EXHIBIT 4.13
AGREEMENT
THIS AGREEMENT is made and entered into this 10th day of March 2003 by and
between:-
1. J.I.C. Enterprises (Hong Kong) Limited, a corporation duly organized
and existing under the laws of Hong Kong, with its registered office at
15th Floor, China Merchants Tower, Shun Tak Centre, Nos. 168-200
Connaught Road Central, Central, Hong Kong (hereinafter called "the
Customer"); and
2. Zastron Electronic (Shenzhen) Company Limited, a corporation duly
organized and existing under the laws of PRC with its principal place
of business at Gu Su Industrial Estate, Xinan, Baoan, Shenzhen, PRC.
(hereinafter called "Zastron")
The parties agree as follows:-
ARTICLE 1. DEFINITIONS
In this Agreement, the following terms shall have the following meanings:-
(a) "Products" shall mean COG panels and such products, articles or goods
to be agreed upon between the parties from time to time which are
manufactured by Zastron according to the purchase orders placed by the
Customer from time to time and the Specification (as provided in the
next paragraph) for the purpose of exclusive supply to the Customer.
(b) "Specification" shall mean the specification of the Products determined
and confirmed in writing between the parties hereto from time to time.
(c) "purchase order" shall mean a purchase order of the Products given
pursuant to this Agreement.
(d) "Hong Kong" shall mean The Hong Kong Special Administrative Region of
The People's Republic of China.
(e) "PRC" shall mean The People's Republic of China.
ARTICLE 2. SALE OF PRODUCTS
The Customer hereby agrees to purchase from Zastron and Zastron hereby agrees to
sell exclusively to the Customer the Products subject to and upon the terms and
conditions set forth herein. Zastron shall use its best endeavours to supply to
the
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Customer all the quantity of Products described in the purchase order(s) issued
by the Customer according to Article 3 hereof.
ARTICLE 3. PURCHASE ORDERS
3.1 The Customer shall, not less than 90 days before the commencement of
any month (the "Relevant Month"), place purchase orders and forecasts
with Zastron in respect of the Relevant Month and the terms and
conditions of this Agreement shall apply to such purchase orders (if
accepted) and any contracts for the sale and purchase of the Products
concluded pursuant thereto.
3.2 Upon receipt of a purchase orders and if Zastron accepts it at its
discretion, Zastron shall promptly dispatch the duplicate of the
purchase order duly signed by Zastron in confirmation of the purchase
order placed by the Customer. An accepted purchase order shall not be
allocated, changed or cancelled without the prior mutual agreement of
both parties.
ARTICLE 4. PRICE AND PAYMENT
The price and terms of payment of the Products shall be agreed by the parties
hereto from time to time in relation to the related purchase order. The prices
are F.O.B. Hong Kong and payable in HKD dollar and shall include all and any
sales, use, or other taxes in relation to the sale of the Products. The payment
of such prices shall be made in such manner as agreed by the parties from time
to time.
ARTICLE 5. DELIVERY
Zastron shall, after the inspection provided in Article 6.1 hereof, ship the
Products at its own cost and responsibility to the Customer's designated place
on or prior to the date described in the purchase order, provided, however, that
without prejudice to Article 16, Zastron shall not be liable for any delay in
delivery caused by the Customer or by reason out of the control of Zastron.
ARTICLE 6. INSPECTION
6.1 Zastron shall, prior to the shipment of the Products, inspect the
Products whether or not they meet with the Specification and other
quality standard agreed between the parties hereto from time to time
and deliver the Products which pass such inspection.
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6.2 The Customer shall, within seven (7) working days after the delivery of
the Products according to Article 5 hereof, inspect the quality,
quantity and function of such Products to verify that the Products
comply with the Specification and the terms of the contract of sale and
purchase concluded pursuant to the purchase order. The Customer shall
be deemed to have accepted the Products after the Customer has
inspected such Products to the Customer's satisfaction within such 7
working days. In case any defect is found in the Products, Zastron
shall, at the discretion of the Customer and upon notice being given by
the Customer, repair such defect(s) or re-deliver the replacement
Products to the Customer at its own costs and expenses. Rejected
Products shall be returned by the Customer to Zastron and the costs and
expenses incurred therefrom shall be, in case the Customer returns such
Products by means of transportation specified by Zastron, borne by
Zastron. Any and all the Products shall be deemed to have passed the
Customer's inspection unless any notification of failure to the
inspection is made by the Customer within such seven (7) working days.
Only such Products which pass such inspection or which are not
inspected by the Customer within such 7 working days shall be the
subject of the supply contemplated herein and the Customer shall make
the payment to Zastron with respect to such Products.
6.3 The Customer or its representative shall have during the term of this
Agreement the right to enter and inspect Zastron's office, plants,
factory and other facilities at any reasonable time by prior
appointment with Zastron and give Zastron any instruction, if
necessary, for the purpose of quality control and smooth operation of
the manufacture of Products.
ARTICLE 7. TITLE AND RISK OF LOSS
Title to any Products and risk of loss or damage thereto shall pass to the
Customer when the Products pass the inspection by the Customer or is deemed to
have been accepted by the Customer respectively provided in Article 6.2 hereof.
Zastron shall thereafter be relieved from all liabilities for damage to or
claims from any third parties caused by any defects in the Products.
ARTICLE 8. WARRANTY
8.1 Zastron warrants that the Products conform to the Specification and
other requirements with respect to the function and quality requested
by the Customer and accepted by Zastron and that the materials and
workmanship of the Products shall be free from defects for a period of
one (1) year from the date the title to such Products passes to the
Customer. During said one (1) year period,
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Zastron shall repair the defected Products and return them to the
Customer at its own cost and responsibility.
8.2 Notwithstanding anything contained in this Agreement or any of the
purchase orders, in no circumstances shall Zastron be liable, in
contract, tort (including negligence or breach of statutory duty) or
otherwise howsoever, and whatever, the cause thereof (a) for any loss
of profit, business, contracts, revenues, or anticipated savings, or
(b) for any special indirect or consequential damage of any nature
whatsoever.
8.3 Without affecting the generality of Article 8.2, and notwithstanding
anything contained in this Agreement or any of the purchase orders,
Zastron's liability to the Customer, if any, in respect of any purchase
order, in contract, tort (including negligence or breach of statutory
duty) or howsoever otherwise arising, shall be limited to the price of
the Products specified in the relevant purchase order.
ARTICLE 9. RESTRICTION ON MANUFACTURE AND SALE
Zastron shall not sell the Products to any third party without the prior written
consent of the Customer.
ARTICLE 10. CONFIDENTIALITY
Each of the parties hereto agrees to maintain in confidence and not to disclose
to any third party all the information disclosed by the other party to it
hereunder (except to the extent (i) reasonably necessary for such party to carry
out the terms and conditions of this Agreement and any matters ancillary thereto
or (ii) ordered to be disclosed pursuant to any order, decree or judgment made
or issued by any court of competent jurisdiction. Such information and the
confidentiality obligation imposed on the parties hereto shall not include or
extend to the information which:
(a) is already known to the other party at the time of the
disclosure; or
(b) is generally available to public at the time of the
disclosure.
ARTICLE 11. TERM
11.1 This Agreement shall be effective from the date first written above and
shall continue in force for a period of one (1) year and shall be
renewed automatically thereafter on a year to year basis, unless either
of the parties hereto gives the other a written notice of termination
at least ninety (90) days
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prior to the expiration of the original one (1) year period or any
extension thereof.
11.2 Notwithstanding the provision of Article 11.1 and Article 12, the
provisions of Article 8, Article 9 and Article 10 shall survive the
termination or cancellation of this Agreement.
ARTICLE 12. CANCELLATION AND TERMINATION
12.1 In case either party breaches or defaults any of the provisions hereof,
the other party may give to such breaching or defaulting party written
notice of such breach or default, and if such breaching or defaulting
party does not effect an adequate remedy thereof within thirty (30)
days after the date of dispatch of said notice, this Agreement shall be
terminated at the option of the complaining party by the dispatch of
written notice to that effect to such party within seven (7) days from
the expiration of the said thirty (30) days period.
12.2 Upon the occurrence of any of the following events or circumstances,
either party may terminate this Agreement by written notice to the
other party:-
(a) in case the other party attempts to assign or transfer the
rights or obligations hereunder without the prior written
consent of such party;
(b) if any distress or execution shall be levied upon any of the
other party's goods and remain unsatisfied for a period of 5
days;
(c) if the other party offers to make any arrangement with its
creditors;
(d) if the other party is unable to pay its debts as they fall
due;
(e) if any resolution or petition to wind up the other party
(other than for the purpose of amalgamation or reconstruction
without insolvency) shall be passed or presented;
(f) if a receiver or manager shall be appointed over the whole or
any part of the other party's business or assets;
(g) if the other party shall suffer any proceedings analogous to
those proceedings described in sub-paragraphs (b), (e) or (f)
above under any foreign law.
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ARTICLE 13. FORCE MAJEURE
No party shall be liable to the other party for inability, default or failure of
performance hereunder due to force majeure events, which shall include, but not
limited to, acts of God, storms, shipwreck, war, riots, strike, lockout,
industrial action, fire, flood, earthquake or other such unforeseeable calamity,
any law, rule, regulation or governmental action or other like events beyond the
reasonable control of the parties; provided that such party shall make every
reasonable effort to remove the obstacle and to resume performance at the
earliest practicable time.
ARTICLE 14. SETTLEMENT
The parties will endeavor to settle amicably any and all disputes which may
arise under this Agreement.
ARTICLE 15. NON-WAIVER
Failure by either party to enforce any provision of this Agreement will not be
deemed a waiver of future enforcement of that or any other provisions.
ARTICLE 16. SEVERABILITY
In the event that any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, the parties hereto agree
that such holding shall not invalidate or render unenforceable any other
provision hereof.
ARTICLE 17. ASSIGNMENT
Neither party shall assign, transfer or otherwise dispose of this Agreement or
any rights or obligations hereunder to any third party without the prior written
consent of the other party.
ARTICLE 18. NOTICES
All notices, certificates or other communications hereunder shall be deemed
given when delivered by hand, sent by overnight courier, or sent by certified or
registered mail, postage prepaid, return receipt requested addressed to the
address first above mentioned.
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Each party hereto may by fax notice or by such other notice described hereunder,
designate any further or different address to which subsequent notices, or other
communications shall be sent without any requirement of execution of any
amendment to this Agreement.
ARTICLE 19. COUNTERPARTS
This Agreement may be executed in counterparts by the parties hereto, and each
such counterpart shall be considered an original and all such counterparts shall
constitute one and the same instrument.
ARTICLE 20. GOVERNING LAW
This Agreement and the rights of the parties hereunder shall be governed by and
construed in accordance with the laws of Hong Kong. Each of the parties hereto
hereby submits to the non-exclusive jurisdiction of the courts of Hong Kong.
ARTICLE 21. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof, and supersede and replace all prior or
contemporaneous understandings or agreements, written or oral, regarding such
subject matter.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement as of the date first above written.
Signed by ) For and on behalf of
) J.I.C. ENTERPRISES (HONG KONG) LIMITED
For and on behalf of )
J.I.C. Enterprises (Hong Kong) Limited ) /s/ Ivan Chui
) --------------------------------------
in the presence of:- [ILLEGIBLE] ) Authorized Signature 23HA
Signed by )
)
For and on behalf of )
Zastron Electronic (Shenzhen) Company ) /s/ Joseph Li [COMPANY STAMP]
Limited )
)
in the presence of:- [ILLEGIBLE] )
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