Access and functions on the METRO BUYING SYSTEM (hereinafter referred to as “MBS”) is provided by METRO Sourcing International Limited (formerly known as MGB METRO Group Buying HK Limited) (hereinafter referred to as “METRO Sourcing”) to the Supplier on the following terms and conditions:

1.    Definitions

The following words and expressions shall have the following meanings:-

         “Company Administrator”                         Any person designated and appointed by the Supplier to administer the Supplier’s access and usage of the MBS, to be responsible for the management and control of the use of the MBS as well as to create the different “Users”(as defined herein below) who have different levels of access to and usage of the MBS. The Company Administrator has complete access to the MBS and all its functionalities: Administration, Training/FAQ, Contracts and Pre-Shipment.

         “Instruction”                                           Any request, instruction, acceptance or confirmation given by the Supplier’s User(s) (which in the context of these Terms and Conditions includes the Company Administrator and all Users: Manager, Merchandiser, Supply Management and Pre-shipment on behalf of the Supplier) to METRO Sourcing effected through the MBS;

        “CA Password”                                         The initial password issued to the Company Administrator to allow him to access the MBS for the first time and any subsequent passwords used by the Company Administrator thereafter;

         “Password”                                             Any password which may be used by the Company Administrator or any of the Users to access the MBS.

         “METRO BUYING SYSTEM” or “MBS”          An electronic supply chain services system accessible over the world wide web which allows the Supplier to gain access to information relating to the Supplier's contracts with METRO Sourcing and to carry out certain functions (as prescribed by METRO Sourcing from time to time) in respect of these contracts.

         “Supplier”                                               Any entity, sole proprietorship, partnership or corporation who applies for access to the MBS (which shall include its representative and lawful successor (as the case may be)).

         “User”                                                    Any person designated by Supplier via its Company Administrator to access the MBS on behalf of the Supplier to carry out certain tasks or functions on behalf of the Supplier in relation to its contracts with METRO Sourcing and the Supplier shall give each User any of the following access rights:

                                                                      “User role: Supplier Manager”

                                                                      Any person designated and appointed by the Company Administrator to use the MBS with no access to Pre-Shipment, restricted access to Administration, full access to Training/FAQ, Contracts and Contractual Documents.

                                                                      “User role: Supplier Merchandiser”

                                                                      Any person designated and appointed by the Company Administrator to use the MBS with no access to Pre-Shipment, restricted access to Administration, full access to Training/FAQ and Contracts.

                                                                      “User role: Pre-Shipment for Supplier”

                                                                      Any person designated and appointed by the Company Administrator to use the MBS with no access to Contracts, restricted access to Administration full access to Training/FAQ and Pre-Shipment;

                                                                      “User role: QCI for Supplier”

                                                                      Any person designated and appointed by the Company Administrator to use the MBS with no access to Contracts, restricted access to Administration full access to Training/FAQ and QC Inspection;

                                                                      “User role: Supplier Management”

                                                                      Any person designated and appointed by the Company Administrator to use the MBS with restricted access to Administration, Contracts and Pre-Shipment, full access to Training/FAQ.

2.         Use of Service

2.1        METRO Sourcing grants to the Supplier the facility to carry out certain functions in relation to any current contracts which the Supplier has concluded with METRO Sourcing through the internet or other electronic delivery channels subject always to the Terms and Conditions herein as prescribed by METRO Sourcing from time to time.

2.2        Either party may terminate this MBS access and usage on thirty days' written notice to the other provided that METRO Sourcing shall be entitled to terminate the MBS access and usage immediately in the event of a material breach (as shall be determined by METRO Sourcing) of it by the Supplier.

2.3        The Supplier shall designate and appoint one or more Company Administrator(s) to manage and control the access of and the use of the MBS by the Supplier.  Anything performed by the Company Administrator in relation to the MBS, in particular but not limited to the designation of Users shall be binding upon the Supplier.

3.         Passwords

3.1        METRO Sourcing shall provide CA Password(s) to the Company Administrator(s) to permit first time access to the MBS.  The CA Password(s) shall be kept by the Supplier at its own sole risk and the Supplier shall be fully liable and responsible for any loss, claim, damage and cost whatsoever arising from or in connection with any negligence, improper use, misuse, theft or loss of the CA Password(s) and shall keep METRO Sourcing fully indemnified in respect thereof.

3.2        The Supplier shall ensure that the Company Administrator(s) and all Users shall act in good faith, exercise reasonable care and diligence in keeping the CA Passwords and Passwords strictly confidential at all times and agrees to be fully responsible for any accidental, unintentional or unauthorised disclosure of the CA Passwords or Passwords to any other person and shall be wholly responsible for any direct and indirect losses and/or liabilities caused by or in connection with the unauthorised use of such CA Passwords or Passwords.

3.3        The Supplier shall ensure that the Company Administrator(s) and all Users shall immediately change their CA Passwords or Passwords in the event of any suspicion that there has been unauthorised disclosure or use of the CA Passwords or Passwords. 

3.4        The Supplier agrees that any function concluded by the Company Administrator(s) and/or any User shall be binding upon the Supplier notwithstanding that the Supplier might have the suspicion that there has been unauthorised usage or disclosure of the CA Passwords or Passwords.

4.         Performance of Functions by the Supplier

4.1        All performance of functions entered into by the Company Administrator(s) or Users via the MBS shall be irrevocable and binding on the Supplier. METRO Sourcing's record of transactions shall be conclusive evidence against the Supplier.

4.2        The Supplier authorises METRO Sourcing to provide third parties with such information relating to the Supplier and its contracts as may, in METRO Sourcing's reasonable opinion, be necessary in order to give effect to the contracts or in order to comply with the order of any court, government agency tribunal or lawful authority in any jurisdiction or with any applicable legal requirement, guidelines, codes which METRO Sourcing deems necessary.

4.3        The Supplier acknowledges that information concerning the Supplier and its contracts may be transmitted to or through and/or stored in various countries or states. The Supplier authorises such transmission and/or storage as METRO Sourcing shall reasonably consider necessary or appropriate in the provision of access and usage of the MBS.

4.4        METRO Sourcing shall endeavour to take all steps as far as reasonably practicable to ensure that information made available by the MBS is correct and updated at regular intervals.  The Supplier agrees and confirms that METRO Sourcing shall not be held liable for or in connection with the accuracy of all or any of the information received by the Supplier via the MBS.

5.         Limitation of Liability

5.1        The Supplier agrees that METRO Sourcing shall not be liable to the Supplier for any failure to provide the MBS which is attributable (whether wholly or partially) to any cause beyond METRO Sourcing's control including but not limited to any equipment malfunction or failure and delay or failure of any third party communication systems.

5.2        Under no circumstances shall METRO Sourcing be liable to the Supplier (whether in contract, tort, including negligence, strict liability or otherwise) for any indirect, special or consequential loss (whether foreseeable by METRO Sourcing or not) arising out of or related to the Supplier's use of the MBS and METRO Sourcing shall not be liable for any damage to the Supplier's terminal or related facilities or any loss or corruption of the Supplier's data in connection with the operation of the MBS.

5.3        Subject to the provisions hereof and only in the absence of negligence on the part of the Supplier or its Company Administrator(s) or any of its Users, the Supplier shall not be liable for any unauthorised transaction performed through the internet due to :-

            (a)        A computer crime not prevented by the security system of METRO Sourcing; or

            (b)        A human or system error caused by METRO Sourcing, resulting in an improper transaction.

6.         Warranties

6.1        The Supplier understands and warrants as follows:

(a)        That the Company Administrator is duly and properly authorized on behalf of the Supplier to designate Users for and to carry out transactions on behalf of the Supplier on the MBS;

(b)        That the Users so designated by the Company Administrator are duly and properly authorized on behalf of the Supplier to carry out transactions on behalf of the Supplier on MBS within the limits of their access rights;

(c)        That all transactions carried out on the MBS by the Company Administrator(s) or Users are binding on the Supplier regardless of whether or not the CA Passwords, the Passwords or access to the MBS has been properly used;

(d)        At all times to keep the Login User Names, CA Passwords and Passwords confidential, and shall not disclose to any person in a manner that could result in its disclosure or misuse, in particular, not to send them via e-mail;

(e)        Immediately change the Login User Names or CA Passwords or Passwords as soon as it has any reasonable suspicion that any of the foregoing has been used in any unauthorised manner;

(f)         Not to furnish the Login User Names or CA Passwords or Passwords to anyone under any circumstances who claims to represent METRO Sourcing or holds themselves out as an employee of METRO Sourcing (it is not necessary for METRO Sourcing's employees to know the Login User Names, CA Passwords and Passwords);

(g)        Exercise due care and good internal control within the Supplier's operations from time to time and to            use its best efforts to implement segregation of duties among Users;

The Supplier fully acknowledges that the failure on the part of the Supplier to comply with any one of the precautionary measures listed above may lead to security breaches and METRO Sourcing shall not in any event be held liable for any loss or damage suffered resulting from or in connection therewith.  Neither shall the Supplier be freed from its liability to perform its obligations under the contracts with METRO Sourcing in any way.

6.2        METRO Sourcing shall be under no obligation to investigate or verify the authority of any person carrying out functions via the MBS.

6.3        The Supplier warrants and represents that all acts, conditions, things required to be done, performed and observed in order that these Terms and Conditions shall constitute the legal, valid and binding obligations of the Supplier enforceable in accordance with its terms have been done, performed and observed in strict compliance with all applicable laws and Memorandum and Articles of Association or other constitutional documents of the Supplier.

7.         Others

7.1        The granting of access to the MBS shall be at the sole discretion of METRO Sourcing and METRO Sourcing has the full right to cancel or suspend the MBS or any element thereof at any time.

7.2        Without prejudice to the generality of Clause 7.1, METRO Sourcing shall be entitled to terminate immediately the access to the MBS provided to the Supplier if :-

(a)        There is any change of law which prohibits or renders illegal the maintenance or operation of such MBS or any elements thereof;

(b)        The Supplier shall commit any breach of or omit to observe any obligations under these Terms and Conditions which, in the sole opinion of METRO Sourcing, amounts to a material breach or default on the part of the Supplier;

7.3        The Supplier shall only be entitled to obtain access to the MBS during the MBS hours specified by METRO Sourcing from time to time.

7.4        METRO Sourcing shall have the absolute discretion from time to time to determine the scope of the MBS, set or change the daily cut-off time, withdraw or discontinue the operations of the MBS without notice or responsibility to the Supplier. Any transactions performed through the MBS after the daily cut-off time shall be treated as next business day transactions. Since the MBS may be accessed from any country, the daily cut-off time in Hong Kong shall prevail.

7.5        The cost and expense to obtain and maintain suitable equipment to access the MBS shall be borne by the Supplier.

7.6        METRO Sourcing will not assume any responsibility or obligation for any transaction or error arising out of failure of the Supplier to provide or input sufficient or accurate data to enable the said transaction to be effected through the MBS.

7.7        The Supplier understands and acknowledges that the MBS is provided as an additional service in relation to transactions with METRO Sourcing. In the event that the MBS is terminated by METRO Sourcing or not available for any reason whatsoever (whether or not within the control of METRO Sourcing), the Supplier shall have no claim whatsoever against METRO Sourcing and shall use other available means to effect the transactions.

7.8        These Terms and Conditions shall be governed by the applicable laws of The Hong Kong Special Administrative Region and by METRO Sourcing's regulations and practices, brought to the attention of the Supplier by display, advertisement or otherwise as the foregoing are now in effect or as hereafter amended, enacted or adopted. The Courts of Hong Kong shall have the non-exclusive jurisdiction to determine, enforce and adjudicate all disputes and claims arising out of the above and in connection therewith.

7.9        METRO Sourcing may revise any of the terms or add new terms to these Terms and Conditions at any time. The revised terms and conditions when displayed, advertised or brought to the attention of the Supplier by appropriate means shall become effective and be binding on the Supplier and if the Supplier continues to maintain the MBS after the effective date thereof, such revisions will be deemed to be accepted.

7.10      These Terms and Conditions are additional to, and not in substitution for, any other terms and conditions relating to the conduct of the Supplier's relationship with METRO Sourcing. If at any time any of these terms and conditions becomes invalid or unenforceable, such shall not affect the validity and/or enforceability of any of the other terms and conditions hereof.

7.11      Where the context permits, the singular includes the plural and vice versa, the masculine includes feminine and neuter and vice versa.

7.12      These Terms and Conditions shall be binding on and ensure to the benefit of METRO Sourcing and the Supplier and the respective successors and assigns of METRO Sourcing and the Supplier.