| 1. Definition |
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1.1 “Agreement” shall mean this Agreement, the General Terms and Conditions (together with its Annexes), Order, Quotation from Vendor, and any documents expressly incorporated in this Agreement. 1.2 “Deliverables” shall mean the items stated in “2. Deliverables and/or Services” in this Agreement. 1.3 “Order” shall mean a document named service order for the Deliverables and/or Services as placed by Company. 1.4 “Price” shall mean the price stated in “3. Price” in this Agreement. 1.5 “Reference Materials” shall mean samples and/or master files that Company elects to provide under clause 4. 1.6 “Related Marks” shall mean trademarks and service marks incorporating and/or referencing Company, HKTV, HKTVmall, Hong Kong Technology Venture, and variations and combinations thereof. 1.7 “Services” shall mean the services stated in “2. Deliverables and/or Services” in this Agreement. 1.8 “Specifications” shall mean the Deliverables and/or Services specifications that the Vendor is required to deliver and perform under this Agreement. |
| 2. Scope, Order and Order Confirmation |
| 2.1 Vendor agrees that Company’s affiliated companies and/or companies that have been duly authorised by Company (or its affiliated companies) to accept Vendor’s provision of the Deliverables and Services according / subject to the terms and conditions herein. The acceptance of such provision of the Deliverables and Services by Company’s affiliated companies and/or companies that have been duly authorised by Company (or its affiliated companies) shall constitute a direct contractual relationship between the specific parties. For the avoidance of doubt, Company shall not be in any way be jointly or severally liable for the performance of the party accepting the provision of the Deliverables and Services. Nothing in this Agreement shall prevent Company from obtaining the same or similar services from any third party. 2.2 Through Vendor’s Authorised Person, Company may issue Orders to Vendor for the provision of the Deliverables and Services. |
| 2.3 Details of each Order shall include, but not limited to, the details of Deliverables and Services, date, the description, the specification, the unit price, and the estimated completion date. |
| 2.4 If an Order is rejected by Vendor, Vendor shall inform Company in writing within 3 working days after receipt by Vendor of the relevant Order. If Vendor does not issue any rejection notice to Company within the aforementioned period, Vendor shall be deemed to have accepted the Order placed by Company. |
| 3. Variations 3.1 Company shall have the right to require variations. Such variation shall not vitiate this Agreement. On receipt of a written instruction issued by Company, Vendor shall immediately and diligently proceed with the work. The term “variation” means the alteration or modification of any Specifications. It is also agreed that all variations shall be based upon rates for the same or similar items in the Order forming part of this Agreement. 3.2 For any variations to monetary value, monetary term, or products quantity, completion date in the Order, Vendor shall obtain advance written approval from Company’s Authorised Person before such variation work is carried out, failing which Vendor shall be fully responsible for all costs, expenses, losses and damages incurred from (including any rectification or any reinstatement where requested by Company), and shall indemnify Company against all loss and damages suffered by Company arising from or in connection with its breach. For avoidance of doubt, any acceptance of work or delivery by Company shall not be deemed as a waiver of Vendor’s breach under this clause. 4. Reference Materials |
| 4.1 For the sole purpose of performing this Agreement, Company may (but is not obliged to) deliver certain Reference Materials to Vendor on loan basis. |
| 4.2 The property of such Reference Materials shall at all times be and remain the property of Company. |
| 4.3 Upon the request of Company, Vendor shall return all Reference Materials to Company immediately. |
| 4.4 Vendor shall handle and store Reference Materials with due care and shall be fully liable for any damages of the Reference Materials whilst in his possession. |
| 5. Price and Payment |
| 5.1 Unless otherwise specified in this Agreement, the Price shall be inclusive of all fees, costs, charges, expenses, taxes, duties, levies and tariffs incurred by Vendor for performing this Agreement. |
| 5.2 Company may purchase certain products and services which are not included in this Agreement from time to time. In such case, Company may utilise a competitive process. This process may include steps such as requesting Vendor to provide information, quotation or proposal for Company’s consideration among other vendors. This communication and interaction with the Vendor shall not be legally binding unless and until Company confirms the order in writing. |
| 5.3 Company shall be entitled to require the Vendor to report on the status of Deliverables and Services delivered or to be delivered under this Agreement at such time and frequently as Company deems fit. 5.4 Upon completion of the Order, Vendor shall submit invoice, tax bill and any other supporting documents that Company may request. |
| 5.5 Except for the amount of retention money which both parties agree to be retained in writing, Company shall settle the invoices in accordance with this Agreement. Notwithstanding the aforesaid, if Company has discovered problems or raised disputes with the Deliverables and/or Services, or with the amount invoiced, or upon occurrence of Force Majeure Event, Company shall be entitled to withhold payment until the issue is resolved. |
| 5.6 It is specifically agreed that Company shall have rights to set off any amounts owing from Vendor to Company. 5.7 Should Vendor fail to deliver Deliverables or Services on the agreed date, Vendor shall bear all extra costs resulting from such failure and Vendor shall be liable towards Company for all direct costs and damages incurred by Company, such without prejudice to any other rights accruing under this Agreement or in law. 5.8 Vendor shall be liable for liquidated damages for late delivery of Deliverable or Services, calculated at 0.1% per day of the total amount of the relevant Order. |
| 6. Performance under this Agreement |
| 6.1 Vendor shall perform this Agreement in accordance with Company’s instructions as communicated with the Vendor from time to time. 6.2 Company shall have the right to deduct any payment to Vendor in the case if Company considers the performance of the Vendor does not meet the requirements as given by Company or the service level committed by Vendor. 6.3 Vendor shall employ workers and employees for the performance of this Agreement at its sole costs. All workers and employees must be technically competent and experienced in the performance of the relevant order under this Agreement. 6.4 Vendor shall be liable for all acts done by its agents, safety managers, workers and employees as an employer. If Company considers that certain agent, worker or employee of Vendor to be inappropriate for the performance of the order under this Agreement, Vendor shall replace such person. 6.5 Vendor must purchase and maintain valid comprehensive insurance policies (including industrial accident insurance, insurance for work injuries of employees, etc.) which are required under local laws and regulations. 6.6 Vendor shall take adequate safety and emergency measures and notify Company of such measures for the prevention of injuries or accidents. |
| 7. Manufacturing locations and Subcontractor |
| 7.1 Unless Company gives its prior consent in writing, Vendor shall only conduct the manufacturing services in the facilities and locations specified as Manufacturing Locations approved by Company in this Agreement. 7.2 Unless Company gives its prior consent in writing, Vendor shall only subcontract its services to the subcontractors specified as Subcontractor approved by the Company in this Agreement. 7.3 Vendor should inform Company in writing and seek Company prior written approval if there are any changes on facilities & subcontractors. 7.4 Notwithstanding anything to the contrary contained in this Agreement, the Vendor shall be liable and shall remain jointly and severally liable for all the defaults under this Agreement by any subcontractors. Any subcontracting of any of its obligations hereunder shall not relieve the Vendor from liability in respect of such obligation. |
| 8. Trademarks |
| 8.1 Vendor acknowledges that nothing in this Agreement shall be deemed or interpreted in any way as giving Vendor any right or title to Related Marks or similar trademarks, tradenames and indications, unless specifically provided herein and strictly for the performance of this Agreement. |
| 8.2 Vendor shall not, without Company’s prior written consent: (i) use any Related Marks as such and/or use the same in connection with any advertisement or sales literature; (ii) advertise that it is a supplier of Company; or (iii) communicate with third parties that this Agreement between Vendor and Company has been concluded. Vendor shall provide to Company all advertisement or sales literature and materials containing Related Marks, similar trademarks, tradenames or indications prior to their use by Vendor. 9. Warranty and Quality 9.1 Vendor shall, at its own costs, produce and submit sample or trials to Company for confirmation and approval. Company shall have absolute rights to approve or reject such samples or trials. 9.2 Vendor warrants to Company that the Deliverables and/or Services delivered pursuant to this Agreement shall conform to the Specifications as intended for and will be free from defects in design, materials and/or workmanship, and shall be supplied and/or carried out with the standard of care, skills, duties and level of diligence that a reasonable person would expect from service providers of market standing, scale and experience commensurate with Vendor and shall comply with all laws and regulations and the industry standards. 9.3 Should any Deliverables and/or Services fail to conform to the warranty, Vendor shall, at Company’s option, for a period of 36 months after the time of delivery or other period expressly agreed between the Parties in writing under this Agreement, (i) provide Company free-of-charge with replacement Deliverables and/or Services, or (ii) repair or rectify the non-conforming Deliverable and/or Services. Vendor shall be responsible for all costs of repair or replacement or rectification and Vendor shall pay for all reasonable costs and expenses incurred by Company in connection with such non-conforming Deliverables and/or Services. 9.4 In case Company agrees that no replacement or repair or rectification is required, and to accept the non-conforming Deliverables and/or Services, Company shall be entitled to a discount. 9.5 In case Services are required, Vendor guarantees that the Services be executed: (i) in accordance with the agreed requirements and that the results intended to be achieved pursuant to the order shall be met; (ii) with good workmanship; and (iii) with an adequate number of persons and qualities and quantities of materials, as the case may be. 9.6 If Vendor’s works do not meet the terms and conditions specified by the plans, specifications, manual and other documents approved by Company, Vendor shall promptly correct the inconsistencies in accordance with the instructions of the Company at its own costs and Vendor must take measures promptly on such a request to the satisfaction of the Company. 9.7 Vendor further represents and warrants that: (i) any materials or things (whether tangible or intangible) forming part of the Deliverables or Services shall not infringe any third party’s rights (including but not limited to intellectual property rights); (ii) it has experience and capabilities to perform this Agreement; (iii) it has obtained and possesses all the necessary authorizations, power, permits and licenses required under the laws and regulations in force to execute and perform this Agreement, and such authorizations, permits or licenses are in full force and effect on the date hereof and shall remain in full force and effect during the term of this Agreement; (iv) this Agreement and the obligations assumed by it hereunder are legal and validly binding on it in accordance with the terms hereof; and (v) the execution of this Agreement and the performance of its obligations hereunder do not constitute and will not result in any contravention of any applicable law or regulation or any breach of any agreement to which it is a party or which is binding on it. |
| 10. Term and Termination |
| 10.1 This Agreement is effective from the Effective Date and expires on the Expiry Date. |
| 10.2 Company is entitled to terminate this Agreement at any time by serving 1 month prior written notice. |
| 10.3 Company may terminate this Agreement and/or any Order, in whole or in part, immediately by giving notice to the Vendor upon the material breach of this Agreement by the Vendor, which breach is incapable of being cured or which, if capable of cure, has not been cured within thirty (30) days after the Vendor has been put on notice with reasonable specificity of such breach, such without prejudice to any other rights accruing under this Agreement or under the law. |
| 10.4 Notwithstanding the provision of clause 10 hereof, this Agreement and/or any Order, in whole or in part, may be terminated immediately by Company, without the requirement of court intervention in the event that either of following shall occur: |
| (i) Vendor ceases to carry on business in the normal course, becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver or a manager for its business assets or avails itself or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency of protection of the right of creditors; or |
| (ii) control over Vendor is transferred to a third party other than those exercising control at the time of signing of this Agreement and if Company has reason to believe that this is contrary to Company’s justified business interests. 11. Force Majeure 11.1 If the Vendor is prevented or delayed from providing the Services, delivering the Deliverables or otherwise from performing this Agreement or any part thereof by reason of act of God, war, embargo, riot, strike, lock-out, trade dispute, government action (“Force Majeure Event”), the Vendor shall promptly give oral and written notice to Company, stating the circumstances together with such evidence hereof as can reasonably be given and specifying the period of which it is estimated that the Vendor’s performance of this Contract shall be delayed or prevented. The Vendor shall promptly resume the works when the Force Majeure Event ceases. 11.2 Company shall have the right to immediately terminate this Agreement if the Force Majeure persists for more than 15 days. |
| 12. Confidentiality and Intellectual Property |
| 12.1 During the term of this Agreement, Company will provide confidential or proprietary information or material from Company, whether orally, or in documentary form or other tangible or intangible form or by demonstrations, including information relating to its business, financials, business practices, market opportunities, technology, trade secrets, inventions, patent, trademark and copyright applications, improvements, know‑how, specifications, computer programs, research, development, concepts, drawings, construction plans and specifications cost and pricing data, process flow diagrams, bills, lists of its customers, merchants and vendors, information of customers, merchants and vendors (including names and their respective data), ideas, and/or any other material referring to the same (“Confidential Information”). Vendor agrees that all such Confidential Information will be considered Company’s property and confidential and proprietary to Company, and Company will have all ownership and use rights to the same. |
| 12.2 Vendor agrees that it will: (i) take all practical steps to protect and preserve the confidential and proprietary nature of all Confidential Information and to prevent unauthorised or accidental access, processing, erasure, loss or use of all Confidential Information; (ii) not disclose, give, sell or otherwise transfer or make available, directly or indirectly, any Confidential Information to any third party for any purpose; (iii) not use the Confidential Information, except as expressly provided in this Agreement and for the purpose of performance of this Agreement; (iv) with respect to its employees, limit the dissemination of the Confidential Information to such individuals whose duties justify the need to know the Confidential Information; (v) not make any records or copies of the Confidential Information except as specifically authorized by Company in writing and return or destroy all Confidential Information and any copies thereof (in whatever form) immediately upon Company’s request and in any event, no later than the effective date of termination of this Agreement, and confirm in writing to Company of the same; and (vi) immediately notify Company of any loss or misplacement of the Confidential Information or copies of the same. |
| 12.3 Vendor shall not retain any rights that are or maybe vested in the materials created by Vendor under this Agreement. It is specifically agreed that the materials created by Vendor shall be deemed as Confidential Information and shall be subject to the restrictions contained herein. Vendor hereby assigns, and to the extent not presently assignable agrees to assign, to Company all rights, title, and interest, throughout the world, in and to any and all inventions, works of authorship, developments, concepts, software, or improvements (whether or not patentable or registerable under copyright or similar laws, whether solely or jointly conceived or developed or reduced to practice, and whether reduced to tangible form), by Vendor in connection with Vendor’s performance of this Agreement or Services or Deliverables or which were created with reference to Confidential Information, and to any copyright, patent, trade secret, trademark, mask work, moral, industrial or any other property rights in such inventions. All work products will be deemed “works made for hire.” |
| 12.4 All work resulting from the Vendor’s activity as part of this agreement, particularly any projects, sketches, drafts, artwork, specification, technical & construction drawings, models and all design & creative items, shall become the exclusive property of the Company, including the copyright relating thereto. |
| 12.5 The Vendor shall comply with all applicable laws and regulations relating to the processing of personal data or privacy or any amendments and re-enactments thereof, and shall procure that its employees, agents, and subcontractors shall observe the provisions of the same. |
| 13. Indemnification |
| Vendor agrees to indemnify, defend and hold Company and its affiliated companies and their officers, directors and employees harmless from and against all liabilities, claims, fines, losses, damages, costs and expenses (including reasonable attorney’s fees) whether direct or indirect, arising from, related to or in connection with (i) the inaccuracy of any representation or warranty made by Vendor hereunder; (ii) any breach of this Agreement by Vendor; (iii) any wilful or negligent act, failure to act, error or omission by Vendor or its officers, directors, employees or agents in relation to the Services and/or the Deliverables or otherwise in connection with this Agreement; or (iv) the violation of any applicable laws or regulations. 14. Anti-Corruption and Anti-Bribery 14.1 Vendor acknowledges that Company, together with its affiliates (“Company Group”), is a global group of companies, and is subject to the U.S. Foreign Corrupt Practices Act of 1977, as amended, the United Kingdom’s Bribery Act 2010 and the local fraud, anti-corruption and anti-bribery laws in the jurisdictions in which Company Group operates (collectively, the “Anti-Corruption Laws”). 14.2 Vendor represents and warrants that as of the Effective Date of this Agreement, it is not a “Governmental Entity” meaning any supra-national, federal, national, state, county, local, municipal, or other governmental, regulatory, or administrative authority, agency, commission, or other instrumentality; any court, tribunal, or arbitral body with competent jurisdiction; or any military, quasi-military, or law enforcement agency or entity, nor is any of its owners, management, officers, agents, employees, representatives, contractors, subcontractors, or consultants. Vendor further represents and warrants that none of its employees is a Governmental Official, as defined below, unless the Government Official was previously disclosed to Company Group through Company Group’s Due Diligence Questionnaire or otherwise and approved by Company Group. In all cases, Vendor shall report to Company Group immediately if it is notified of any decision, which would (i) cause Vendor to become a Governmental Entity or cause any of its owners, management, officers, agents, employees, representatives, contractors, subcontractors, or consultants to become a Government Official; or (ii) transfer the management and/or ownership of Vendor to a Governmental Entity or Government Official. 14.3 “Government Official” includes: (1) any executive, official, employee or agent of any Governmental Entity, including elected officials; (2) any candidate, official, employee or agent of a political party, (3) any legislative, administrative or judicial official, (4) any executive, official, employee or agent of a public international organization, (5) any director, officer, employee or agent of a wholly or partly government owned or controlled entity or business, (6) any director, officer, employee or agent of a public service related organization or institution, (7) any officer or employee of private and/or government owned or controlled media organizations, and (8) any employees of public and private schools, and (9) any person otherwise categorized as a government official under applicable local law. 14.4 In connection with the Deliverables and/or Services provided by Vendor to Company Group, Vendor, on behalf of itself and each of its representatives, represents, warrants and covenants that as of the Effective Date of this Agreement (a) it understands, has complied with and will continue to comply with the Anti-Corruption Laws, (b) it and its affiliates, and their respective officers, agents, employees, representatives, contractors, subcontractors, and consultants have not taken and will not take any actions, directly or indirectly, to authorize, offer, promise or provide any payments, contributions, gifts, entertainment, other item of value, or any other non-tangible benefit, to any Government Official, any entity or any other individual for the purpose of influencing the recipient to take or refrain from taking any action, improperly perform a function or activity, or otherwise provide preferential treatment to obtain or retain business or otherwise secure an improper advantage to Company Group, and (c) it shall notify Company Group immediately in writing in the event of any actual or alleged breach or violation of the Anti-Corruption Laws. 14.5 Vendor represents and warrants that it shall make and keep books, records, and accounts which, in reasonable detail, accurately and fairly reflect the transactions and disposition of its assets. Vendor must also devise and maintain a system of internal accounting control sufficient to provide reasonable assurances that (i) transactions are executed and access to assets is given only in accordance with management’s general or specific authorization; and (ii) transactions are recorded as necessary to ensure preparation of periodic financial statements and to maintain accountability for assets. Vendor must also adopt and implement policies and compliance procedures on ethical business practices. 14.6 Vendor represents and warrants that it will permit, during the term of this Agreement and for 3 years after final payment has been made under this Agreement, Company Group’s internal and external auditors access to any relevant books, documents, papers and records of Vendor involving transactions related to this Agreement. 14.7 Any misrepresentation or violation of the aforesaid provisions or the Anti-Corruption Laws shall be deemed a material breach of this Agreement, and, in that event, Company Group shall be entitled to terminate this Agreement immediately upon notice by Company Group. Vendor shall indemnify and hold harmless Company Group, its affiliates, and their respective officers, agents, employees, representatives, contractors, subcontractors, or consultants from and against any and all liabilities, claims, costs, including attorneys’ fees, judgments, causes of action, court orders, payments, losses, damages (including incidental damages), expenses, demands, or other penalties that Company Group, its affiliates, or their respective officers, agents, employees, representatives, contractors, subcontractors, or consultants may suffer as a result of any misrepresentation, violation, or breach of these representations and warranties. |
| 15. Securities Dealings Some or all of the information may be inside information (within the meaning of the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong)) relating to the securities of Company’s holding company which are listed on The Stock Exchange of Hong Kong Limited. Vendor shall not disclose any of the information to another person or use the information to deal, or to counsel or procure another person to deal, in the securities of our listed company in a manner that could result in any violation of any laws or regulations of Hong Kong and any other applicable jurisdiction relevant to such dealing. 16. Others |
| 16.1 This Agreement shall in all respects be governed by and construed in accordance with the laws of which Company resides. All disputes arising out of or in connection with this Agreement shall be submitted to the competent courts of which Company resides, provided always that Company is entitled to submit any such dispute to the competent courts in the venue of the Vendor’s registered office. The Vendor hereby irrevocably waives any objection to the jurisdiction, process and venue of any such court and to the effectiveness, execution and enforcement of any order or judgement (including, but not limited to, a default judgement) of any such court in relation to this Agreement, to the maximum extent permitted by the law of any jurisdiction, the laws of which might be claimed to be applicable regarding the effectiveness, enforcement or execution of such order or judgement. |
| 16.2 Vendor may not assign, delegate, mortgage, charge or otherwise transfer any of its rights or obligations under this Agreement without Company’s prior written approval. Company may assign and transfer all its rights and obligations under this Agreement to any of its affiliated companies, provided that the assignee undertakes in writing to the other party to be bound by the obligations of the assignor under this Agreement. |
| 16.3 Except for the Company, and its affiliated companies, and their respective officers, employees, consultants, agents and representatives (each a “Company Third Party”), no person who is not a party to this Agreement shall pursuant to the Contracts (Rights of Third Parties) Ordinance (Cap.623 of the Laws of Hong Kong), or such other similar laws of the jurisdiction in which the Company resides, rely on any provision of this Agreement (including without limitation any indemnity, limitation or exclusion of liability) which expressly confers rights or benefits on that person. The parties may, without the consent of any Company Third Party, rescind or vary this Agreement in such a way as to extinguish or alter the benefits or rights conferred by this clause. 16.4 Notices or other communications under this Agreement shall be in writing and shall be effective when delivered to the addresses set forth in this Agreement (or to such other address as either party may from time to time provide to the other party). |
| 16.5 Any provisions that are destined to survive shall so survive the termination of this Agreement. |
| 16.6 Any waiver must be signed by the party alleged to have waived such provision. Any single waiver shall not operate to waive subsequent or other defaults. The lack of ability to enforce any provision of this Agreement shall not affect the remaining provisions or any portions thereof. |
| 16.7 Nothing in this Agreement shall be deemed to constitute a partnership between the parties, nor constitute any party as agent / employee of the other party. 16.8 The documents included or referred to in this Agreement shall, in case of and only to the extent of a conflict between two or more of the documents, be applied in the following order of priority: (i) This Agreement (ii) General Terms and Conditions (together with its Annexes) (iii) Order (iv) Quotation from Vendor. 16.9 With regard to all dates and time periods set forth or referred to in this Agreement, in particular, as to the delivery of deliverables and/or services under this Agreement, time is of the essence. 16.10 This Agreement may be executed in counterparts, each of which shall be deemed an original but together shall constitute one and the same instrument. |