Agreement
This Agreement (the “Agreement”) dated as of [***] 2015, is entered into between A Company Inc., having its principal office at [***] (“A Company”), and B Company, having its principal place of office at [***](“B Company”).
WITNESSETH
Whereas, B Company has previously engaged A Company for the manufacture of certain Products (defined below) by means of purchase orders and confirmations, pursuant to which United States Dollar [***] (US$[***]) has been past due on [Date] (the “Overdue Payment”), and certain purchase orders amounting to United States Dollar [***](US$[***]) were placed but suspended from delivery due to the insolvency petition B Company filed with [Court] on [Date] ([Reference No.]) (the “Pending Orders”).
丘律师解说（下同）：本条款将两家公司在缔结合同前的状态以及法律关系进行定性与总结。
At the request of B Company, A Company agrees to continue supply B Company with the Products subject to the terms and conditions contemplated below:
本条说明以下的合同是为了满足B公司（也就是品牌方）的请求所做的规划，得到代工方的同意，赋予各项权利义务安排的合理性。
Relationship Between A Company and B Company
1. Engagement.
B Company and A Company have entered into certain arrangement by means of purchase orders and other agreements under which B Company engaged A Company to manufacture and to supply certain fitness equipment pursuant to the specifications designated and furnished by B Company, bearing B Company trademark, trade name, trade dress and/or other packaging reference (the “Engagement”, and such fitness equipment, the “Product”). For clarity, the term “Product” would extend to include those inventory manufactured by A Company to meet with B Company’s potential orders and other manufacture pursuant to this Agreement, while the term “Engagement” would extend to include B Company’s engagements of A Company pursuant to this Agreement.
由于双方先前并未签署书面合同，且有尚未支付的货款，因此必须通过对此前双方使用的“代工生产”作出定义，为日后的潜在讼争进行铺垫。
B公司要求缩短交货期限，使得代工方必须要在尚未下单前进行生产，因此将产品的定义从“下单生产的产品”扩展到“为了满足潜在订单”而先行生产的产品，藉以纳入以下授与知识产权的范围。
前述对“代工生产”作出定义是为处理本合同签订前的法律关系，此处延伸到本合同项下的关系。这样安排的目的主要是为日后的潜在讼争进行铺垫。
2. Licensed Manufacture.
B Company hereby acknowledges and restates that A Company has been producing and is granted to produce the Products under B Company’s license all rights, including but not limited to patent, trademark, copyright and other proprietary rights, as required for the manufacture of the Products previously delivered and for all current and future manufacture of the Product under this Agreement, other than those proprietary rights of A Company.
这里主要防范在B公司尚未下单前，A公司即开始生产产品所可能遭遇的知识产权风险。
Change of Shipping Term
3. Subsequent Shipping Term.
Under the Engagement, for purchase orders previously placed and confirmed the shipping term has been [FOB] thirty (30) days of full payment pursuant to each given purchase order. Subject to the terms and conditions stipulated under this Agreement, subject further to A Company’s confirmation given or withheld to each purchase order placed by B Company, A Company agrees to the B Company-proposed amended shipping term to FOB fourteen (14) days of full payment of a purchase order, applicable for orders B Company places with A Company on or after [*] 2015.
本条款系先行划定日后产品采购的正常流程。
4. Additional Risks Undertaken by A Company.
B Company acknowledges that by consenting to continue trading with B Company who is currently under insolvency proceeding under a shortened delivery interval, A Company will be exposed to additional costs, expenses and risks on inventory of the Product, materials and other manufacture arrangements. As consideration, B Company agrees to comply with the terms and conditions contemplated in this Agreement, in particular:
本条款为说明B公司的特殊要求，以备开展接下来的权利义务调整。
(1) It is understood and conspicuously restated that, in all events including any prepayment, the title of the Product will remain with A Company until the actual delivery of the same at the port of destination.
本条款对在运产品的所有权加以约定，以保障A公司权益。
(2) A Company may, from time to time at its discretion, either pursuant to a purchase order or in the absent thereof, make available certain Product at the port of destination to be delivered to B Company or its consignee, against full and immediate payment, including prices, freight, insurance, custom and taxes of any kind, and other reasonable costs and expenses, to expedite the delivery. Under such circumstances, Section 1(1) would remain applicable, while the risk of loss of the Product will shift onto B Company upon receipt by the carrier at the port of loading.
此处重申A公司无订单生产完全符合本合同的安排。此处约定交货港付款赎单，与上述所有权保留条款相互配合。此处将在运货物风险转嫁到B公司。
Covenants and Consents by B Company
5. Overdue Payment.
The Overdue Payment shall not be discharged until B Company makes such payment in full.
本条款目的在系透过本合同再次确认过去债务，先行排除潜在争议。
6. Pending Order.
The Pending Order shall remain in full force effect. Nevertheless, in view of B Company’s insolvency proceeding, A Company will only be obligated to deliver the Products pursuant to such Pending Order against B Company’s full and immediate payment.
在案例中，A公司曾以B公司发生财务危机，行使不安抗辩权，对于某几笔订单始终未出货。本条目的在于对该等订单以及背景予以确认，日后可以再行出货请求B公司付款赎单。
7. Mitigation of Loss at B Company’s Default.
Upon the Default by B Company (defined below), A Company may:
(1) suspend the delivery of en route and inventory Product and offset the price paid against the liabilities that B Company owes to A Company, including but not limited to, and direct, indirect, consequential and incidental damages arising from the Default of B Company (the “Liabilities”);
(2) continue to manufacture the Product (bearing the same marks and packaging) for sale for the purpose of offset against the Liabilities; and may
(3) promote, advertise, offer, and conduct all other ancillary activities selling the Product to any third-party buyers, including but not limited to the current and potential customers of B Company, for the purpose of offset against the Liabilities.
本条款明确B公司违约时A公司的救济权利，特别是第（3）点约定可以将产品在市场换价取偿，给A公司的备料与产能找到新的出路。
8. Default by B Company.
B Company shall be considered in default (“Default of B Company” or “Default”) if B Company lapses any given payment under a purchase order which is confirmed by A Company for more than [fourteen (14) days].
本条款针对前述的效果规定，给违约下了定义。
9. Waiver and Releases.
B Company hereby waives, discharges and releases, to the fullest extend permitted by law, any and all previous, current and future claims against A Company, its subsidiaries, affiliates, and their respective directors, officers, employees, agents, attorneys, advisors, contractors, suppliers, arising out of and/or in relation to the performance pursuant to this Agreement. Where the applicable laws and/or their respective ordinance bar any part of such waiver or its entirety, B Company agrees that it shall not invoke such right or make such claim.
本条款明确只要A公司是依据本合同执行的，B公司方面不得以任何理由对A公司加以主张。
B Company’s Representations and Warranties
10. B Company represents and warrants that, at the execution of this Agreement and continue to the termination by written agreement between both parties:
(1) it has the full power, capacity and authority to enter into and perform this Agreement;
(2) it has taken all the required procedure, meeting, resolution required under the applicable laws and bylaws for the execution and to take effect of this Agreement, and it is thus lawfully bound by all the terms and conditions hereof;
(3) aside from those rights already vested with A Company, it is the title owner of all the required proprietary rights for the Engagement, and has lawfully granted, licensed such rights to A Company for the performance pursuant to this Agreement by the latter; and that
(4) the performance by A Company pursuant to this Agreement did not and does not infringe any right or proprietary interest of B Company or any third-party.
本条款第（1）、（2）项声明与保证事项再确保本合同的效果。第（3）项对于将生产产品的知识产权权属给A公司提供信赖的基础（可抗辩潜在的善意第三方主张），并在第（4）项从反面予以确认A公司履行本合同不会侵害B公司的权利。
Indemnification by B Company
11. B Company agrees to indemnify and hold harmless A Company, its subsidiaries, affiliates, and their respective directors, officers, employees, agents, attorneys, advisors, contractors, suppliers, arising out of and/or in relation to the performance pursuant to this Agreement.
因为A公司与B公司缔结本合同是为了满足B公司的特殊状况与要求，因此A公司（及关系人）因为履行本合同给第三人造成的损害，责任应该由B公司承担。本条款系出于前述目的作出的约定。
Miscellaneous
12. Entirety and Conflicting Terms
This Agreement constitutes the entire agreement between A Company and B Company with respect to the Products and supersedes all previous oral and written agreements, contracts, understandings, and communications between them with respect to the Overdue Payment, the Pending Orders, and controls all orders, supplies and payments of and for the Product.
即便在常用的条款中，都应该注意为客户再三巩固对于前述总结的缔结本合同前法律关系的规划，这就是以预想诉讼发生进行合同撰写的思维。
13. Severability
If one or more of the provisions of this Agreement are deemed void, illegal or unenforceable by the applicable law, the remaining provisions hereof will continue to be in full force and effect.
14. Construction
(1) All words used in this Agreement shall be construed to be of such gender or number as the circumstances require.
(2) The words “including,” “includes,” or “include” are to be read as listing
(3) Where this Agreement states that a party “shall”, “will” or “must” perform in some manner or otherwise act or omit to act, it means that the party is legally obligated to do so in accordance with this Agreement.
(4) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
(5) The terms defined in the singular have a comparable meaning when used in the plural, and vice versa.
(6) Unless otherwise specified, all reference to a “day” shall mean the “calendar day” ending in the time zone of the country where the performance should be made.
(7) The headings to Articles are for ease of reference only and shall have no legal effect.
15. Language
This Agreement is executed in English and Chinese in two (2) counterparts in each language. Both language versions shall be equally authentic. Each party acknowledges that it has reviewed both language texts and that they are substantially the same in all material respects. If there is discrepancy in the understanding of the versions between the parties, the Chinese version shall prevail.
16. Interpretation
In the negotiation of this Agreement, each A Company and B Company has received advice from its own attorney. The language used in this Agreement is the language chosen by the parties to express their mutual intent, and no provision of this Agreement will be interpreted for or against any party because that party or its attorney drafted the provision.
17. Notice
All notices and other communications under this Agreement must be in writing and are deemed duly delivered when (a) delivered if delivered personally or by internationally recognized overnight courier service (costs prepaid), (b) sent by facsimile with confirmation of transmission by the transmitting equipment, or (c) via email; in each case to the following addresses, facsimile numbers or email address and marked to the attention of the individual (by name or title) designated below (or to such other address, facsimile number or individual as a party may designate by notice to the other party):
If to A Company:
Attention: [*]
Address: [*]
TEL: [*]
FAX: [*]
Email: [*]
with a copy to Zhongzi Law Office, Shanghai Branch.
Attention: Esq. Martin Chaoyuan Chiu
Address:
TEL：＋86- 021-61907007
FAX：＋86- 021-61907008
Email: martinchiu@zhongzi.com.cn
If to B Company:
Attention: [*]
Address: [*]
TEL: [*]
Facsimile: [*]
18. Assignment, Successor and Third Party Right.
This Agreement binds and benefits the parties and their respective successors and assigns. Provided that B Company agrees not to, in any event by the operation of law or otherwise, assign such right to any third party without the prior written consent of A Company, and the violation of which would render the assignment void and of no force or effect against A Company.
本条款系为免法律关系更加复杂，禁止B公司将权利转让。
19. Governing Law
This Agreement shall be governed by and construed and enforced in accordance with the laws of [*].
20. Disputes Resolution
The parties agree that any action arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of [*] Court as the court of first instance. If any party seeks judicial enforcement of its rights under this Agreement, the prevailing party in any such action shall be entitled to recover its costs incurred in such action, including reasonable attorneys' fees.
IN WITNESS WHEREOF, each A Company and B Company has caused this Agreement to be executed by its duly authorized representatives and are authorized to bind each to the Agreement. (End of Text)
在通过订单与确认函进行的交易中，准据法问题本来就是律师在头几轮磋商就会用上的武器。本合同同时处理过去发生尚未终结、现在与未来的交易。将本合同的准据法确立，相当于明确了过去未终结交易也应该适用合同准据法（也就是A公司设立国法）。