
(a) the Products will conform to the specifications applicable to such product at the time of its manufacture, which are furnished in writing by the Company and/or the customers and accepted by the Manufacturer;
(b) such Products will be of merchantable quality, fit for its purposes, good material and workmanship and free from defects for which the Manufacturer is responsible in the manufacture and the Manufacturer agrees to be responsible for all rejects and replacement of such Products at the Manufacturer’s costs; and
(c) such Products will be free and clear of all liens and encumbrances and that the Manufacturer will convey good and marketable title to such Products.
In the event that any of the Products manufactured shall not be in conformity with the foregoing warranties, the Company shall, at the Company option, either debit the Manufacturer for any such nonconformity (not to exceed the purchase price paid by the Company for such Products), or, at the Manufacturer expense, replace, repair or correct such Product.
10.4 The Manufacturer acknowledges and agrees that Manufacturer’s failure to abide by the provisions of this Agreement would cause irreparable harm to the Company and/or its Affiliates for which legal remedies would be inadequate. Therefore, in addition to any legal or other relief to which the Company and/or its Affiliates may be entitled by virtue of Manufacturer’s failure to abide by these provisions: (i) the Company may seek legal and equitable relief, including but not limited to preliminary and permanent injunctive relief, for Manufacturer’s actual or threatened failure to abide by these provisions; (ii) the Manufacturer will, upon final judicial determination that the Manufacturer has breached the terms of this Agreement, indemnify the Company and/or its Affiliates of all expenses (including all legal fees on a solicitors and client basis, all taxes and bank charges whatsoever) in seeking to enforce these provisions; and (iii) if, as a result of the Manufacturer’s failure to abide by the provisions, any commission or fee becomes payable to the Company or to any person, corporation or other entity with which the Company has become associated, the Manufacturer shall pay the Company or cause the person, corporation or other entity with whom he has become associated to pay the Company an amount equal to such commission or fee.
制造商知晓并同意，如制造商不遵守本协议规定，将会给公司和/或其附属机构带来无法挽回的损害并且此类损害是法律救济所无法弥补的。因此，如制造商不遵守本协议规定，公司和/或公司的附属机构除法律和其他救济之外，还具备以下权利：(i)如公司实质性不遵守本协议或已造成不遵守本协议的威胁，公司可寻求合法的衡平的救济，包括但不限于临时禁令和永久禁令救济；(ii) 经司法上终局确定制造商已违反了本协议规定，制造商将对公司和/或其附属机构为执行本协议规定所支出的所有费用（包括但不限于律师和客户的法律费用以及所有税费和银行收费）；以及(iii) 如，由于制造商不遵守本协议规定，制造商任何应向公司或与公司有关联的任何个人、公司或其他实体支付佣金或费用，制造商应支付给公司或促使与公司有关联的任何个人、公司或其他实体向公司支付同等数额的以上佣金或费用。
10.5 A breach of any of the above representations and warranties in the Clauses 10 herein shall be considered a material breach of this Agreement.
11 Delivery 交货
11.1 The delivery arrangement will be mutually agreed upon by the parties herein. Upon learning of any potential delivery delays, the Manufacturer will notify forthwith the Company
12. Termination 终止本协议
12 1 Either of the parties shall be entitled to terminate this Agreement in the event that, at any time during the currency of this Agreement:
12.2 the other party shall materially breach any representation, warranty, covenant or other provision in this Agreement and such breach (if capable of remedy) is not remedied within thirty (30) days after written notice has been received from the other party of such breach; or
12.3 the other party is unable to pay its debts as they fall due or a petition is presented or meeting convened for the purpose of winding such party up or to declare such party bankrupt or such party enters into liquidation or bankruptcy whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver appointed over all or any part of its assets or if any event analogous to any of the foregoing shall occur in any jurisdiction in which such party is incorporated resident or carrying on business.
12.4 Upon lawful termination of this Agreement, no party shall be entitled to claim any compensation whatsoever from the other.
13 Effects of Termination 终止的效力
13.1 Termination of this Agreement howsoever arising shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date of termination and in particular, but without limitation, the right to recover damages against the other party.
13.2 Termination of this Agreement for any reason shall not bring to an end the confidentiality obligations on the parties hereto which shall survive the termination of this Agreement.
14 Assignment and Sub-Contracting 转让和分包
14.1 This Agreement shall be binding on and shall ensure for the benefit of the successors to the parties.
14.2 Neither party shall assign or novate its rights or obligations under this Agreement or any part thereof without the prior written consent of the other unless it is assigned to any company within the group company known in Malaysia as the Group.
14.3 Save as provided in this Agreement, neither party shall sub-contract any of its obligations under this Agreement without the prior written consent of the other.
15 Costs 其他开支
Except as otherwise agreed, each party shall bear its own legal and other costs incurred in connection with the negotiation, preparation and execution of this Agreement.
16 Severability 条款的可分割性
Each provision of this Agreement is severable and distinct from the others. If a provision of this Agreement is, or becomes, to any extent illegal, invalid or unenforceable, it shall to that extent be deemed not to form part of this Agreement but that will not affect the legality, validity or enforceability of any other provision of this Agreement, which shall continue in force and effect provided that the operation of this clause would not negate the commercial intent and purposes of the parties under this Agreement.
17 Waiver 弃权
The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
18. Amendments 修订
This Agreement cannot be altered or modified except by an agreement in writing signed by authorized representatives of the parties and specifically referring to this Agreement.
19 Entire Agreement 协议完整性
This Agreement together with all documents referred to herein constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements in regard thereto, whether oral or written, relating to the subject matter of this Agreement.
20. Undertakes of the Manufacture 制造商的承诺
The Manufacturer hereby undertakes with the Company that during the term of this Agreement and for a period of five (5) years from any termination thereof, it will not directly or indirectly, whether by itself, its employees (including ex-employees)or agents and whether on its own account or on behalf of or in conjunction with or through the medium of, or as manager, advisor, consultant or agent for, any other person or otherwise howsoever, without the prior written permission of the Company or pursuant to the performance of its duties and obligations under this Agreement use or allow anyone else to use the Know-How Technical Information Product IPR and/or Confidential Information other than for the purposes of performance of this Agreement. For the purposes of this clause, “agent” shall mean a third party which has a contractual (written or oral) principal/agent relationship with the Company and/or its Affiliates.