TERMS AND CONDITIONS
Lotus Pharmaceutical Co., Ltd. and its Affiliates
STANDARD PURCHASE ORDER TERMS AND CONDITIONS
Last updated 1 August 2023
This Standard Purchase Order Terms and Conditions (“Terms”) only apply to transactions that do not have a written agreement, duly executed by both parties. If there is such an agreement, then those terms shall be the terms that govern the transaction and relationship of the parties. In the absence of such a written agreement, duly executed by both parties, then these Terms provide you (“Seller”) with terms of the purchase order (“Order”) placed by Lotus Pharmaceutical Co. (“Lotus”), Ltd. and/or its Affiliates (“Buyer”) for the goods and/or services that are described in the Order (“Goods”). For the purpose of these Terms, the term “Affiliate” shall mean any entity that is controlling, controlled or under joint control with Lotus and “control” means (a) to possess, directly or indirectly, the power to direct the management or policies of a party, whether through ownership of voting securities, by contract relating to voting rights or corporate governance or otherwise, or (b) to own, directly or indirectly, fifty percent or more of the outstanding voting securities or other ownership interest of such party.
本標準採購訂單條款及條件(“本條款”)僅適用於雙方沒有正式簽署書面合約的交易。如有書面合約存在，則雙方交易關係應由該合約條款所規範。在欠缺雙方正式簽署書面合約的情況下，就訂單中所述之產品及/或服務(“產品”)，本條款為貴公司(“賣方”)與美時化學製藥股份有限公司("美時”)及/或其關係企業(“買方”)的採購訂單(“訂單”)提供了具有法律效力的規定。為本合約之目的，「關係企業」一詞應指指任何控制、受控制或與美時共同控制之實體，「控制」一詞指 (a) 直接或間接擁有指揮一方管理或政策之權力，無論是透過具表決權股份之所有權、與表決權有關之合約、公司治理、或其他方式；或 (b) 直接或間接擁有該方百分之五十或以上之流通在外有表決權股份或其他所有權權益。
1. OFFER AND ACCEPTANCE: Buyer shall specify terms of payment, including price, order date, place of payment and any other information that Buyer deems necessary for such Order. Seller accepts the Order and any amendments by signing the acceptance copy of the Order and returning it to Buyer promptly. Even without such written acknowledgment, Seller's full or partial performance under the Order shall constitute acceptance of the Terms. By acceptance of the Order, Seller agrees to be bound by, and to comply with all the Terms, which include any supplements to it, and all specifications and other documents referred to in the Order. Buyer expressly rejects any additional or different terms, conditions or specifications proposed by Seller, whether stated in Seller's form of acknowledgment to the Order or elsewhere, except as expressly agreed to in writing by Buyer. The Terms may be modified only by a written document signed by duly authorized representatives of Buyer and Seller.
2. DELIVERY: Seller shall deliver the Goods on time in accordance with the Order and any late delivery shall constitute Seller’s material breach of the Order. Unless otherwise agreed by both parties in writing, the risk of loss to the Goods shall be borne by Seller before Buyer’s acceptance of Goods in accordance with Section 8 below. Without Buyer’s prior written consent, Seller shall not perform any partial or advance shipment of Goods or any transshipment of Goods. If the delivery of Goods is likely to be delayed, Seller shall immediately inform Buyer in writing and change the transportation method upon Buyer’s request and any associated costs and expenses shall be borne by Seller. For any late delivery of Goods, a penalty charge will be imposed on Seller by Buyer at a rate of 0.5% of the total amount of the Order per each delayed day; Buyer shall also be entitled to terminate or cancel the Order in part or in whole without any liability to Seller with immediate effect by delivery of written notice. Remedies contained in this point 2. are in addition of all other remedies that may be available to Buyer pursuant to applicable laws. Seller shall indemnify and hold Buyer harmless from and against any and all losses and damages resulting from late delivery (including, without limitation, the attorneys’ fee).
3. PRICE: The Order is issued by Buyer based on Seller’s price quotation; unless otherwise agreed by both parties in writing, Seller shall not increase the price or reject the Order. Seller warrants to supply Goods to Buyer at the most favorable prices. If the Goods price is reduced by Seller prior to delivery of Goods, Seller agrees to invoice Buyer at the lowest applicable price invoiced by Seller for the Goods to any third party between the date the Order is placed and delivery date of Goods to Buyer. If there is any price discrepancy resulting from any breach of the above, Seller agrees that Buyer may deduct such price discrepancy from any amount payable to Seller and Seller shall make up the deficiency if any within ten (10) days from Buyer’s written request. Besides, unless otherwise specified in the Order, the prices of Goods hereof are inclusive of any and all other costs/expenses (including, without limitation, the expenses of transportation, labeling, tariffs, warehousing, insurance, packing, container, etc.) and no additional payment will be due to Seller for the Goods and their delivery, apart from the price indicated in the Order.
4. INVOICES: Invoices shall be rendered on completion of services or delivery of Goods and shall contain the purchase Order number, item number, description of Goods or services, quantities, unit prices, date(s) rendered and total purchase price in accordance with applicable laws. Each invoice must only refer to one purchase order.
5. PAYMENT: Payment shall be made on the terms as set forth in the Order, unless otherwise agreed by both parties in writing, the payment terms shall be 90 days after receipt of a complete, accurate and undisputed invoice from Seller and receipt of Goods at the site of Buyer. Seller’s failure to submit a complete and accurate invoice may result in delay of payment. Buyer may deduct any amount owed to Buyer by Seller under the Order or any other agreement or order between the parties from any amount due to Seller.
6. TAXES: The purchase price set forth in the Order is inclusive of any and all taxes and other government charges, imposed at the time of issuance of the Order or later becoming effective, upon the production, sale, shipment, use of the goods, materials or services specified in the Order, in accordance with applicable tax laws.
7. PACKAGING: All Goods must be packaged in the manner specified by Buyer and shipped in the manner and by the route and carrier designated by Buyer. If Buyer does not specify the manner in which the Goods must be packaged, Seller shall package the Goods so as to avoid any damage in transit. If Buyer does not specify the manner of shipment, route, or carrier, Seller shall ship the Goods at the lowest possible transportation rates, consistent with Seller's obligation to meet the delivery schedule set forth in the Order.
8. INSPECTION: All delivered Goods shall be inspected under Buyer's product inspection criteria within 30 days after Buyer receives Goods. It is understood and agreed by both parties that Goods may have latent defects which cannot be discoverable upon reasonable physical inspection or testing. When Buyer becomes aware of any latent defect, it shall notify Seller of such latent defect within 30 days from the discovery, and such Goods with a latent defect shall be deemed rejected as of the date of such notice. For all delivered Goods rejected and returned by Buyer, Seller shall, at Buyer's sole option, refund or replace rejected Goods and all the associated costs and expenses shall be borne by Seller in this case. Buyer's payment for the Goods shall not constitute its acceptance of the Goods. Goods rejected and Goods supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. If any of the Goods are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of this Order, then Buyer, at its sole discretion may reject and return such Goods at Seller's expense, require Seller to inspect the Goods and remove nonconforming Goods and/or require Seller to replace nonconforming Goods with conforming Goods or refund Buyer for the price paid. If Seller fails to make the necessary inspection, removal, replacement or repayment of the price, in a time and manner satisfactory to Buyer, Buyer may at its option reject and return the Goods at Seller’s expense, or destroy and ask for refund of the Goods at Seller’s expense, or destroy and ask for refund and procure replacement Goods from another vendor, all at Seller’s expense; Seller shall pay any related costs. Nevertheless, remedies set forth in this point 8. are not exclusive and are in addition to any other remedies Buyer may have in relation to failed delivery of Goods, which Buyer may have as per the applicable laws.
9. WARRANTIES: Seller represents and warrants that: (1) Seller shall have good and full title to any Goods ordered hereunder and is entitled to transfer such title to Buyer; (2) Goods shall be free from any charge or encumbrance; (3) Goods shall be new, free from defect, conformed to the specifications stated in the Order and in compliance with all associated industry standards; (4) Goods shall be in full compliance with all applicable laws, rules, orders or regulations, including, without limitation, laws related to safety, health and hygienic, environmental protection; (5) Goods and/or their packaging will not cause any health and/or safety risk(s), in the event that Seller is aware of said risk(s), or has any reason to believe that Goods and/or their packaging could present said risk(s), Seller shall notify Buyer in writing immediately; (6) Goods shall be fit for Buyer’s intended purposes of use; (7) Goods are packaged and marked appropriately, and also conform to the descriptions stated on packages; (8) Goods shall conform to the samples or prototypes provided by Seller; (9) Goods shall not infringe any trademarks, copyrights, patents, trade secrets and other intellectual property rights of others; (10) Goods shall not be subject to any litigation and/or dispute.
9. 保證：賣方聲明與保證:(1)對產品有完整合法之權利，且有權將此權利移轉予買方；(2)任何第三人就產品均不得對買方主張任何權利，且產品並未經設定任何負擔；(3)產品符合本訂單所列之規格及相關產業標準，且應為無瑕疵之新品；(4)產品符合安全、衛生、環保及相關法令之規定；(5)產品及其包裝對人身安全及健康無造成風險之虞，若賣方知悉或合理推斷有前述風險之虞，應立即以書面通知買方；(6)產品符合買方使用目的 ；(7)產品經過適當包裝及標記，並符合產品包裝之說明；(8)產品應與賣方提供之產品樣品或原型完全相符；(9)產品絕無侵犯他人商標、著作權、專利權、營業秘密等相關智慧財產權；(10)產品並未涉及任何訴訟及/或紛爭。
10. WARRANTY PERIOD: Unless otherwise agreed by both parties in writing, the warranty period shall be at least three (3) years starting from the date of Buyer’s acceptance of products in accordance with Section 8. Notwithstanding the above, if the applicable laws and/or regulations require longer warranty period for Goods or like products and/or services, such longer warranty period shall be applicable to Goods. During the warranty period, Seller shall provide warranty services to Buyer free of charge and be liable to all the associated freights; in case of any product defect or non-conformance of product specification, Seller shall perform repair, replacement, or refund upon returns immediately upon Buyer’s demand. Seller agrees to provide out-of-warranty services for the products.
11. INDEMNIFICATION: In the event that Seller breaches or fails to comply with any terms of the Order, Seller shall indemnify and hold Buyer harmless from and against any and all losses and damages resulting from such breach or failure. Seller shall defend, indemnify and hold Buyer harmless from and against any and all claims, legal proceedings, liabilities, losses, damages, costs and expenses, including, without limitation, the attorneys’ fee, in the event of (i) any infringement of copyright, patent, trademark, trade secret or other intellectual property rights of any third party in connection with Goods of Seller; (ii) any violation of applicable laws, regulations, rules or ordinances by Seller or Goods of Seller; (iii) any breach of the Order and these Terms; or (iv) any negligence or omission of Seller or its affiliates, directors, officers, employees, agents, or other persons acting on behalf of it. Buyer shall have the right, at its sole discretion, to offset any payment obligation (including but not limited to penalty or damages amount) from Buyer to Seller against any payment obligation from Seller to Buyer.
11. 免責：賣方違反訂單或未能遵守訂單任一規定時，應賠償買方因此所受之一切損失且保障買方免於任何因此所生之賠償。於下列情況發生時，，賣方應對任何及所有的索賠、法律訴訟、債務、損失、損害、成本及費用（包括但不限於律師費）立即出面負責解決，並應賠償買方因此所受之一切損失(包括但不限於律師費) 並使買方免受任何損害：(i) 賣方產品涉及侵害著作權、專利、商標、商業秘密或與賣方產品相關的任何第三方的其他智慧財產權；(ii) 賣方或賣方產品違反相關法律、法規、法令或命令時；(iii) 違反本訂單及本條款時；(iv)賣方或其關係企業、董事、經理人、員工、代理人或任何代表其行為之人具有過失時。賣方應給付予買方之款項，包括但不限於違約金及損害賠償等，買方有權逕自本訂單之價款扣抵之。
12. RESTRICTED SUBSTANCES: Seller’s Goods, materials and processes shall comply with any and all governmental and safety constraints on restricted, toxic and hazardous substances.
13. CHANGES: Buyer shall be entitled to change any part of the Order in writing before delivery of Goods, including, without limitation, Goods’ drawings, designs, specifications, materials, packaging, time and place of delivery, and transportation methods. The said change shall be deemed to be accepted by Seller if written objection is not sent to Buyer by Seller within five (5) business days upon its receipt of Buyer’s notification.
14. COMPLIANCE WITH LAWS AND ETHICS: Seller represents and warrants that it is in compliance with and all Goods supplied hereunder have been produced or provided in compliance with the applicable provisions of all applicable laws or ordinances and all related lawful order. Seller also represents and warrants that it will comply with Buyer’s policies and guidelines, particularly the provisions relating to conflict of interests, anti-corruption and anti-bribery. Seller acknowledges that Buyer does not tolerate any form of bribery or corruption in any of its business activities. Therefore, Seller warrants and represents in particular that it will refrain from giving, promising or offering, directly or indirectly, any advantage, whether monetary or non-monetary, to public agents, Buyer’s employees, agents, directors or officers or any other persons, in order to influence Buyer’s actions or decisions. Both parties agree that any breach of this Section will constitute a material breach of these Terms and Buyer will be entitled to terminate the Order immediately and to seek compensation for any and all losses and damages therefrom.
15. CERTIFICATION: Seller shall comply with any and all applicable Buyer quality and other procedures and shall be held responsible for having appropriate systems, processes and documentation in place to ensure compliance to the current standard.
16. CONFIDENTIALITY AND PROPRIETARY INFORMATION: Any and all data, drawings, patterns, designs, specifications and other technical or proprietary information of Buyer (collectively, "proprietary information") directly or indirectly furnished to Seller in writing or otherwise and relating to the Goods or the Order shall remain the property of Buyer, shall in no event become the property of Seller and shall be used only in fulfilling the obligations imposed by the Order. Seller shall consider all such proprietary information to be confidential and shall not duplicate or disclose it to others, except as required by law. The provision by Buyer to Seller of any proprietary information shall not be construed as, and in no event shall constitute, a grant or transfer of any express or implied rights, title or interest in, to or under any of Buyer’s proprietary information. Any confidential information of Seller disclosed to Buyer in connection with the Order shall be clearly marked or otherwise identified as such at the time of disclosure, and Buyer shall not duplicate or disclose any such confidential information to others, except as required by law or agreed to in writing by Seller.
17. WORK ON BUYER'S PREMISES: If Seller's work under this Order requires Seller to be on the premises of Buyer or at Buyer’s direction, Seller will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of Buyer.
18. INSURANCE: Seller will maintain insurance policies with such coverage and in such minimum amounts as may be reasonably requested by Buyer or (to the extent directed by Buyer) Buyer’s customers, in each case naming Buyer and its affiliates and Customers as “additional insured” as requested by Buyer.
19. BUYER’S PROPERTY: Any and all molds, tools, dies, jigs, fixtures or similar items ordered herein or delivered to Seller by Buyer shall become and remain the property of Buyer, shall be used in the manufacture of articles for Buyer exclusively. Such property, and whenever practical, each individual item thereof, shall be plainly marked as Buyer’s property. While Buyer’s property is in possession of Seller and until Seller delivers Buyer’s property to Buyer, Seller bears any and all risk of loss and damage thereto. Seller will be responsible for the cost of repairing or replacing Buyer’s property if damaged or destroyed regardless of cause or fault. Any special tooling, the full cost or a substantial portion of the cost of which is included in the price of this Order, shall constitute the property of Buyer and shall be returned to Buyer, or otherwise disposed of at Buyer’s request, at Seller’s expense upon completion of this Order.
20. TERMINATION AND CANCELLATION: Unless otherwise agreed by both parties in writing, Buyer may cancel or terminate the Order in part or in whole prior to the delivery of Goods without any liability to Seller. In the event of any default or breach of the Order by Seller, Buyer shall be entitled to cancel or terminate the Order in part or in whole without any liability to Seller.
21. ASSIGNMENT AND SUBCONTRACTING: Seller shall not assign or subcontract, in whole or in part, its rights or obligations under these Terms and Order without the prior written consent of Buyer.
22. DELIVERY SCHEDULE: Unless otherwise agreed in writing, Seller will not make production arrangements in excess of the amount or in advance of the time necessary to meet Buyer's delivery schedule. Goods shipped to Buyer in advance of schedule may be returned to Seller at Seller's expense.
23. FORCE MAJEURE: Neither party will be responsible for delays resulting from causes beyond the reasonable control of such party, including without limitation fire, explosion, flood, war, strike, or riot, provided that the nonperforming party uses commercially reasonable efforts to avoid or remove such causes of nonperformance and continues performance under these Terms and Order with reasonable dispatch whenever such causes are removed.
24. PUBLICITY: Seller may not use the names of Buyer, its affiliates or its products or any signs, markings or symbols from which a connection to Buyer may, in Buyer’s sole judgment, be reasonably inferred or implied, in any manner whatsoever without Buyer’s prior written consent, which may be withheld in Buyer’s sole discretion.
25. DOCUMENTATION: It is agreed that all technical documentation and other literature necessary for the proper use of the Goods or services will be provided to Buyer with the Goods or services, unless otherwise directed by Buyer, and there will be no additional charge.
26. GOVERNING LAW, VENUE:
26.1 If the Buyer is Lotus Pharmaceutical Co., Ltd., the Order and the Terms shall be governed by the laws of the Republic of China (Taiwan), without regard to its conflicts of laws principles and United Nations Convention on Contracts for the International Sale of Goods. All claims, disputes, lawsuits or actions relating to the Order or the Terms must be brought and heard in the Taiwan Taipei District Court for the first instance.
26.2 If the Buyer is an Affiliate existing under the laws of Korea, the Order and the Terms shall be governed by the laws of Korea, without regard to its conflicts of laws principles and United Nations Convention on Contracts for the International Sale of Goods. All claims, disputes, lawsuits or actions relating to the Order or the Terms must be brought and heard in the Korea Seoul Central District Court.
26.3 If the Buyer is an Affiliate existing under the laws of jurisdictions other than the Republic of China (Taiwan) or Korea, the Order and the Terms shall be governed by the laws of Singapore, without regard to its conflicts of laws principles and United Nations Convention on Contracts for the International Sale of Goods. All claims, disputes, lawsuits or actions relating to the Order or the Terms must be brought and heard in the Singapore International Arbitration Center and in accordance with its arbitration rules for the time being in force. The seat of the arbitration shall be Singapore. The Tribunal shall consist of three arbitrators. The language of the arbitration shall be English.
27. SURVIVAL: Seller’s obligations under Sections 2, 8, 9, 10, 11, 14, 16, 18, 19, and 26 will survive any termination of this Order.
27. 繼續有效：賣方第2, 8, 9, 10, 11, 14, 16, 18, 19及26條的義務，將在本訂單終止後繼續有效存在。
28. WAIVER; MODIFICATION: Either party's failure to insist upon full performance of any of the terms, conditions or specifications hereof or to exercise any rights or remedies hereunder shall not thereafter be deemed a waiver of the same or of any other provisions or privileges hereunder. This Order can be modified or rescinded only by a writing signed by authorized representatives from both parties.
29. SEVERABILITY: If any provision of these Terms shall be held to be illegal or unenforceable, this provision shall not affect any other provisions contained in these Terms.
30. ENTIRE AGREEMENT: Except as set forth in Section 1 of the Terms and Order, the Terms and Order constitutes the entire agreement with respect to the subject matter hereof between Seller and Buyer. Without Buyer’s prior written consent, any modification to the Terms and Order by Seller shall be void and null.