This is a Manufacturing Agreement written to favor the Client. You attach the product specifications to it as Exhibit A.
Here it is in MS Word format.
Key aspects covered:
1. Manufacturer warrants that the Product furnished will conform to agreed upon specifications, will be delivered on time and will be merchantable, new and free from defects, strictly conforming to all samples.
2. Manufacturer also warrants that it shall have good title to all Products, free and clear of all liens and encumbrances, and shall transfer such title to Client.
3. Manufacturer shall indemnify.
4. Manufacturer must have adequate insurance.
5. In case any units of Product are defective, Client can reject or require replacement, or to cancel any unshipped or unperformed portion of the order, at Manufacturer's expense.
6. Manufacturer will bear any risk of loss, damage or deterioration to Product until receipt by Client of Product conforming to all requirements of the Client.
7. Client can offset any sums due Manufacture against any sums owed to Client by Manufacturer.
8. Client can audit the Manufacturer.
9. Manufacturer agrees not to attempt to steal Client’s contacts or employees.
MANUFACTURING
AGREEMENT
This Manufacturing Agreement (the “Agreement”) is
made and entered into as of the Effective Date set forth below, by and between the
Parties.
The
Parties:
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The Client: ___________________________________________
Address:
______________________________________________
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The Manufacturer: ____________________________________
Address:
______________________________________________
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Effective
Date:
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____________________,
2016
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Term
and Termination:
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This Agreement remains in
effects for two (2) years from the Effective Date, unless extended or
terminated early. This Agreement may be terminated earlier by either Party by
written notice to the other Party if that other Party fails to perform
strictly in accordance with the required delivery dates, Product
specifications or any other material provision of this Agreement or any
purchase order. The Agreement may also be terminated early if the other
party: (a) ceases production; (b) files a voluntary petition in bankruptcy;
(c) has an involuntary petition in bankruptcy filed against it; (d) has a
receiver or trustee appointed for it; (e) makes an assignment for the benefit
of creditors; (f) becomes insolvent; or (g) goes out of business.
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The
Client hereby engages the Manufacturer to provide services to manufacture the
Client’s product(s), and the Manufacturer agrees to provide such services and
goods, agreed to as per following terms:
1.
Product: ____________________ as
per the specifications and other terms attached hereto as Exhibit A which is incorporated
herein by reference and forms a part of this Agreement.
2.
Warranties. Manufacturer warrants that the
Product furnished hereunder will conform to
agreed upon specifications, will be delivered on time and will be merchantable, new and free from defects in material and workmanship, including latent defects, and fit and sufficient for the particular purpose intended. Manufacturer also warrants that the Product shall strictly conform to all samples furnished or specified by Manufacturer to Client, and shall be packaged in accordance with Client's instructions and normal industry standards, and in a manner to withstand transportation hazards without damage. Unless otherwise instructed by Client, Manufacturer shall promptly repair or replace any Product which does not comply with any of the foregoing warranties and return such repaired or replaced Product to Client at Manufacturer's expense. The foregoing warranties shall run for a period of one year from the date of shipment. Manufacturer also warrants that it shall have good title to all Products, free and clear of all liens and encumbrances, and shall transfer such title to Client. All express and implied in law warranties will survive inspection, testing, acceptance and payment. Manufacturer warrants that its performance and the Product furnished hereunder will comply with all applicable U.S. and foreign laws, rules and regulations.
agreed upon specifications, will be delivered on time and will be merchantable, new and free from defects in material and workmanship, including latent defects, and fit and sufficient for the particular purpose intended. Manufacturer also warrants that the Product shall strictly conform to all samples furnished or specified by Manufacturer to Client, and shall be packaged in accordance with Client's instructions and normal industry standards, and in a manner to withstand transportation hazards without damage. Unless otherwise instructed by Client, Manufacturer shall promptly repair or replace any Product which does not comply with any of the foregoing warranties and return such repaired or replaced Product to Client at Manufacturer's expense. The foregoing warranties shall run for a period of one year from the date of shipment. Manufacturer also warrants that it shall have good title to all Products, free and clear of all liens and encumbrances, and shall transfer such title to Client. All express and implied in law warranties will survive inspection, testing, acceptance and payment. Manufacturer warrants that its performance and the Product furnished hereunder will comply with all applicable U.S. and foreign laws, rules and regulations.
3.
Indemnity. Manufacturer shall defend,
indemnify and hold harmless Client, its directors, officers, employees, agents
and successors and assigns, from and against any and all costs, suits, claims,
losses, damages, liens and expenses (including reasonable attorneys’ fees)
arising out of any breach of any of Manufacturer's warranties, breach of
contract, tort (including negligence and strict liability) or any other act or
omission of Manufacturer, or any of its employees, agents, subcontractors or
other representatives.
4.
Insurance. Manufacturer has and will keep
in force adequate comprehensive general liability (including products/completed
operations and contractual liability), and property damage insurance coverage;
and that it will furnish to Client certificates evidencing such coverages and
naming Client as an additional insured if so requested by Client. Such
insurance coverages shall provide primary coverage, and be in minimum amounts
and with carriers satisfactory to Client, and shall not be cancelable without
Client’s prior written consent.
5.
Delivery. Manufacturer shall deliver the
Product according to the schedule outlined in Exhibit A. Delivery of Product on
the required delivery date is an essential part of this Agreement. Manufacturer
will immediately notify Client of any delay in shipment. If Manufacturer fails
to deliver any Product as of the delivery date required hereunder, Client may,
at its option, in addition to any other rights which Client may have hereunder,
require delivery by the fastest method and all charges for any such method
shall be prepaid in full by Manufacturer.
6.
Revocation and Rejection. In case any units of Product
furnished hereunder are found at any time to be defective or otherwise failing
to comply with any of Manufacturer's warranties, Client will have the right,
notwithstanding payment or acceptance, to reject or revoke, to require
replacement or correction, or to cancel any unshipped or unperformed portion of
the order, at Manufacturer's expense. Client may hold any Product pending
instructions from Manufacturer, or Client may return such Product to
Manufacturer at Manufacturer's expense for refund to Client.
7.
Risk of Loss. Regardless of the F.O.B. point,
Manufacturer will hold title to Product and bear any risk of loss, damage or
deterioration to Product until receipt by Client of Product conforming to all
requirements of the Client at the delivery point specified in the order.
8.
Right of Setoff. Client's obligation to make
payment to Manufacturer hereunder is subject to any unsettled claims Client may
have against Manufacturer. Client may offset any sums due Manufacture against
any sums owed to Client by Manufacturer.
9.
Audit.
If requested by Client, the Manufacturer will permit Client or
authorized representatives of Client to examine all pertinent documents, data
and other information relating to the Product, tooling, and the Manufacturer's
obligations under this Agreement. Client shall bear the cost of audit unless it
is determined that Manufacturer is in a breach of this Agreement, in which case
the Manufacturer shall bear the cost of the audit. Manufacturer will:
a.
Provide
the most current financial reports for the Manufacturer and for any related company
involved in producing, supplying, or financing the Product or any of its
components.
b.
Provide
physical access to any facility or process relating to the Product
c.
Cooperate
with audit of any records, facility or process to determine compliance with the
requirements of this Agreement.
10. Non-Circumvention.
a.
Manufacturer
will learn the names, telephone numbers, and email addresses of customers,
business partners, affiliates, investors, borrowers, lenders, agents, or banks
of Client, hereinafter called “Contacts.” Manufacturer acknowledges, accepts
and agrees that the identities of the Contacts will be recognized as exclusive
and valuable assets and trade secrets of Client. Manufacturer agrees to keep
confidential the names of any Contacts introduced or revealed by Client to
Manufacturer, and that Manufacturer, its associates, subcontractors, joint
ventures, partnerships, divisions, subsidiaries, employees, agents, heirs,
assigns, designees, or consultants will not directly or indirectly contact,
negotiate or deal with any of the Contacts without a written permission from
Client to do so for the Term of this Agreement, and two (2) years thereafter.
b.
Manufacturer
will not hire any employees of Client and will not, either directly or
indirectly, solicit, induce, recruit or encourage any of Client’s employees to
leave its employment, or take away such employees, or attempt to solicit,
induce, recruit, encourage or take away employees of Client, either on behalf
of Manufacturer or for any other person or entity.
11. Governing
Law. This Agreement
is made under and shall be construed according to the laws of the State of California without regard
to its conflict of law principles that would result in application of any other
law. Venue over
all disputes shall be in the courts of competent jurisdiction located in
Los Angeles County, CA,
and each of the Parties hereto consents to the exclusive jurisdiction of such
courts (and of the appropriate appellate courts) in any action or proceeding,
waives any objection to venue laid therein and agrees not to plead or claim in
any such courts that such proceeding brought therein has been brought in any
inconvenient forum.
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12. Prevailing
Language.
English shall be the language of communication. In case of any discrepancy
between the English version of this Agreement, specifications or other
documents and any translations, the English version shall prevail.
13. Equitable
Remedies. The
Manufacturer acknowledges that its breach of this Agreement may cause
irreparable damage and agrees that the Client shall be entitled to seek
injunctive relief under this Agreement, as well as any other relief that may be
granted by a court of competent jurisdiction.
14. General
Provisions. Manufacturer
is an independent contractor and nothing in this Agreement will be construed as
establishing an employment or agency relationship between Client and
Manufacturer. Manufacturer has no
authority to bind Client by contract or otherwise. The Manufacturer may not assign this
Agreement without the prior written consent of the Client. This Agreement may
be executed in multiple counterparts, each of which shall constitute a signed
original. Any facsimile or electronic image of this Agreement or writing
referenced herein shall be valid and acceptable for all purposes as if it were
an original. Each provision of this Agreement shall be interpreted in such a
manner as to be effective and valid under applicable law. However, in the event
that any provision of this Agreement becomes or is declared unenforceable by
any court of competent jurisdiction, such provision shall be deemed deleted and
the remainder of this Agreement shall remain in full force and effect.
15. Entire
Agreement. This
Agreement along with exhibit(s) attached is the entire agreement and
understanding between the Parties, and supersedes and merges all prior oral and
written agreements, discussions and understandings between them regarding the subject
matter of this Agreement. No waiver or modification of any provision of this
Agreement shall be binding unless made in writing and signed by an authorized
representative of both the Parties. Any changes in exhibit(s) attached hereto,
when mutually agreed to in writing will be deemed to be attached to this
Agreement with immediate effect going forward, unless agreed to otherwise in
writing.
The Parties hereto by their duly authorized
representatives have executed this Agreement.
[Signature page
follows]
CLIENT:
By:
_____________________________
Name/Title: ______________________
Date:____________________________
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MANUFACTURER:
By:
_______________________________
Name/Title: ________________________
Date:
______________________________
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EXHIBIT A
Delivery Schedule:
X sample units before _____________, 2016
X units before ______________, 2016
X units before ______________, 2016
Payment
Terms:
Deposit of $_____
$______ within x days of receipt of 1000
conforming units.
CLIENT:
By:
_____________________________
Name/Title: ______________________
Date:____________________________
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MANUFACTURER:
By:
_______________________________
Name/Title: ________________________
Date:
______________________________
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