Embest’s Standard Terms and Conditions of Purchase
The following are Shenzhen Embest Technology Co., Ltd’s (hereinafter referred to as “Embest”) standard terms and conditions of purchase, which shall apply to all purchase orders and statements of work (hereinafter referred to as “Order” or “Orders”) issued by Embest, unless Embest has entered into a separate written agreement with the party that Embest issues the Order to (hereinafter referred to as “Seller”) that covers the same subject matter discussed herein.
1. ACCEPTANCE: These standard terms and conditions of purchase and the documents referred to herein govern all Orders issued by Embest, to the Seller identified on each Order. Fulfillment of any part of an Order, or any other conduct by Seller which recognizes the existence of a contract pertaining to the subject matter of such Order, shall constitute acceptance by Seller of such Order and all of the standard terms and conditions of purchase included or referenced herein (the "Contract Terms"). Embest objects to any terms proposed in Seller's proposal, quotes, sales note/order, acknowledgment or other form of acceptance of Embest’s offer which add to, vary from, or conflict with the Contract Terms. Any such proposed terms shall be void and the Contract Terms constitute the complete and exclusive statement of the terms and conditions between Seller and Embest. The Contract Terms may be modified at any time, without notice, by Embest. If this Order has been issued by Embest in response to Seller's offer and if any of the Contract Terms add to, vary from or conflict with any terms of Seller's offer, then the issuance of this Order by Embest shall constitute an acceptance of Seller's offer subject to the express condition that Seller assents to the additional, different and conflicting Contract Terms and acknowledges that the Order constitutes the entire agreement between Seller and Embest with respect to the subject matter hereof and the subject matter of Seller's offer. Seller shall be deemed to have so assented and acknowledged Embest’s Order unless Seller notifies Embest to the contrary in a writing signed by Seller within three (3) working days of receipt of the Order.
2. SERVICES & DELIVERABLES: Seller agrees to perform the services (“Services”) and/or provide the goods or service deliverables (collectively referred to hereafter as the "Goods") described in any Order to Embest, in accordance with the applicable Order and with these Contract Terms. Embest hereby reserves the right to reschedule any delivery or Order issued at any time prior to shipment of the Goods or prior to commencement of any Services. Embest shall not be subject to any charges or other fees as a result of such rescheduling unless otherwise agreed to in writing.
3. DELIVERY: Time is of the essence. Delivery of Goods shall be made pursuant to the relevant delivery date set out in the applicable order, via the carrier and to the place specified in the applicable Order. Embest reserves the right to return, shipping charges collect, all Goods received in advance of the delivery date. If no delivery date is specified, the Order shall be filled promptly and delivery will be made by the method of shipment specified. If no method of shipment is specified in the Order, Seller shall ship via the most expeditious service mode using the least expensive carrier. In the event Seller fails to deliver the Goods within the date specified, Embest may, at its option：1） decline to accept the Goods and terminate the Order; or 2) require the Seller to continue to perform and transport by air at the cost of the Seller. Seller shall package all Goods in suitable containers to permit safe transportation and handling in accordance with standard commercial practice. Seller must conform to the packaging and labeling requirements notified to it by Embest in each Order. Each delivered container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents and to be marked with wording of “For Embest”. Embest’s Order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.
4. RISK OF LOSS AND TRANSFER OF TITLE: Seller assumes all risk of loss until receipt by Embest of Goods. Title to the Goods shall pass to Embest upon receipt by it of the Goods at the designated destination.
5. INSPECTION: Seller shall deliver the Goods to Embest without any damage, and in packaging approved by Embest and in compliance with all the requirements of the Order and the Contract Terms. Embest shall have thirty (30) working days from the date of delivery of any Goods to the premises Embest appoints to inspect the Goods or have them inspected by any third party. If any Goods are found to be defective in material or workmanship or otherwise not in conformity with the requirements of the Order, Embest, in addition to any other rights which it may have under warranties or otherwise, shall have the right to reject and return such Goods at Seller’s expense, including all transportation charges. Payment for Services or Goods prior to inspection shall not constitute acceptance thereof. The inspection of Goods does not affect Seller’s obligation to indemnify Embest in respect of any issue that is not revealed by such inspection. Embest has the right, after considering the urgency of its requirement, to determine whether to accept any goods which is defective or otherwise not in conformity with the requirements of the Order. However, such acceptance will not exempt the Seller from its obligations such as quality and warranty, neither it will be deemed as the waiver of the rights or remedies Embest shall have hereunder or in the Order.
6. PAYMENT: Payment terms are as set forth in the Order. If no payment terms are specified, the net amount shall be payable within sixty (60) days after (i) delivery of the Goods/Services that conform to the Contract Terms and Order and (ii) receipt of a correct invoice. Except as otherwise provided in the Order, the price includes all applicable taxes and duties, assembly, packaging, and functional testing fee. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts and government imposed surcharges shall be stated separately on Seller's invoice.
7.1 Services: Seller represents and warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good, and sound professional procedures. Further, Seller represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in the Order or statement of work. Seller represents and warrants that its performance of Services will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Seller is bound.
7.2 Goods: Seller warrants that all Goods will be (i) new and will not be used or refurbished and (ii) genuine products manufactured by the entity whose name or logo appears on the Goods or their packaging. Additionally, Seller warrants that all Goods delivered hereunder shall be in full compliance with all applicable laws thereto, directives, standards, codes, regulations and safety approvals including, without limitation, the laws of the jurisdiction into which the Goods and/or products incorporating the Goods will be exported and/or sold (“Applicable Laws”), and are duly marked and labeled in accordance with Applicable Laws. Seller warrants that all Goods delivered hereunder shall be fit and sufficient for the purpose intended, merchantable, made of quality material and free from defects in design, material and workmanship and shall conform to all applicable specifications required by Embest for a period of at least eighteen (18) months from the date of delivery to Embest or for the period provided in Seller's standard warranty covering the Goods, whichever is longer. All Seller warranties and indemnities shall run both to Embest, and if applicable, to its end user customers. Inspection, testing, acceptance, or use of the Goods and Services by Embest shall not affect Seller's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance, and use. Seller shall replace or correct promptly defective or nonconforming Goods and Services without expense to Embest, upon notification of such non-conformity or defect by Embest and Seller shall pay (or refund the amount of) all carriage charges for any defective or nonconforming Goods returned to Seller and cost of carriage charges for replacement Goods, or at Embest’s option, will issue a credit or refund of the original purchase price of the defective or nonconforming Goods and Services. In the event of Seller's failure to correct or replace non-conforming Goods and Services promptly, Embest, after reasonable notice to Seller, shall make such corrections or effect cover at Seller's expense. Replacement and corrected Goods and Services shall be warranted for the remainder of the standard warranty period or one (1) year, whichever is longer.
7.3 Software: If applicable to any Order/Goods, Seller warrants that it will grant to Embest a perpetual non-exclusive, non-revocable, paid license to use any software and/or firmware integral to any Goods or Services.
7.4 Certification of Conformance; Date and Lot Code: Seller certifies that all Goods and Services and its individual materials and processes delivered under any Order conform in all aspects to all requirements of the Order including all applicable drawings, samples, specifications and descriptions, including any pertinent military standards or military specifications. Seller further certifies that all required testing and inspection has been performed in strict accordance with applicable descriptions, specifications and standards. A certificate of conformance and date and lot code shall be included in every shipment to Embest.
7.5 RoHS warranty:
7.5.1 In this clause 7 “RoHS Requirements” means the requirements of Directive 2011/65/EU of the European Union and all national laws of EU member states implementing such requirements and “Technical File” means the file of technical information regarding any Goods, their design, manufacture and composition (including, without limitation, reports of tests carried out on the Goods) that confirm the conformity of the Goods with the RoHS Requirements and that contains all of the information specified by the RoHS Requirements or any guidance produced by the bodies with responsibility for enforcement of the RoHS Requirements.
7.5.2 The Seller warrants that all Goods sold to Embest are in full compliance with the RoHS Requirements.
7.5.3 The Seller confirms that:
7.6 Content of Goods: Seller further represents and warrants that all of the Goods comply in all respects with all legislation and regulation applicable to such Goods in every country, state or province in which Embest is authorized to sell the Goods including, without limitation, legislation or regulation restricting or prohibiting the presence of particular chemicals or substances in the Goods.
7.7 Hazardous Goods: Seller warrants that all hazardous Goods will be marked with international danger symbols where they exist and the name of the material will be displayed in English and Chinese. Transport and other documents must include declaration of the hazard and name of the material in English and Chinese. Goods must be accompanied by emergency information in English and Chinese in the form of written instructions, labels or markings. Seller undertakes to observe the requirements of PRC legislation and any relevant international agreements relating to the packing, labeling and carriage of hazardous Goods. All information held by or reasonably available to Seller regarding any potential hazards known or believed to exist in the transport handling or use of the Goods supplied shall be promptly communicated to Embest prior to delivery.
8. INSURANCE: Seller shall be solely responsible for maintaining such adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Seller's trade or business, whichever affords greater coverage. Upon request, Seller shall provide Embest with certificates of insurance or evidence of coverage before commencing performance under any Order. Seller shall provide adequate coverage for any Embest property under the care, custody, or control of Seller. If Embest is purchasing consulting services from Seller, Seller shall be responsible for maintaining adequate professional liability insurance in addition to the above mentioned insurance coverages.
9. INTELLECTUAL PROPERTY:
9.1The Seller warrants that neither the sale nor the use of the Goods will infringe any patent, copyright, trademark, trade name, registered design, or other intellectual property right of any third party. To the extent that any of the Goods includes any intellectual property rights of the Seller or a third party including, but not limited to, any patent, copyright, trade mark, trade name, registered design or other intellectual property right, the Seller will indemnify Embest against all claims, losses, damages, liabilities or expenses (including legal costs) asserted against or incurred by Embest arising from any alleged or actual infringement of such rights in the manufacture or sale of such Goods. The Seller will, at its own expense, defend or assist in the defence of any proceedings which may be brought in that connection.
9.2 The Seller grants to Embest and warrants that it has the right to grant to Embest a royalty-free licence to use any of its trade marks, logos and other intellectual property necessary for the sale of the Goods on a worldwide basis. Embest may advertise the Goods under any such intellectual property rights on its website and in its catalogue and other marketing materials.
9.3 All patents, registered designs, copyright and other protective rights in or resulting from any design or development work carried out by the Seller at the request of Embest in the execution of this Order shall exclusively vest in Embest and the Seller shall take such action and execute all necessary documents, at its own expense, to vest all such rights in Embest.
10.1Seller shall indemnify, hold harmless, and at Embest’s request, defend Embest, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys' fees and costs of suit arising out of or in any way connected with the Goods or Services provided under any Order, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, product liability, violation of any applicable laws and health or safety standards, or contamination of the environment and any associated clean up costs; or (ii) any claim based on the negligence, omissions, or willful misconduct of Seller; or (iii) breach of any warranties herein, including but not limited to the RoHS warranty and any and all warranties of the clause 7; or (iv) any claim by a third party against Embest alleging that the Goods or Services, the results of such Services, or any other products or processes provided under any Order, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes. Seller shall not settle any such suit or claim without Embest’s prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by Embest in enforcing this indemnity, including attorneys' fees. Should Embest’s use, or use by its distributors, subcontractors and customers, of any Goods or Services purchased from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at is sole cost and expense, either (a) substitute fully equivalent non-infringing Goods or Services; or (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; or (c) obtain for Embest, its distributors, subcontractors and customers the right to continue using the Goods or Services; or (d) if none of the foregoing is possible, refund to Embest all amounts paid by it for the infringing or alleged infringing Goods or Services.
10.2 In case of failure of the delivery in time under Article 3 of this Terms and Conditions or the Order, Embest is entitled to, without prejudice to any other rights it has, the delay delivery penalty up to 0.3% per day of the delay Goods value, the maximum of which will not exceed 30% of the total value of the Goods.
10.3 Should the Seller breach Article 21, Embest is entitled to charge the penalty of 20% of the value of impacted Goods and the Seller shall also bear the several liability of the quality of such Goods.
11. CONFIDENTIALITY: Seller may acquire knowledge of Embest Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Embest Confidential Information in confidence during and following termination or expiration of any Order/Contract Terms. "Embest Confidential Information" includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to research, development, products, methods of distribution, trade secrets, business plans, customers, vendors, finances, personnel data, work product and other material or information considered proprietary by Embest relating to the current or anticipated business or affairs of Embest which is disclosed directly or indirectly to Seller. In addition, Embest Confidential Information means any third party's proprietary or confidential information disclosed to Seller in the course of providing Services or Goods to Embest. Embest Confidential Information does not include any information (i) which Seller lawfully knew without restriction on disclosure before Embest disclosed it to Seller; or (ii) which is now or becomes publicly known through no wrongful act or failure to act of Seller; or (iii) which Seller developed independently without use of the Embest Confidential Information, as evidenced by appropriate documentation; or (iv) which is hereafter lawfully furnished to Seller by a third party as a matter of right and without restriction on disclosure. In addition, Seller may disclose Embest Confidential Information, which is required to be disclosed pursuant to a requirement of a government agency or law, so long as Seller provides prompt notice to Embest of such requirement and gives Embest adequate time to bar such disclosure prior to Seller making such disclosure. Seller agrees not to copy, alter or directly or indirectly disclose any Embest Confidential Information. Additionally, Seller agrees to limit its internal distribution of Embest Confidential Information to such individuals who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution of nondisclosure agreements with provisions substantially similar to those set forth herein. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use or disclosure of Embest Confidential Information. Seller further agrees not to use the Embest Confidential Information except in the course of performing hereunder and will not use such Embest Confidential Information for its own benefit or for the benefit of any third party. The mingling of the Embest Confidential Information with information of Seller shall not affect the confidential nature or ownership of the same. Seller agrees not to design, manufacture or provide any Goods or Services, which incorporate Embest Confidential Information. All Embest Confidential Information is and shall remain the property of Embest. At any time, upon Embest’s written request, Seller shall return to Embest all Embest Confidential Information, including all copies thereof.
12. LIMITATION OF LIABILITY: IN NO EVENT SHALL EMBEST BE LIABLE TO SELLER, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH ANY ORDER OR THESE CONTRACT TERMS, WHETHER OR NOT EMBEST WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. TERMINATION: Embest may terminate for convenience, at any time, by written notice any Order, or its obligation to purchase any Goods or Services from Seller. Embest shall pay for any Goods or Services that comply with these Contract Terms and the Order received prior to the date of the termination notice. In addition to any other remedies provided at law or equity, either party shall have the right to terminate or cancel an Order, and any obligation to purchase, sell, or provide Goods or Services, in the event the other party (i) fails to comply with any material condition of the Order or these Contract Terms, and such failure is not remedied within thirty (30) days after written notice thereof has been given to such other party; or (ii) becomes insolvent, makes an assignment for the benefit of creditors, suffers or permits the appointment of a receiver, trustee in bankruptcy or similar officer for all or parts of its business or assets; or (iii) avails itself of or becomes subject to any bankruptcy proceeding under the laws of any jurisdiction relating to insolvency or the protection of rights of creditors.
14. ON-SITE SERVICES: If Seller performs any Services at one of Embest’s facilities, Embest reserves the right to interview and accept or reject any personnel Seller provides prior to commencement of Services at Embest’s facility. Seller agrees to employ only competent and skilled personnel to perform the Services and shall use all reasonable means to ensure the continued employment of personnel performing Services pursuant to this Order. Upon Embest’s request, Seller will immediately remove and replace any personnel who are unsatisfactory to Embest for any reason. Seller warrants that all personnel Seller assigns to Embest’s facilities shall have a prior satisfactory work record in a responsible capacity; have no criminal record; be in good health without any physical or mental conditions which would prevent the performance of essential functions of theServices. If Seller is or becomes a party to any collaborative bargaining agreement regarding contracted personnel, no provision in that agreement shall be binding upon Embest, unless otherwise required by law. Seller further agrees, while Seller's personnel are on Embest’s premises, that they will abide by Embest’s normal rules of work and all safety, drug and alcohol policies.
15. ACCESS: The Seller shall allow Embest, its customers and their representatives to carry out during normal working hours such inspections of the tooling, goods, books and records at the Seller’s premises as Embest may reasonably require.
16. REMEDIES: If Seller breaches these Contract Terms or any Order, Embest’s remedies are cumulative and Embest shall have all remedies available by law and at equity.
17. FORCE MAJEURE: Neither Seller nor Embest shall be liable for a delay in the performance of its obligations and responsibilities under these Contract Terms/Order when the delay is due to causes beyond its control, such as but not limited to war, strikes or lockouts, embargo, national emergency, insurrection or riot, acts of the public enemy, fire, flood or other natural disaster, provided that the affected party has taken reasonable measures to notify the other, in writing, of the delay. Failure of subcontractors and inability to obtain materials or labor shall not be considered as a force majeure delay.
18. COMPLIANCE WITH LAWS: Seller warrants that Seller, and all Goods furnished by Seller under any Order, shall comply fully with all applicable laws including, but not limited to, all applicable employment, tax, import and export control, and environmental laws. If Goods include hazardous materials, Seller represents and warrants that Seller understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials. Upon Embest’s request, Seller will promptly provide Embest with a statement of origin for all Goods.
19. IMPORT/EXPORT CONTROL:
19.1 Seller agrees to comply with all applicable import and export laws, restrictions and regulations of the People’s Republic of China (the “PRC”), the United States, the United Kingdom or other foreign authorities and shall not participate in transactions involving an embargoed country or a denied, blocked, or designated party under the regulations of the PRC, the United States, the United Kingdom or other foreign law or regulation.
19.2 Seller will provide Embest with all pertinent export information in relation to the Goods supplied from time to time under these Contract Terms including, but not limited to, country of origin, ECCN classification and Harmonized Tariff classification.
19.3 Without prejudice to the generality of clause 19.2 above, Seller will confirm to Embest if any of the Goods are subject to export control and, if they are, will provide the applicable US ITAR or ECCN classification entries and UK export control entries.
19.4 Seller will immediately inform Embest in writing if any information or classification disclosed under this Section 19 changes.
19.5 Seller will indemnify Embest against all claims, losses, damages, liabilities or expenses (including legal costs) asserted against or incurred by Embest as a result of the Seller’s failure to comply with its obligations under this Section.
20. SEVERABILITY: If any provision of these Contract Terms/Order shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
21. ASSIGNMENT & WAIVER: Seller may not assign these Contract Terms or any Order or any of its rights or obligations under these Contract Terms or any Order, without the prior written consent of Embest. Any assignment or transfer without such written consent shall be null and void. These Contract Terms/Order shall insure to the benefit of, and be binding upon, the successors and assigns of Embest without restriction. A waiver of any default hereunder or of any term or condition of these Contract Terms/Order shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
22. NONEXCLUSIVE AGREEMENT: This is not an exclusive agreement. Embest is free to engage others to perform Services or provide Goods the same as or similar to Seller's. Seller is free to advertise, offer and provide Seller's Services and/or Goods to others; provided however, that Seller does not breach these Contract Terms/Order.
23. SURVIVAL OF OBLIGATIONS: Any obligations, rights, and duties, which by their nature extend beyond the expiration or termination of these Contract Terms/Order, shall survive the expiration or termination of these Contract Terms/Order.
24. GOVERNING LAW: These Contract Terms/Order will be governed by and construed in all respects with the laws of PRC and each party submits to the non-exclusive jurisdiction of the PRC courts.
25. ENTIRE AGREEMENT; MODIFICATION: These Contract Terms/Order is the complete, final and exclusive statement of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. These Contract Terms, including an Order or change order issued by Embest, may not be varied, modified, altered, or amended except in writing signed and exeucted by the parties. Notwithstanding the foregoing, these Contract Terms/Order will not supersede, take precedence over, or take the place of any written agreement, which is signed by both parties and covers the same subject matter as these Contract Terms or its related Orders.
26. ETHICAL CONDUCT: The Seller confirms that it maintains and at all times complies with a code of conduct which sets out values and demands behavior of Seller which is no less demanding than those which Embest requires of its own directors, officers and employees as set out in the Premier Farnell Code of Conduct from time to time (a copy of which is available at http://www.premierfarnell.com/investors/code-conduct). Without limiting the generality of the foregoing, the Seller confirms that in carrying on its business it: (i) will comply with all applicable laws; (ii) will not employ child labor; (iii) will employ and maintain good and safe working practices; (iv) is not subject to any duty or interest which could conflict or be seen to conflict with its relationship with Embest; (v) is not, and is not owned or controlled by anyone who is, a US or EU denied party, a resident or citizen of any country which is sanctioned by or on any watch list published by the US or EU administration; (vi) will respect the environment and, wherever possible, employ and maintain sustainable and environmentally responsible working practices; (vii) will not act or take steps to act anti-competitively; (viii) will respect the assets and interests of third parties in carrying on its business; (ix) will not permit any racial, sexual, religious, age, disability or other unfair discrimination in the course of its business; and (x) will not do anything which could bring the name or reputation of Embest into disrepute.
The Seller further warrants and represents that it: (i) has not given, offered, been offered or received (or will at any time offer, give or receive) any bribes or other improper inducement or engaged in any corruption in connection with the Order; (ii) has not at any time been accused of or involved in any action, proceeding, investigation, allegation or claim that they (or any of them) have given, offered, been offered or received any bribe or other improper inducement or financial advantage or engaged in corrupt practices in the course of its business; and (iii) has not been debarred, suspended or made ineligible for participation in any government procurement program.
The Seller will notify Embest immediately if any bribe, improper inducement or financial advantage or any form of corruption is offered, given, made or received by or to it in connection with the Order or if any allegation or claim is made that it has breached any law or regulation relating to bribery or corruption anywhere in the world in the course of its business. On being so notified Embest shall be entitled to terminate the Order immediately without liability or penalty.
Sales Tel: +86-(0)755-33190868-863/865/866/650
Marketing Tel: +86-(0)755-33190868-883/859/853/851/828/635/616
Sales Email: firstname.lastname@example.org
Marketing Email: email@example.com