TRADING TERMS AGREEMENT
EXHIBIT
10.1
Confidential
treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to
a confidentiality request.
Omissions are designated ******. A
complete version of this exhibit has
been filed separately with the Securities and Exchange Commission.
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Account
Number
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209282
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Alpha
Code
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Shaded
Areas
Office
Use Only
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In this
Trading Terms Agreement Wesfarmers Industrial & Safety (WIS) and the Vendor
are references to the companies set out below
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WIS:
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J Xxxxxxxxx & Son Limited
(ABN 43 000 010 300) Trading as Blackwoods, Bakers
Construction & Industrial, Blackwoods Xxxxxx, Motion Industries, Xxxxxxxx Fasteners Protector Alsafe Pty Ltd (ABN
28 007 000 624) Trading as Protector
Alsafe
Bullivants Pty
Limited (ABN 47 087 887
072) Trading as
Bullivants
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Vendor
or Lakeland:
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||||
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Vendor’s
ABN
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NA
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Period
of Terms:
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Start:
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1st
January 2008
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End:
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31st
December 2008
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Following
the end date of the Terms, the Terms will remain in place until
renegotiated or terminated. Both parties have the right to
terminate the agreement after the end date with a notice period of 3
months.
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The
Persons involved in this commercial agreement
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WIS
Representative
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Vendor
Representative
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Xxxxx
Xxxxxx, Xxxxxxxx Xxxxxxxx
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Xxxxxxx
X Xxxxxxxx
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On
Behalf of Wesfarmers Industrial and
Safety |
On
Behalf of Vendor
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|||
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Name:
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Xxxx
Xxxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxx
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Title:
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Strategic
Sourcing Manager
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Title:
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International
Sales Manager
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Signature:
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/s/
Xxxx Xxxxxxxxx
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Signature:
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/s/
Xxxxxxx X. Xxxxxxxx
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Date:
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21st
January 2008
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Date:
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16th
January 2008
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Please
ensure that all pages of this agreement are initialed.
Acceptance of
Terms
The
Vendor agrees to provide goods and or services specified in the APPENDICES to
Wesfarmers Industrial and Safety (“WIS”) for the term of this Trading Terms
Agreement.
Payment
Terms
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Number of
Days
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45
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Settlement
Discount
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The date
of payment for receipted goods will be calculated from the end of the month in which the invoice
is received by WIS. The settlement discount is based upon the
total receipted value (including GST) excluding Rebates and Customer Price
Support.
Unconditional
Rebate
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0%
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Unconditional
Rebate will be calculated on the total dollar value of purchases receipted
exclusive of GST. GST will be added at time of
invoicing. WIS will provide you with information to claim your GST
input tax credit.
The
amount of Unconditional Rebate will be calculated every month end. The amount
owing will be deducted off the Vendors trading account, details of which will be
shown on the remittance notice.
Long Term Incentive (LTI)
Rebate
******
Promotional and or
Advertising Fund (Fund)
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******
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of
purchase receipts for a 12 month
period up to 500,000USD. |
OR
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whichever
is the greater
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The
Vendor agrees to provide a Fund for each 12 month period. This Fund
is intended for normal promotional and or advertising events which occur during
the course of trading with WIS. Significant national projects are
excluded from this Fund. WIS and the Vendor will discuss funding of
such projects separately.
The Fund
will be calculated on the total dollar value of purchases receipted exclusive of
GST. WIS will work with the Vendor to allocate the Fund
accordingly. Where appropriate all Fund allocations are to be
authorised by the persons or position named below.
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NAME
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POSITION
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Company
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EMAIL
ADDRESS
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Xxxxx
Xxxxxx Xxxxxxxx
xxxxxxxx |
NCM
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Protector
Alsafe
Blackwoods
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Xxxxx.xxxxxx@xxxxxxxxxxxxxxx.xxx.xx
Xxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx.xx
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Xxxxxxx
X.
Xxxxxxxx Xxxxx
Xxxxx
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International
Sales Manager Director
of
Sales and Marketing, Asia Pacific |
Vendor
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XXXxxxxxxx@xxxxxxxx.xxx
xxxxxxx@xxxxxxxx.xxx
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The
amount of Fund will be calculated every month end and automatically
debited from the Vendor trading account.
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YES
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Details
will be shown on the remittance notice.
GST will
be added to all Fund claims and WIS will provide information to allow the
Vendors to claim GST input tax credit
The
balance of any unused Fund will be calculated at the end of each 12 month
period. An invoice will be issued and the amount owing will be
deducted off the Vendors trading account, details of which will be shown on the
remittance notice.
Customer Price Support
(CPS)
CPS is a
process allowing WIS and the Vendor to agree special prices for major customers
and or contracts for a defined period of time. When an opportunity
arises, WIS will discuss with the Vendor before agreeing on CPS for a range of
products.
When the
Vendor agrees to CPS, the special prices and duration are formalised by signing
the CPS Contract.
The
Vendor agrees that any CPS Contract given to WIS is additional to these trading
terms and in no way impacts on rebates, bulk buying, promotional pricing, funds
and or any other pricing arrangements made with any part of WIS.
Minimum Order Values (MOV)
& Freight Charges
Unless
otherwise specified, all purchase order deliveries, including promotional goods,
will be Free Into Store (FIS) regardless of location.
A MOV is
the sum total of all lines on any given purchase order. WIS can only
accept MOV in dollars; at this stage minimum order quantities can not be
accommodated due to incumbent systems.
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MOV
($)
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Freight
Charge ($)
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Area
Affected
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Delivery
This
clause looks to address the challenges of meeting the delivery expectations of
our customers. The Vendor will make all reasonable efforts to meet
the standards specified.
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The
Vendor guarantees that the number of days from the time the Vendor
receives a purchase order from WIS to the day the goods arrive at the
delivery address specified will be no more than specified
below.
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|||||
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Qingdao
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|||||
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24
days
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days
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days
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days
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days
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days
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Late
delivery of the goods to the specified address will entitle WIS to deduct
the % amount shown from the total invoice value.
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0%
< 7 days
0%
> 7days
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||||
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The
Vendor agrees to provide an invoice and Proof of Delivery with all
deliveries made to WIS trading locations. The information on
the invoice will include the WIS Part Number, a cost equal to that
specified on the purchase order, Description, Quantity supplied, Unit of
measure, the WIS Purchase Order Number, an invoice number, Vendor name,
delivery address
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YES
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The
Vendor acknowledges that purchase orders delivered directly to customer
locations are readily identifiable as having an order number ending in
‘DS’ and the
notation ‘Do Not Send
Invoice with Goods, Fax to Originating Branch’ clearly stated on
the purchase order. The Vendor is responsible for ensuring that
the invoice and proof of delivery documentation is faxed to the
originating branch within 24 hours of delivery to the
customer.
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YES
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WIS
and the Vendor has a ‘recipient created tax invoice’ arrangement in
place
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NO
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Returning
Goods
The
following applies to goods ordered by WIS from the Vendor
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Where
goods have defects, are damaged or fail to meet the agreed specification
the Vendor agrees that WIS is entitled to return the goods to the Vendor
using a ‘freight on’ arrangement to the agreed location. WIS
will be entitled to recover all freight costs associated with a
return.
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YES
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Sale or
Return. All new product introductions will be reviewed
after 6 months. Where the sale of such goods fall short of
agreed targets, WIS will work with the Vendor to improve the
situation. If the performance continues to fall short of agreed
sales target after a total of 12 months, WIS is entitled to return the
remaining new products to the Vendor. WIS will incur the cost
of freight.
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YES
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Following
approval from the Vendor low value goods can be disposed
of
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YES
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Where
WIS has returned goods or new products, the Vendor agrees to refund the
total value for those goods or new products.
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YES
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The
Vendor will incur all costs associated with any product recall of goods
purchased through any WIS business. The Vendor will reimburse all
reasonable costs incurred by WIS.
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YES
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Name
& Address to return
Faulty/Damaged/Recalled
or
Returned Stock |
Telephone
Number(s) |
Name
& Address of
Vendor’s Nominated Transport
Company
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Telephone
Number(s) |
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Weifang
Lakeland Safety Products Co. Ltd
Xx.000,
XxxXx Xxxx, Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxxxxxx,
P.R.China
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86
536 4250506
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Account transaction
Inquires
WIS and
the Vendor will at all times make best endeavours to resolve discrepancies and
or disputes over Invoice, rebate, Promotional & Advertising Funds and
CPS. Upon request, WIS and the Vendor have the right to audit the
accounts by using 3rd Party,
independent auditors.
Communication
of day to day issues can be facilitated by utilising the following email
addresses
1.
General invoice payment enquires xxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx.xx
2. Rebate
enquires xxxxxxx@xxxxx.xxx.xx
3.
Promotional & Advertising enquires xxxxxxxxx@xxxxx.xxx.xx
4.
Customer Price Support enquires xxx@xxxxx.xxx.xx
For those
that require postal services
Rebates
Officer,
Wesfarmers
Industrial and Safety, XX Xxx 000, Xxxxxxxxx Xxxx, XXX 0000
GST (Goods and Services
Tax)
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1.
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Where
any supply under this agreement is or becomes subject to GST, an amount
equal to the GST paid or payable in respect of the supply shall be added
to the amount of consideration paid or payable for that supply under this
agreement.
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2.
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The
provisions contained in clause 1 apply notwithstanding any other clause of
this agreement whatsoever.
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3.
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Each
party agrees to do all things, including providing invoices and other
documentation, that may be necessary or desirable to enable or assist the
other party to claim any credit, set-off, rebate or refund in relation to
any amount of GST paid or payable in respect of any supply under this
agreement.
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4.
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In
this clause:
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a.
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The
expression “GST” means any tax in the nature of a tax on or on the supply
of goods, real property, services or other things (or similar tax) levied,
imposed or assessed by the Commonwealth of Australia or any State or
Territory of Australia, which may operate at any time during the term of
this agreement, other than any interest, fine, penalty, fee or other
payment imposed on or in respect of the
above.
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b.
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The
expression “supply” means any form of supply whatsoever and includes any
supply within the meaning of any Commonwealth, State or Territory
legislation imposing or relating to the imposition of
GST.
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5.
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Adjustment
note(s) in the approved format will be provided to support the GST amount
(the equivalent of one eleventh paid) of rebate/ LTI/ Fund/ discount/
incentive paid under this
agreement.
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Vendor’s Head Office
Details
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||||||||
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Office
Address
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Search
Term
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|||||||
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Street:
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Xx.000,
XxxXx Xxxx, Xxxxxxx Xxxxxxx
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|||||||
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Suburb:
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Anqiu
City
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State:
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Shandong
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Post
Code:
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262100
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Country:
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China
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Postal
Address
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PO
Box:
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Xx.000,
XxxXx Xxxx, Xxxxxxx Xxxxxxx
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Suburb:
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Anqiu
City
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State:
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Shandong
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Post
Code:
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262100
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Country:
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China
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Telephone
Number 1:
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00
000 0000000
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Fax
Number:
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00
000 0000000
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Telephone
Number 2:
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00
00 00000000
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Email:xxxx@xxxxxxxx.xxx
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Vendor
Contact Persons
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Chief
Executive:
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Xxxxx
Xxxx
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Phone
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Email:
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xxxxxx@xxxxxxxx.xxx
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General
Manager:
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Xxxxxxx
Xxxxxxxx
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Phone
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0
000 0000000
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Email:
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xxxxxxxxxx@xxxxxxxx.xxx
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National
Sales Manager:
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Xxxxx
Xxxxx
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Phone
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00
00 00000000
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Email:
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xxxxxxx@xxxxxxxx.xxx
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Invoice
enquiry contact
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Xxxxxxx
Du
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Phone
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00
000 0000000
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Email:
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xxxx@xxxxxxxx.xxx
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Rebate
contact:
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Xxxxx
Xxxxx
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Phone
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00
00 00000000
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Email:
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xxxxxxx@xxxxxxxx.xxx
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Fund
contact
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Xxxxx
Xxxxx
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Phone
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00
00 00000000
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Email:
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xxxxxxx@xxxxxxxx.xxx
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CPS
contact
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Xxxxx
Xxxxx
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Phone
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00
00 00000000
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Email:
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xxxxxxx@xxxxxxxx.xxx
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Banking and Payment
Details
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Banking
Country:
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China
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Bank
Name:
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China
Construction Bank
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Bank
Address:
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Weifang
branch
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BSB
Number:
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NA
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Account
Number:
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******
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Account
payments can be sent by
electronic
funds transfer
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Reconciliation
account
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Sort
key
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SPECIAL
CONDITIONS
Exclusivity
Lakeland
will appoint WIS as its exclusive distributor for Australia and New
Zealand. Lakeland will not offer its products to other distributors
for sale into these markets.
Products
Only CE
certified products will be introduced into the Australia and New Zealand
markets, these products include:
******
******
Complete
Lakeland product descriptions are provided in Xxxxxxxx 0
Xxx-xxxxxxxxxx
Xx is
Lakeland intention to continue to develop new protective apparel fabric and
garment designs for the global protective apparel market. To that
end, Lakeland will on occasion seek input from WIS concerning new
products. In order to protect the novelty of these developments and
preserve patent rights, Lakeland will have to share this information under a
non-disclosure agreement (Appendix 4).
Price
Considering
the maturity and size of the limited use coverall market in Australia and New
Zealand, Lakeland will work with WIS, on an ongoing basis, to provide
the most competitive pricing possible to allow WIS to penetrate and increase
market share in these markets.
Proposed
pricing for the above products is attached in Appendix 2.
Marketing
Support
Lakeland
will provide product literature and technical information for its products to
WIS. This information will include, but is not limited to, artwork
for advertisements, posters, product testing (chemical and physical), end user
information and technical support regarding test methods, standards and
regulations.
Product
Training
Lakeland
will provide periodic product training to familiarize WIS sales personnel and
product specialists with market developments and Lakeland
products Initially, Lakeland will schedule a 2 week trip to
Australia to conduct product training. This trip is tentatively
scheduled for the weeks from late Feb to early March. Training will
include product descriptions, applicable standards, end user applications for
the products, competitor analysis versus Lakeland products and product strengths
and weaknesses from an end user’s perspective.
The Usage of Lakeland
Brand
Lakeland
Industries (the Vendor) authorizes WIS to use Lakeland logos, registered
trademarks, and product images for promotion of Lakeland branded products.
Lakeland will provide logos and artwork to WIS on a CD for distribution to its
branches if necessary, however these images are available to Lakeland authorized
distributors on the Lakeland web site at xxx.xxxxxxxx.xxx.
Instructions
for access to the images via the Lakeland web site are as follows:
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1.
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Go
to xxx.xxxxxxxx.xxx
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2.
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On
the left-hand side of the page select a country or region by clicking on
the appropriate flag.
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3.
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On
the left-hand side of the page is a link titled, “Lakeland
Images”.
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4.
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Click
on the “Lakeland Images” link, and after reading the conditions of use,
click the “I Accept” button at the bottom of the page. The
required Lakeland Logo will automatically download.
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5.
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A
window will pop up requesting login information. Your login
information is as follows:
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User
ID:
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******
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Password:
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******
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Enter
the login information and a new window will open.
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6.
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A
list of available products and their images will show up. Click
on the product are interested in and then the style number, and
download.
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Use of
Lakeland Logos and Trademarks should be in such a manner as to make ownership of
the marks clear. An Attribution statement at the bottom or end of
documents is adequate for this purpose in most cases.
GENERAL
CONDITIONS OF PURCHASE
Acceptance of
Conditions
These
conditions apply to all purchase orders and transactions between WIS and the
Vendor. A purchase order is an offer by WIS to purchase goods and or
services, a contract shall be formed on acceptance of the order by the
Vendor. The following acts are considered conclusive acceptance by
the Vendor; (a) signing and returning a copy of the purchase order (b)
electronic acceptance or confirmation (c) delivery of goods against the purchase
order.
Except
where WIS and the Vendor agree in writing, this Trading Terms Agreement and
Conditions will apply to the exclusion of any conditions appearing in any other
trading document.
Delivery
The
vendor will deliver the goods in accordance with the prices and delivery
schedules stated on the purchase order. It is the responsibility of
the Vendor to comply with all transport legislation and
regulations.
All goods
shall be packaged securely and in a manner which prevents damage during the
movement of goods. Each delivery must be accompanied with a delivery
document which specifies the name of the Vendor, purchase order number,
description of goods, unit of measure, the quantity and or volume plus the
delivery address. As per the Australian Standard Packing Comp.ppt
document
All goods
are to be supplied on time and in full. The respective WIS Branch
should be notified of potential delays caused by stock outs and or
shortages. Where the Vendor is unable to meet the specified delivery
schedule it will be considered a breach of contract allowing WIS the right to
cancel the purchase order without any expense to WIS.
Ownership and
Risk
Title to
and property in the goods passes to WIS when physically received and receipted
by WIS or delivered to a WIS customer where WIS specifies the customer address
as the delivery address
Quality
The
Vendor grants WIS the right to inspect any goods at anytime. All
goods and services shall be supplied in accordance with the specification
agreed. If the Vendor fails to deliver any of the goods or services
in accordance with the agreed specification then WIS has the right to reject the
full quantity.
Where
goods and services have been rejected, WIS will work with the Vendor to remedy
the situation. The Vendor will be responsible for all costs
associated with replacing the rejected goods and services.
Warranties and Obligations
of the Vendor
The
Vendor warrants that the goods and materials used in the manufacture or
performance of any work related to the goods will be of merchantable quality,
fit for purpose, conform to all specifications, and will comply with all
applicable international and local laws, regulations and standards.
The
Vendor guarantees the goods are free from defects and remain free from defects
(including defects in design, materials, workmanship and installation) or faults
for a period of no less than 12 months from the day of receipt by
WIS.
In
addition, the Vendor;(a) shall provide WIS with the applicable manufacturers
warranty (b) upon request by WIS will provide written evidence of the assignment
to WIS the manufacturer’s warranty (c) must ensure all dangerous goods and
hazardous substances be identified in accordance with the relevant consumer and
or work cover authority labelling guidelines. An accurate and up to
date material safety data sheet (MSDS) must be made available at the vendor’s
cost. It is the responsibility of the Vendor to provide WIS with MSDS
with the initial purchase and on future occasions as required.
Items
that have the potential of causing harm to individuals or the environment must
be subject to a risk assessment if so requested by WIS.
Price and
Payment
Price(s)
for the products supplied will be fixed for at least the Period of the Terms end
date, unless specified otherwise.
The
price(s) for the goods and services will be specified in the purchase order and
shall remain fixed unless otherwise notified by the Vendor. It is the
sole responsibility of the Vendor for notifying WIS of any inaccuracy and to
remedy it.
Where an
invoice cost is different from the purchase order, WIS has the right to pay only
the value specified on the purchase order.
Unless
agreed otherwise, when the Vendor supplies goods without an invoice, WIS will
contact the Vendor to request an invoice. If the Vendor fails to
forward an
invoice
within the same working day, WIS will receipt the goods and will not release
payment until such time that the invoice is supplied.
It is the
Vendors responsibility to reconcile the WIS accounts. Reconciliations
are required on a monthly basis. WIS will not be liable for
outstanding invoices and claims that date back (6) six more or
months. It is the Vendors responsibility to constantly pursue
settlement of any outstanding invoices or claims before (6) six or more months
elapses.
Any
application by the Vendor to adjust prices must be made in writing to WIS
Sourcing Managers, giving no less than 90 days notice, shall be supported with
documentary evidence justifying the adjustment and will not take affect until
WIS has accepted the adjustment in writing.
Indemnity &
Insurance
The
Vendor shall indemnify WIS from any liability, loss, cost, damage or injury in
consequence of (a) any defect in design, parts or materials or workmanship of
goods or (b) any breach of the terms of this Agreement by the or (c) any breach
of any law applying to the provision of goods or services under this Agreement
or (d) negligence, wilful default or wrongful act or omission of the Vendor, its
employees, sub-contractors or agents, except where any such liability, loss,
cost, damage or injury is caused by the negligence of WIS.
The
Vendor agrees to maintain, at its own cost, all necessary
insurance. Upon request by WIS, the Vendor agrees to provide evidence
of such insurance.
Breach and
Termination
WIS shall
be entitled to terminate the Agreement immediately upon notice to the Vendor if
(a) the Vendor has committed a breach of this Agreement and the Vendor fails to
remedy such default after 7 days of notice or (b) if there is breach of warranty
by the Vendor or (c) the Vendor has a receiver, administrator or manager
appointed to it or any of its assets as the Vendor becomes insolvent as defined
in the Commonwealth Corporations Act or commits any act of bankruptcy or goes
into liquidation or becomes the subject of any analogous
proceedings.
Intellectual Property and
Confidentiality
All
intellectual property rights including patents, trade marks, service marks,
design rights, copyright arising from work conducted or prepared by the Vendor
for WIS or in any tools or equipment supplied by or funded by WIS shall belong
to WIS and the Vendor agrees to do all reasonably required to secure the
granting of such rights to WIS. Patents, trademarks, service marks, design
rights and copyrights owned or
applied
for by the vendor prior to the effective date of this agreement shall remain the
property of the Vendor.
All
information and documents provided to the Vendor by WIS, or otherwise acquired
by the Vendor relating to WIS shall be kept confidential by the Vendor and shall
not be used by the Vendor other than for the purposes of the purchase
order. Unless agreed to the contrary in writing by the WIS Sourcing
Manager, disclosure of these Trading Terms is not permissible to any third party
or WIS employ.
The
Vendor shall make no reference to WIS in its advertising, literature or
correspondence without WIS written agreement. Nothing in a purchase
order shall entitle the Vendor to use any name or trademark or logo of
WIS.
Additional
to this Condition is a Non-Disclosure Agreement signed by both WIS and the
Vendor (Appendix 4). Where there is a conflict, the Intellectual
Property and Confidentiality Condition takes precedence.
Assignment and
Subcontracting
The
Vendor may not assign or transfer its rights or obligations under this Agreement
(or any part of them) to any other person without receiving WIS prior written
consent (which may be granted on such terms as WIS considers
appropriate).
The
Vendor must not, without the prior written approval of WIS, subcontract the
performance of any part of this Agreement. The appointment of
subcontractors by the Vendor shall not relieve the Vendor from any or all of its
liabilities or obligations under this Agreement nor create any liability or
obligation on WIS. The Vendor shall be liable for the acts and omissions of its
subcontractors and employees, officers, agents and contractors of subcontractors
as if they were acts and omissions of the Vendor. Any consent to subcontract
granted by WIS may be conditional upon (without limitation) the Vendor obtaining
from the subcontractor evidence of appropriate insurance and appropriate
expertise and a grant of the corresponding Intellectual Property rights granted
to or vested in WIS under this Agreement.
Code of Ethics &
Conduct
The
Vendor acknowledges that WIS has a Code of Ethics & Conduct to guide and
promote high ethical and professional standards affecting our behaviours around
people’s well being, safety, and the environment. To this end, in
supplying goods and or services to WIS the Vendor agrees that it shall not
knowingly take any action which violates the WIS Code of Ethics &
Conduct.
Governing Law and Dispute
Resolution
The
Agreement and any supply under the terms thereof shall be governed by the laws
in place in New South Wales, Australia. WIS and the Vendor
irrevocably and unconditionally submit to the non-exclusive jurisdiction of the
courts of New South Wales, the Federal Court of Australia in New South Wales and
courts of appeal from them for determining any dispute concerning this Agreement
or the transactions contemplated by this Agreement.
Severance
If the
whole or any part of a provision of this Agreement is invalid, illegal or
unenforceable, then such provision will be severed from this Agreement and
neither that part or provision or its severance will affect the validity or
enforceability of the remaining parts or provisions of this
Agreement.
Compliance with Site
Policies
In
performing its obligations under this Agreement, the Vendor shall comply (and
shall ensure that its employees and subcontractors (if any) comply) with all of
WIS’ policies, procedure, instruction, direction, publication or guideline (as
amended from time to time) notified by WIS to the Vendor from time to
time.
Survival of
Terms
On
termination of this Agreement for any reason, such of the provisions of this
Agreement as regulate the rights and obligations of the Parties on its
termination shall remain in force to the extent necessary for the determination
and enforcement of those rights (including the obligations of the Vendor under
the various indemnity provisions of this Agreement) and such provisions will be
of a continuing nature and will survive the termination or expiration of this
Agreement
