OUYAO PARTNERSHIP TERMS

 

Preamble

The present ouyao partnership terms (hereafter “the Agreement”) shall govern customer's purchase of subscriptions to the "ouyao” marketplace whether the customer (hereafter “the Principal”) appoints the Belgian company EGS3, Rue de l’Aéroport 50 4460 GRACE HOLLOGNE, as agent (hereafter “the Agent”) in order to sell on behalf of the Principal food and beverage products (hereafter “the Products”) through the website www.ouyao.eu.


The Principal is a food and beverage producer and desires to export the Products abroad and especially to the Chinese market and Chinese professional buyers and dealers (Hereafter “Dealers”).


The Agent is an experienced and specialized business organization in exporting, through its marketplace “ouyao” marketplace, food and beverage products abroad and especially to the Chinese market (hereafter “the Territory”). The Agent operates as an independent body and is not under the authority, leadership nor supervision of the principal.


The Agent has agreed to sell the Products in the Territory on the Principal’s behalf in return for agreed commission payments, on and subject to the present Agreement.


The Principal shall sign a purchase order (hereafter “the Purchase order”). By signing this Purchase order, the Principal acknowledges that it has received, read, understand and agreed with the Terms and Conditions as well as the Agreement which is available on the website www.ouyao.eu/agreement
The Principal is definitely committed by completing and signing the Purchase order and after payment of the subscription fees.

Hereafter, the Agent and the Principal shall be commonly designated as “the Parties” or individually “the Party”.

 

1. APPOINTMENT AND OBJECT OF THE AGREEMENT

1.1 The Principal hereby appoints the Agent for the duration of this Agreement, as its agent for the sale of the Products in the Territory on behalf of the Principal, and the Agent agrees to act in that capacity, on and subject to the terms and conditions of this Agreement, it being understood that payment process related to the sale of Products shall be carried out by a third party to be appointed by the Agent.


1.2 The Agent is authorized by the Principal to obtain orders through the marketplace “ouyao”, conclude contracts with Dealers for sales of Products in the Territory and collect payments through the aforementioned marketplace without prior additional reference to the Principal, such contracts to be on and exclusively subject to the Principal’s terms of sale. The Principal is solely responsible of the content of its terms of sale. The Agent acknowledges and agrees that it shall sell Products only to Dealers in the Territory.

 

2. OBLIGATIONS OF THE PRINCIPAL

2.1 The Principal will at all times act in good faith towards the Agent.


2.2 The Principal will provide the Agent with the information the Agent requires to perform its obligations under this Agreement. At the Agent's request, this will include information related to the Products, their storage and their conditions.


2.3 The Principal may, at any time, add or withdraw any Products.


2.4 During the continuation of this Agreement Principal shall:


2.4.1 At the Principal’s expense, including shipping fees, supply, at the Agent and/or Dealer’s request, the Agent and/or Dealers with sales and marketing materials, and samples of Products to promote and sell the Products;


2.4.2 Notify the Agent of prices for the Products and any changes to the terms of sale. The Agent is not responsible for the applied prices to the Products. ;


2.4.3 Maintain sufficient stocks of the Products to enable it to meet orders in the Territory. In case of unavailability of any Product, the Principal shall withdraw all information related to the Product. The Principal shall keep the information concerning the stock and the availability of Products updated;


2.4.4 Keep the Agent informed of the delivery time of the Products and constantly comply with the declared delivery schedules;


2.4.5 Supply the Agent, for delivery to Dealers, with Products pursuant to sales concluded by the Agent, and otherwise carry out Dealer contracts concluded by the Agent or advise the Agent as soon as reasonably practicable if it is unable to fulfill any order for Products concluded by the Agent;


2.4.6 Agree with the payment process to be negotiated by the Agent with a third payment provider and shall issue invoices to Dealers, with a copy to the third payment provider to be designated by the Agent, in respect of contracts for the sale of Products concluded by the Agent in the name of and on behalf of the Principal under this Agreement. As mentioned in clause 3.5, a third party designated by the Agent shall receive the payments from the Dealers;


2.5 The Principal must warrant that:


2.5.1 It has obtained all approvals and consents required for the sale of the Products in the Territory; and


2.5.2 The Products are free from defects and lack of conformity in material and workmanship; and


2.5.3 The Products otherwise comply and shall continue to comply with all applicable laws and regulations in the EU and in the Territory.


2.6 The Principal agrees, at its expense, to maintain the approvals and consents referred to in clause 2.5.1 as they may be modified. 

 

3. THE MISSION OF THE AGENT

3.1 The Agent shall promote to and conclude with Dealers located in the Territory the sale of the Products that are part of both current and future Principal’s business operations.


3.2 In addition to clause 3.1, the Agent shall provide additional services (hereafter: “Services”) to the Principal as described and detailed in the Annex 1.


3.3 During the continuation of this Agreement, the Agent shall:


3.3.1 Make the Products available for ordering on “ouyao” according to the general standards applicable unless otherwise provided;


3.3.2 Perform the Services provided within the subscribed plan, as defined in clause 5.1.1.


3.3.3 make clear to all Dealers and prospective Dealers that the Agent is an agent of the Principal only to the extent provided for in this Agreement; and


3.4 Without prejudice to its obligations under clauses 3.1, 3.2 and 3.3, the Agent shall:


3.4.1 In the name of and on behalf of Principal, conclude contracts for Products and shall send details of all concluded contracts to the Principal for fulfilment;


3.4.2 Use any samples of the Products provided by the Principal only for disposal free of charge to Dealers or potential Dealers in the Territory, for the purpose of promoting sales of the Products in the Territory. The samples are provided exclusively at the Principal expense, including shipping fees;


3.4.3 Keep the Principal informed of any complaints, issues and/or claims concerning Products received from Dealers, it being understood that the Principal shall remain solely responsible with regard to any obligations related to i) the sale of Products and ii) the after-sale services or iii) the follow up on any claim related to the Products received from Dealers.


3.5 A third party designated by the Agent is entitled to receive payments from the Dealers for the Products through the marketplace“ouyao”. This third party shall remit the amounts due to the Principal after deducting the applicable commissions due to the Agent as set forth in clause 5. The amounts are remitted and prepaid to the Principal before the delivery of the Products.

 

4. INDEPENDENCE

The Agent shall perform its mission independently and shall in no case be considered as an employee of the Principal. The Agent shall carry out its mission according to its own assessment and shall be in control of its own expense.
Any documents or materials which are shared between the Principal and the Agent are considered as necessary work materials enabling them to carry out their respective duties in accordance with the present agreement and may not be interpreted as the expression of any subordinate relationship between the Agent and the Principal.

 

5. PAYMENTS

5.1 The Agent shall be entitled to the following payments :


5.1.1 The payment by the Principal of the annual subscription fees to the marketplace (hereafter: “Subscription fee”) as described in the Purchase order and the agreed Terms and Conditions (Annex 1). The Purchase order mentions the Principal’s subscribed plan (hereafter “Subscribed plan”).


5.1.2 A commission, agreed in the signed Purchase order, expressed in percentage of the net sale price of all Products for which the Agent has concluded, through ouyao, a sale with a Dealer on behalf of the Principal (hereafter: “Commission”).


5.2 The Subscription fee will be due to the Agent at the subscription to one of the offered plan by signing the Purchase order. The amount must be paid within the period set forth in the agreed Terms and Conditions. The payment of the Subscription fee shall entitle the Principal to access to the ouyao platform as set forth in the ouyao Terms and Conditions.


5.3 The Commission will be due to the Agent by the Principal through the third party electronic payment system provided by ouyao platform.


5.4 All fees payable under this Agreement are expressed in euro (€) and are exclusive of any value added tax or other applicable sales tax, which shall be added to the sum in question. The Agent is not responsible for exchange rates mismatches for payment made in other currencies.


5.5 The Agent invoices are payable at the invoice date. Interest will be payable on any commission due but unpaid by Principal from the due date until payment, and whether before or after judgment, at the rate of 8% with a minimum amount of 175 € as set forth in the agreed Terms and Conditions unless otherwise agreed.


5.6 All claims related to Agent invoices must be notified by email at This email address is being protected from spambots. You need JavaScript enabled to view it. and registered letter at the Agent within 5 working days. Outside of this period, no claims will be treated. No access to the ouyao marketplace will be allowed before the full payment of the due amounts.

 

6. SERVICES

6.1 As mentioned in clause 3.2, the Agent shall provide services to the Principal according to the Principal’s Subscribed plan as described in the Purchase Order and below :

 DiscoverySilverGold
Number of products on platform10 40 200
Access to the sales statistics ✔
Privileged positioning through the research engine 
Remarketing 
Coaching marketing (2x1 hour) 
Coaching marketing trimester follow-up (1hour)  
Company profile translation from English to Chinese (A4 page)  
10 products profile translation from English to Chinese (A4 page)  

 

6.2 Besides, the services included in the Subscribed plan, the Principal may require the following additional services (all of such services collectively referred to herein as: “Services”) according to the Principal’s needs :

CIQ certification

  • Pre-screening before certification
  • Full certification

Translation of documents from English to Chinese

  • Translation of your company or product profile, or any other documents, from English to Chinese

Marketing campaign in China

  • Advices on the Chinese market and its specifications
  • Advices on how to adapt your product description, branding, company name translation

Trade mark registration

  • Logo registration on the Chinese market
  • English company name registration on the Chinese market
  • Chinese company name registration on the Chinese market

6.3 The Agent agrees to provide the Services at the specific dates set out in the Purchase order.


6.4 The Parties agree that the sole English version of Chinese translated documents and profiles are deemed authentic and binding towards the Dealers. In any event, the Agent shall not be responsible of any consequences whatsoever of the English version provided by the Principal.


6.5 The Agent shall not be responsible for the content of the Principal’s documents or their translations or any information directly posted by the Principal on the ouyao platform.


6.6 The Agent may assign the performance of the Services to a third party without the prior consent of the Principal.

 

7 TERM – TERMINATION – COMPENSATION ON TERMINATION

7.1 This Agreement shall commence on the Effective Date for 1 (one) year. The Agreement is renewable for another term of one year, with Principal’s prior consent every year before the expiration of the Agreement..


7.2 Each party may terminate this Agreement, without compensation, with immediate effect by written notice in case of a breach by the other party of its obligations under the present Agreement and failure to remedy to the aforementioned breach after a-30-days written notice to remedy to such breach.


7.3 The Agent may terminate the Agreement and cancel the Subscribed plan of the Principal, without prior notice and without any compensation, in the event of a substantial breach by the Principal of its obligations, especially those laid down in clauses 2.5 and 2.6 which could be qualified as gross negligence or wilful misconduct in the performance of this Agreement rendering all professional relations between the Parties impossible with immediate effect.


7.4 The termination of this Agreement will be without prejudice to any other right or remedy of the Agent.


7.5 Upon termination of the Agreement, the Subscribed plan of the Principal shall be canceled and its access to the ouyao platform deleted.


7.6 The Principal agrees that during the term of this Agreement and for 12 months upon termination of the Agreement, Principal shall not to directly or indirectly in any manner whatsoever, seek to contact deal with, transact, solicit, negotiate, enter or attempt to enter into any business with any Dealer, potential Dealer, contacts or any other opportunities whose identity and details was provided to Principal through the Agent’s effort, in order to by-pass, avoid, circumvent the Agent. In the event of a circumvention by Principal, the Agent shall be entitled to receive damages.

 

8. LIABILITY AND INSURANCE

8.1 The Principal shall hold harmless, indemnify and, upon Agent’s request, defend the Agent against any liability incurred by the Agent in respect of damage to property, death or personal injury arising from any fault or defect in the Products, the materials, conception or workmanship of the Products or the quality of the Products and any reasonable costs, claims, demands and expenses arising out of or in connection with that liability, except to the extent that the liability arises as a result of the action or omission of the Agent or its personnel.


8.2 The Principal shall hold harmless and indemnify the Agent against any liabilities which the Agent may reasonably incur:


8.2.1 By reason only of being held out as Principal's agent or otherwise in the performance of this Agreement; or


8.2.2 Through any failure by the Principal to comply with clauses 2.5 or 2.6.


8.3 The Principal shall maintain product liability and “RC exploitation” insurances for the duration of this Agreement with a reputable insurer and shall provide a copy of the insurance policy, and proof of payment of the current premium, on request to the Agent.


8.4 Nothing in this Agreement shall limit or exclude the liability of the Principal for:


8.4.1 Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable) in the performance of this Agreement;


8.4.2 Fraud or fraudulent misrepresentation;


8.4.3 Liability under the indemnities contained in clauses 2.5, 2.6, 8.1 and 8.2.


8.4.4 Any matter in respect of which it would be unlawful to exclude or restrict liability.


8.4.5 The Principal shall be liable to the Agent, whether in contract, in tort (including negligence), for breach of statutory duty, or otherwise, for:


8.4.5.1 Any loss of profit, loss of revenue, or loss of any anticipated savings; or


8.4.5.2 Any loss that is an indirect or secondary consequence of any act or omission of the Principal.


8.5 In terms of operation and realization of the Services, the Agent undertakes to use all reasonable means to provide the required Services and achieves the desired result, but without guaranteeing that result.


8.6 The Agent shall not be responsible and denies any responsibility, directly or indirectly in any manner whatsoever, for the Principal’s defaults regarding clause 2.5 or the compliance of Principal’s Products with any applicable laws and regulations in the EU or in the Territory. The Agent denies any responsibility in case of detention or seizure of the Products by any authority for non-compliance with any applicable laws and regulations in the EU or in the Territory. The Agent shall not be responsible if any authority in the Territory denies the access of the Products to the Territory for non-compliance with any applicable laws and regulations.


8.7 The Principal expressly agrees that its use of the ouyao platform is at its sole risk. The Agent shall not be responsible for the quality, safety, lawfulness or availability of the Products offered through ouyao platform.


8.8 The total liability of the Agent to the Principal in respect of all other loss or damage arising under or in connection with this Agreement, whether in contract, in tort (including negligence), for breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equivalent to 6 months of paid commissions according to article 5.3, for the entire term of this Agreement. In any cases, the Principal will have to demonstrate the value of the damage and the liability of the Agent.

 

9. FORCE MAJEURE

Neither Party will be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any event beyond the reasonable control of such Party (including, but not limited to, any act of God, fire, earthquake, natural disaster, accident, pandemic, labor unrest, civil disobedience, acts of terrorism or act of government), provided that such event is not due to nor arises out of the negligence of the Party seeking to be excused, and provided further that such Party gives the other Party written notice thereof promptly and, in any event, within five (5) business days of discovery thereof, and thereafter uses its best efforts to continue to so perform or cure. In the event of such a force majeure event, the time for performance or cure will be extended for a period equal to the duration of the force majeure event, but in no event more than thirty (30) days. Then the Agreement shall be terminated by law, without any compensation.

 

10. CONFIDENTIALITY

10.1 Neither Party will, without the other’s prior written consent, disclose (other than under clause 10.3):


10.1.1 The terms of this Agreement;


10.1.2 Any information relating to the Dealers, Products, plans or otherwise to the business or affairs of the other Party which is obviously confidential or has been identified by the other Party as such; or


10.1.3 Any information developed by either Party in performing its obligations under, or otherwise pursuant to, this Agreement, all such matters together being “Confidential Information”.


10.2 Neither Party will use the other's Confidential Information except as required to perform this Agreement.


10.3 Disclosure of Confidential Information may be made to a Party’s officers, employees, professional advisers and consultants and other agents, in each case on condition that the disclosing Party is responsible for compliance with the obligations of confidence under this Agreement.


10.4 Confidential Information does not include information which:


10.4.1 Is or becomes public other than by breach of this Agreement;


10.4.2 Was before this Agreement, or becomes, known to the other Party without breach of confidence;


10.4.3 Is independently developed by the other Party without using information supplied by the first Party; or


10.4.4 Is required to be disclosed by law or regulatory authority.


10.5 This clause 10 will remain in force for a period of two years from termination of this Agreement.

 

11. WARRANTY

The Principal warrants that: (a) it owns or has valid and enforceable authorization to produce and manufacture the Products within the Agreement; (b) it owns or has valid and enforceable authorization to export the Products within this Agreement to the Territory; (c) it has full power to enter into this Agreement, to carry out its obligations under this Agreement (c) its commitment in the present Agreement does not misappropriate or infringe any third party rights; (d) the Products are free from defects and lack of conformity in material and workmanship; (e) Products comply with all applicable laws and regulations in the EU and the Territory.

The Principal warrants that It shall indemnify, hold harmless and, upon Agent’s request, defend the Agent and its subsidiaries and affiliates, and their respective directors, officers, employees and agents from and against all claims, liabilities, actions, demands, settlements, damages, costs, fees and losses of any type, including reasonable attorneys’ and professionals’ fees and costs, in connection with, in whole or in part : (a) any negligent act or omission by or any willful misconduct on the part of the Principal in the performance of this Agreement; (b) Principal’s or Principal personnel’s failure to comply with any applicable law; (c) any bodily injury, personal injury, death or property damage caused by the Products.

12. INTELLECTUAL PROPERTY

12.1 The Principal agrees that all trade names, trademarks, domain names, copyrights, trade secrets, and all other intellectual property rights, included know-how related to the Agent are and shall remain at all times the exclusive property of the Agent. Any use by the Principal of any such trade names or trademark, domain name, word, logo, sign, or other intellectual property right related to the Agent or the Services provided, requires the prior consent of the Agent.


12.2 The Agent acknowledges that the Principal's rights to the Intellectual Property used on or in relation to the Products, and the goodwill connected with such rights, are and shall remain Principal’s property.


12.3 Principal shall indemnify, hold harmless and, upon the Agent’s request, defend the Agent from and against all claims, liabilities, actions, demands, settlements, damages, costs, fees and losses of any type, including reasonable attorneys’ and professionals’ fees and costs, arising from an allegation that any items or Products provided by the Principal under this Agreement misappropriated, violated or infringed any third party’s patent, copyright, trademark, trade secret, mask work or other intellectual property or any proprietary right. If a third party claims that the Products misappropriated, violated or infringed a third party’s intellectual property right, the Principal will, in addition to its obligations under this section, promptly notify the Agent in writing about the claim and, at its own expense, exercise the first of the following remedies that is practicable: (a) modify the Products so they are non-infringing and in compliance with this Agreement; (c) replace the Products with non-infringing ones that comply with this Agreement; or (d) at the Agent’s request, cease providing the infringing Products, accept the return of infringing Products, refund any amounts paid by the Agent or the Dealers therefor, and relieve the Agent of any obligation to pay any amounts incurred but not yet paid.

 

13. PERIOD OF LIMITATION

Any legal claims against the Agent that may emerge from the Agreement are limited to one year after termination of the agency or two years after the facts involved in the claim emerge, without this period being able to last for more than one year after termination of the Agreement.

 

14. PRECONTRACTUAL INFORMATION

The Agent admits the receipt, prior to the conclusion of the present Agreement, all the information, whatsoever, required by Articles X.27, X.28 et X.29 of the “Code de droit économique belge”. The Agent waives any claim related to pre-contractual information requirements and undertakes to sign, upon Principal’s request, any agreement confirming the receipt of the required pre-contractual information.

 

15. MISCELLANEOUS

15.1 Good faith. Either Party shall act diligently and in good faith in the execution of the Agreement.


15.2 Notices. Any notice required or permitted hereunder shall be in writing, and shall be given to the appropriate Party at the address first set forth above, or at such other address as the Party may hereafter specify in writing:


- ………………………………………………………………….


- ………………………………………………………………….

 

15.3 Entire Agreement This Agreement, the agreed ouyao Terms and Conditions and the Purchase order set out the entire agreement between the Parties. Neither party has entered into this contract in reliance upon any representation, warranty or undertaking of the other party that is not expressly set out or referred to in this contract.


15.4 No Third Party Beneficiaries. This Agreements executed and entered into by the Parties solely for their benefit, and for no other party (including without limitation any individual employee, officer, director, contractor or agent of either Party).


15.5 Effect of invalid or unenforceable provisions If any provision of this Agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part, this contract shall continue to be valid as to its other provisions and the remainder of the affected provision, unless it can be concluded from the circumstances that, in the absence of the provision found to be null and void, the Parties would not have concluded this contract. The Parties shall use all reasonable efforts to replace all provisions found to be null and void by provisions that are valid under the applicable law and come closest to their original intention.


15.6 Governing Law – Jurisdiction All issues, questions and disputes concerning the validity, interpretation, enforcement, performance and termination of this Agreement shall be governed by and construed in accordance with Belgian law, and no effect shall be given to any other choice-of-law or conflictof-laws rules or provisions (Belgian, foreign or international), that would cause the laws of any other jurisdiction to be applicable. All disputes concerning the validity, interpretation, enforcement, performance and termination of this Agreement shall be submitted to the exclusive jurisdiction of the Commercial court of Liège, division Liège, Belgium.