영문 생산 및 위탁가공 구매계약서(MANUFACTURING AND PURCHASE AGREEMENT)

MANUFACTURING AND PURCHASE AGREEMENT

문서서식포탈비즈폼

 

 

 

This MANUFACTURING AND PURCHASE AGREEMENT ("Agreement") made and entered into this 20th day of September, 2001, by and between ABC Ltd., a corporation duly organized and existing under the laws of the Republic of Korea with its principal office at , Korea (hereinafter referred to as "Company") and , a corporation duly organized and existing under the laws of , with its principal office at (hereinafter referred to as the “Manufacturer”)

 

WITNESSETH :

 

WHEREAS, Company seeks a reliable manufacturer in Indonesia to manufacture and export the Products (as defined in this Agreement) in accordance with this Agreement using the Raw Material (as defined in this Agreement) purchased from Company, other vendors or both;

 

WHEREAS, Company will provide some of the manufacturing equipments and financing facilities to help Manufacturer expand its production capacity and fully realize its business opportunities;

 

WHEREAS, Manufacturer is willing to procure the potential buyers (“Customer”) of the Products and have them establish the irrevocable letter of credit with the first class bank in favor of Company, wire transfer or otherwise make payments to Company to pay for the Products so purchased;

 

WHEREAS, Manufacturer has the physical facilities and production capacity suitable to manufacture and export the Products in strict conformity with the instructions and specification given by the Customer or Company ; and

 

WHEREAS, Manufacturer desires to manufacture and export the Products.

 

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, Company and Manufacturer agree as follows:

 

 

 

 

 

Article 1. Definitions

문서서식포탈비즈폼

 

"Customer" shall mean any person, firm or company procured by Manufacturer to whom the Products manufactured by Manufacturer are to be shipped or delivered by Manufacturer

 

"Effective Date" shall mean the date which is shown in the preamble of this Agreement.

 

"Letter of Credit" shall mean the irrevocable letter of credit payable at sight, which is opened in favor of Company with the first-class bank to pay for the Products to be manufactured by the Manufacturer and delivered to Customer.

"Parties" shall mean Company and Manufacturer.

 

"Products" shall mean the bags or luggages and subsequent amendments thereto executed by both parties hereto.

 

"Raw Material" shall mean the raw material(s) necessary for the manufacture of the Products and any subsequent amendments thereto executed by both parties hereto.

 

"Requested Raw Material" shall mean Raw Material which Manufacturer requests Company to supply.

 

 

Article 2. Basic Agreement

문서서식포탈비즈폼

 

2.1 Manufacturer shall procure Customers and present them to Company for its approval.

If the Customer so presented is the one who established Letter of Credit that has expiry date, shipment date or terms to allow enough lead time for manufacturing Products (including Raw Material procurement), Company’s approval is regarded to be given; otherwise Company shall have the sole discretion to accept or reject Customer and to go on with the transaction with the presented Customer.

 

2.2 Pursuant to Customer’s instructions and specifications, Manufacturer shall manufacture the Products using Raw Material purchased from Company, other vendors or both, and deliver the Products to the Customer.

 

2.3 Pursuant to Article 9, Company will lease free of charge the manufacturing equipments to supplement Manufacturer’s existing manufacturing facilities.

 

2.4 Pursuant to Article 8, Company will provide Manufacturer with financing facilities up to USD 24,000 as Company may think fit.

 

Article 3. Manufacture and Purchase of the Products

문서서식포탈비즈폼

 

3.1 Manufacturer shall manufacture and deliver to the Customer within such period of time and such quantities of the Products as Company or the Customer requests or as the Letter of Credit sets forth.

 

3.2 In the manufacturing and delivering of the Products hereunder, Manufacturer shall strictly comply with Customer's specifications and instructions, as well as the terms and conditions of the applicable letter of credit.

 

3.3 Manufacturer shall immediately notify Company of any problem or event that may result in a delay in production and delivery of the Products. This notification shall in no way affect the responsibility of the Manufacturer specified in Article 4.

 

3.4 The Products shall be manufactured in Manufacturer's own facilities, or at the place approved by Company. Unless otherwise approved by Company in writing, all of the Raw Material and the Products shall be stored or manufactured only at such place. Manufacturer shall not transfer, delegate, or sub-contract to any third party any of its rights or obligation under this Agreement without prior written consent of Company.

 

3.5 Manufacturer shall manufacture and deliver the samples of the Products to Customer for its approval. The Customer may test the sample(s) of the Products manufactured and delivered by Manufacturer pursuant to the inspection systems and standards of the Customer (the "Customer's Standards"). In the event that any of the Products and/or the sample(s) thereof fails to meet the Customer's Standards or other terms and conditions for the standards of the quality control to be decided subject to the mutual consent specified in the Agreement, Manufacturer shall take the steps to resolve that problem at its own costs, expenses and liabilities. Only after obtaining such approval Manufacturer shall commence the commercial manufacture of the Products.

 

3.6 Company may dispatch its personnel to Manufacturer to provide or conduct technical assistance, quality control and review as to the method and process of manufacturing the Products, whereupon Manufacturer shall grant complete access to its facilities to Company's employees. The cost for meals, lodging and other expenses etc.

incurred in Indonesia for Company's personnel dispatched for this purpose shall be borne by Manufacturer. The salary and round air fares for these personnel shall be paid by Company.

 

 

 

Article 4. Inspection and Quality of the Products

문서서식포탈비즈폼

 

4.1 Manufacturer shall warrant that the Products meet the standards of quality and workmanship agreed to by Customer.

 

4.2 Prior to the shipment and delivery of the Products, the inspection and quality control pursuant to the standards agreed upon shall be conducted by Manufacturer at the cost and liability of Manufacturer. Company may, if it deems fit, cooperate fully with such inspection and quality control including the test procedures.

 

4.3 It is expressly understood between the parties hereto that any sample approval, technical assistance, quality control, review, inspection or testing performed by Company or any other person under this Agreement is only for the purpose of assisting Manufacturer in maintaining certain standards of quality acceptable to Company and the Customer, and shall not constitute a waiver of, or otherwise adversely affect, the rights of Company or the Customer to claim for damages against Manufacturer in case of Manufacturer's failure to meet or maintain the standards of quality hereunder.

 

4.4 Manufacturer shall be liable for, and indemnify and hold harmless Company and/or Customer from and against, any loss, damage or expense including but not limited a) any suit, claim, award or judgment, plus interest thereon, b) any direct, indirect, incidental, or consequential damages and c) attorneys' fees, which shall be resulting from or attributable to any defects of the Products in quality, material or workmanship, any shortage or poor packing, any delay or failure of shipment or delivery, or any misrepresentation of breach or warranty by Manufacturer.

 

 

Article 5. Delivery of the Products

문서서식포탈비즈폼

 

5.1 Unless otherwise specified in writing by Customer or in the Letter of Credit, Manufacturer shall deliver the Products on the basis of F.O.B. (loading port) in accordance with INCOTERMS 2000.

 

5.2 Manufacturer acknowledges that time is of essence and that any failure of Manufacturer to manufacture and deliver any of the Products in accordance with any delivery schedule specified by Customer or in the Letter of Credit shall constitute a material breach of this Agreement.

 

5.3 At least five (5) days prior to each shipment, Manufacturer shall provide the Company and the Customer with notice of the expected date of shipment and a description of the Products' types and quantities in the shipment. On the day of each shipment, Manufacturer shall send to the Company and the Customer via telex or facsimile a list of the actual shipment's contents.

Company or the Customer if necessary shall obtain marine insurance or request Manufacturer to obtain such insurance at the expense of Company or such Customer from insurer designated by the Customer.

 

5.4 Manufacturer shall comply with the terms and conditions of packing, marking and shipping of the Products as the Company or the Customer may reasonably prescribe from time to time.

 

5.5 Company, at its own expenses, shall obtain any and all necessary permits or licenses to export the Products from the country of shipment and/or to import, sell use or otherwise dispose of the Products, including but not limited to the safety standard, in any countries where such Products are imported, sold, used or otherwise dispose of.

 

 

Article 6. Purchase Price and Payment

문서서식포탈비즈폼

 

6.1 The price of each shipment in Letter of Credit or otherwise in Customer’s purchase order, includes Company’s commission of 12% of FOB (INCOTERMS 2000) loading port price of Products, the costs for Requested Raw Material and such costs incurred on Manufacturer’s side as labor costs, Raw Material, administrative costs etc.

 

6.2 Payment by Company to Manufacturer for each shipment of the Products delivered hereunder shall be made by wire transfer within 10 days from the full encashment of Letter of Credit or full payment by Customer.

Company will pay to Manufacturer the amount remaining after deducting its commission of 12% on FOB shipment price of Products and the costs for Requested Raw Material from the encashed amount of Letter of Credit or full payment by Customer.

 

 

Article 7. (Minimum Requirements)

문서서식포탈비즈폼

 

7.1 During the term of this Agreement (9/20/2001~ 9/19/2002), Manufacturer shall have Letter of Credit(s) opened in favor of Company in the total amount of not less than United State Dollars Two Million (USD 2,000,000).

The required accumulative amounts for the specific period(s) for which Letter of Credit(s) should be opened and the shipment(s) under the relevant Letter of Credit(s) should also be made are as followings . The liquidated damages for Manufacturer’s failure to meet these minimum requirements are also set forth below.

 

 

Period		9/19/01~ 12/31/01	1/1/02~ 3/31/02	4/1/02~ 6/30/02	7/1/02~ 9/18/02
Required accumulative amounts of shipments under Letter of Credit		USD 300,000	USD 1,000,000	USD 1,500,000	USD 2,000,000
Liquidated damages
	damage 50% or less accomplished	0	USD 1,500	USD 1,500	USD 1,500
	More than 50% up to 70% accomplished	0	USD 1,000	USD 1,000	USD 1,000
	More than 70% up to 90% accomplished	0	USD 500	USD 500	USD 500

문서서식포탈비즈폼

 

 

7.2 The liquidated damage set forth above in Article 7.1 shall be due and paid on the first following installment repayment date of the Loan as set in Article 8.3. Any overdue amount shall bear the interest of 12% per annum during the period beginning from the time the amount becomes due until paid.

 

Article 8. (Loan)

문서서식포탈비즈폼

 

8.1 Company agrees to make loan to Manufacturer United States Dollars Twenty Thousand (USD 20,000) for the repair of the manufacturing facilities and for operation costs and United States Dollars Four Thousand (USD 4,000) for the procurement of press cutting machine.

 

8.2 Manufacturer will provide Company the notarized receipt of Loan amount advanced. Manufacturer shall create for Company and have registered the first priority security interest on its own manufacturing equipments as listed in Appendix B. Manufacturer expressly agrees not to claim any objection to the foreclosure of the so secured equipments if it fails to perform its obligations under this Agreement.

 

8.3 The total amount (USD 24,000) of Loan shall bear no interest unless otherwise set forth in this Agreement. It shall be repaid in twelve equal monthly installments of USD2,000 beginning October 31, 2001 at the end of every calendar month provided that the last installment repayment shall be made on September 19, 2002. Any amount past due date shall bear an interest at twelve percent per annum from the due date until paid in full.

 

 

Article 9. Equipment Investment

문서서식포탈비즈폼

 

9.1 Manufacturer warrants that it has the physical facilities and production capacity suitable for manufacturing and exporting the Products in strict conformity with Customer’s instructions and specifications.

 

9.2 It is expressly understood that any and all equipment necessary for the production of the Products, including the equipments leased by Company to Manufacturer (the "Leased Equipment"), shall be installed and managed by Manufacturer as its cost and liability. The list and contents of the Leased Equipment shall be set forth in Appendix A attached hereto. The Manufacturer shall always make it clear toward anyone including those seeking attachment to the Leased Equipment etc. that the Leased Equipment is Company’s property; shall also provide Company with the notarized receipt of the Leased Equipment as such.

 

9.3 Unless otherwise agreed in writing by the Parties hereto, Company shall provide Manufacturer with the Leased Equipment free of charge.

 

9.4 Manufacturer shall maintain and repair the Leased Equipment and shall provide appropriate insurance in favor of Company.

 

9.5 Manufacturer shall promptly return, transfer or assign the Leased Equipment to Company or Company's designee upon the written request of Company, at any time and for any reason, at the sole discretion of Company.

 

Article 10. Raw Material

문서서식포탈비즈폼

 

10.1 Manufacturer shall procure the Raw Material necessary for manufacturing Products. Manufacturer may request Company to provide the Requested Raw Material at a price and terms to be separately agreed upon by the Parties. Manufacturer may, at its own expense and liability, purchase Raw Material from third parties. It is understood that the Requested Raw Material is procured by Company for the benefit and convenience of Manufacturer. Therefore any price increase or decrease of Requested Raw Material or defect, late delivery non-delivery, shortage, loss thereof shall be the sole costs and risks of Manufacturer and Company shall be indemnified therefrom.

 

10.2 Unless otherwise expressly agreed in writing by the Parties, the delivery of the Requested Raw Material by Company to Manufacturer hereunder shall be made on the basis of F.O.B. loading port in accordance with INCOTERMS 2000 and the amount of Requested Raw Material shall not exceed 70% of the relevant Letter of Credit or Customer’s purchase order price.

10.3 Any costs and expenses to be incurred in the export from Korea and import into Indonesia of Requested Raw Material up to the time of loading Requested Raw Material on board at loading port shall be borne by Company; and thereafter. Manufacturer shall bear and pay any and all costs and expenses such as taxes, customs duties, freight, insurance premium etc.

 

10.4 For each shipment of the Requested Raw Material by Company to Manufacturer, Company shall send Manufacturer a notice describing the types and quantities of the Requested Raw Material to be shipped.

 

10.5 Unless otherwise agreed or waived in writing by Company, Manufacturer shall use only those materials, which have been approved by Customer as required in the manufacture of the Products.

 

10.6 Manufacturer agrees and acknowledges that the Raw Material purchased from Company shall be held only for the use, and shall be used only, for the manufacture of the Products hereunder and for the performance of its obligations hereunder. Without the prior written consent of Company, Manufacturer shall not use any of the Raw Material for any purpose other than the performance of its obligations hereunder.

 

Article 11. Records and Reports

문서서식포탈비즈폼

 

11.1 During the term of this Agreement, Manufacturer shall keep records containing details of its inventory of Raw Material, work in process, and the manufactured, shipped and delivered Products.

 

11.2 Manufacturer shall report to Company every month. These reports shall include market information gathered during the preceding semi-annual period.

 

Article 12. Protection of Patents and Trademarks

문서서식포탈비즈폼

 

12.1 Manufacturer recognizes and agrees that it does not acquire under this Agreement or by reason of its performance thereof, any right, title or interest in or to any of the patents, trademarks or trade names owned and/or used by Company, all of which shall remain the sole and exclusive property of Company.

 

12.2 Manufacturer shall not at any time do or cause to be done any act or thing which in any way impairs Company's exclusive right, title or interest in or to any patents, trademarks or trade names, and the good will symbolized by them.

 

Article 13. Confidentiality

문서서식포탈비즈폼

 

13.1 The Parties agree that all informations provided or to be provided by either party in connection with the performance of this Agreement shall be deemed to be confidential, or proprietary or both. As used herein, the term "Confidential Information" shall include, but not limited to, trade secrets and technical and other information regarding financial affairs, processes, materials, apparatus, research, yield, specifications, design and manufacture of the Products, now or hereafter in the possession of either party.

 

13.2 Manufacturer agrees and acknowledges that the Confidential Information of Company is a unique and valuable asset of Company and will be held in strict confidence for the exclusive use and benefit of Manufacturer and solely for the manufacture and delivery of the Products hereunder. Without the prior written consent of the other party, either party may neither use any of the Confidential Information for any purposes other than the performance of its obligations under this Agreement nor disclose any of the Confidential Information to others except as and to the extent necessary to perform its duties under this Agreement. Further, either party shall deliver and/or return all of the Confidential Information and the copies thereof to the other party (or any designee of the other party) at the request of the other party.

 

Article 14. Term and termination

문서서식포탈비즈폼

 

14.1 This Agreement shall be in full force and effect for one year from the date in the preamble hereof unless sooner terminated as provided in this Agreement. This Agreement may be extended upon mutual written approval.

 

14.2 Either party may terminate this Agreement if the other party is in default of any of its obligations hereunder and fails to cure such default within fifteen (15) days after written notice thereof.

 

14.3 Either party many terminate this Agreement immediately without notice upon bankruptcy, receivership, insolvency, liquidation, assignment for the benefits of creditors, or dissolution of the other party.

 

14.4 Upon the expiration or termination of this Agreement, except as otherwise provided for in this Agreement, the obligations of the parties hereunder shall be forthwith terminated. The provisions of Articles 4, 8, 9, 11, 12, 13 and 14 shall continue in effect after the expiration or termination of this Agreement.

 

14.5 The expiration or termination of this Agreement hereunder shall not prejudice or otherwise affect the rights or obligations of the parties with respect to the Products theretofore shipped or delivered or those purchase orders placed prior to the expiration or the effective date of termination or termination by the Customer when the Customer is approved as per Article 2.1. Further, the expiration or termination of this Agreement shall be without prejudice to the right(s) of either party to payment or other claim due or accrued up to the expiration or termination hereof.

 

 

Article 15. Business Relationship

문서서식포탈비즈폼

 

15.1 The parties hereto shall act in all matters pertaining to this Agreement as independent contractors. Neither party shall be deemed to be the agent, employee, or legal representative of the other party nor shall either party have the right to incur any obligation on be half of the other party or otherwise to bind the other party.

 

 

Article 16. Notice

문서서식포탈비즈폼

 

16.1 Any notice required or permitted by this Agreement shall be in writing and may be delivered personally or may be sent by telex, telegraph, cable, fax or registered air mail, postage prepaid, addressed to the parties.

 

16.2 Any notice sent by registered prepaid air mail properly addressed and posted shall be deemed to have been received ten(10) days after it is delivered to the postal authorities in the country of the party by whom it is sent. If sent by telex, telegraph, fax or cable, a copy of the telex, telegram or cable shall be sent promptly to the addressee.

 

16.3 Nothing contained herein shall justify or excuse failure to give oral notice for the purpose of informing the other party hereof when prompt notification is appropriate, but such oral notice shall not satisfy the requirement of written notice. Article 17. Integration and Modification of Agreement

 

17.1 This Agreement is intended by the parties as a final ｅxpression of their agreement and as a complete and exclusive statement of its terms. No course of prior dealings between the parties or trade shall be relevant or admissible in supplementing, explaining or varying any of the terms of this Agreement. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement shall not be relevant or admissible to determining the meaning of this Agreement, even though the accepting or acquiescing party has knowledge of the nature of the performance and the opportunity to object. In making this Agreement, the Parties have not made or relied upon any representation, understanding or agreement other than those specifically set forth herein.

 

17.2 No modification, alteration, addition or change in the terms of this Agreement shall be binding on either Party, unless duly executed by an authorized representative of each party.

 

 

 

Article 18. Governing Law

문서서식포탈비즈폼

 

18.1 The validity, construction, interpretation and performance of this Agreement shall be governed by the laws of the Republic of Korea.

 

 

Article 19. Arbitration

문서서식포탈비즈폼

 

19.1 All disputes, controversies or differences which may arise between the parties, out of, or in relation to, or in connection with this Agreement, or for the breach thereof, shall be finally settled by arbitration at Korean Commercial Arbitration Board in Seoul, Korea in accordance with the Commercial Arbitration Rules of the Korean Commercial Arbitration Board and under the laws of Korea. The proceedings shall be made in Korean language. The decision of the arbitration proceedings shall be final and binding upon both parties.

 

 

Article 20. Severability

문서서식포탈비즈폼

 

20.1 If any term, clause or provision of this Agreement is held invalid for any reason whatsoever, the remaining provisions shall remain in full force and effect as if the invalidated provision had not been included herein.

 

 

Article 21. Miscellaneous

문서서식포탈비즈폼

 

21.2 The Parties shall closely cooperate to attain the utmost benefit by this collaboration and closely exchange informations on purchase orders of Products etc. at least twice a month.

 

21.2 CMT manufacture of Products secured by Company shall be agreed by Parties separately. However Manufacturer will give priority to it if circumstances allow. If Manufacturer does not take the manufacturing of such order for whatever reason, it agrees to provide Company with supports such as warehousing facilities when Company party subcontracts to third party in Indonesia..

 

21.3 Manufacturer agrees to post the sign designed and provided by Company that it is one of Company’s subcontractors and agrees to take good care of Company’s customers who visit Manufacturer’s facilities.

21.4 Company has the option to convert Leased Equipment and advanced Loan into the share equity in Manufacturer.

 

21.5 Company agrees not have direct business with Customer procured and introduced by Manufacturer other than under this Agreement until one year of termination or expiration of this Agreement.

 

Article 22. Headings

문서서식포탈비즈폼

 

22.1 The headings of articles in this Agreement are for reference purposes only and in no way define, limit or affect any provisions contained herein.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives on the date first above written.

 

Company By : ________________________ Name : Title :

Manufacturer By : ________________________ Name : Title :

문서서식포탈비즈폼

 

Appendix A

 

Appendix B