FILLER SUPPLY AGREEMENT
Exhibit
6.17
THIS
FILLER SUPPLY AGREEMENT (including all Exhibits hereto, the
"Agreement") is made and entered into as of __________ (the
"Effective Date"), between Beauty and Pinups, LLC, a North Carolina
limited liability company ("BPU"), and ___________ ("Filler").
Certain capitalized words used in this Agreement are defined in
Section 11.
In
consideration of the mutual promises contained in this Agreement
and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties agree as
follows:
1.
Appointment. During the Term
of this Agreement, BPU appoints Filler, and Filler agrees to serve,
as BPU's warehouser, filler and related supply servicer on a
non-exclusive basis for its health and beauty care and other
products (“Products”). Filler may use Affiliates to
provide the Services described herein. Filler must ensure that any
Affiliate that provides Services complies with the terms and
conditions of this Agreement.
2.
Product Receipt and
Warehousing.
2.1
Product Receipt.
(a)
BPU shall enter purchase orders for Products to be supplied by
BPU's vendors into the Purchase Order System. Filler will receive
such delivered Products from BPU or BPU's vendors.
(b)
Upon receipt, Filler will unload the Products, perform a quantity
count and verification, conduct a damage check and assessment,
process the receipt of inventory and warehouse the Products in
accordance with Section 2.2.
2.2
Warehousing.
(a)
During the Term of this Agreement, Filler shall use commercially
reasonable means to receive, handle, store and protect the Products
from damage, theft and other adverse events.
(b)
Filler shall store the Products in a secured facility. Only
Filler's employees and agents and BPU's authorized employees and
agents will have access to the Products. Furthermore, BPU
acknowledges that Filler provides warehousing services to third
parties and that not all of the Products will be maintained in
areas of the Filler’s Facilities which are separate from such
third parties' inventory. Notwithstanding the foregoing, Filler
shall take all reasonable measures to ensure that BPU's inventory
is secure and clearly designated as BPU's inventory.
(c)
BPU shall have the right to inspect the Products, in whole or in
part, upon receipt by Filler and shall have the right to reject
such Products; provided, however, that Filler shall bear no
liability for such rejected Products. Filler shall provide a
holding area for Products received whose acceptability is
questionable. BPU will advise Filler on the disposition within five
(5) Business Days of notification by Filler of such questionable
Products.
(d)
Filler shall conduct cycle counts in order to assure the accuracy
of the inventory on an as requested basis by BPU. If stock
differences are found in any inventory, Filler will list gains as
receipts, and losses as deductions, thus correcting the book record
to agree with the actual Products on hand. These changes will be
made on an ongoing basis; provided, however, that Filler shall
promptly notify BPU in writing when such changes are made. Filler
will take such additional physical inventories as reasonably
requested by BPU upon advanced written notice of not less than two
(2) Business Days, the actual costs of which shall be at BPU's
expense. Representatives of BPU may be present during any
inventory.
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3.
Order Processing and
Filling.
3.1
Service. Filler shall provide first-level Services to
BPU.
3.2
Order Processing. Filler shall process all BPU’s orders in
accordance herewith.
(a)
After receipt of an order, Filler will fill the order as set forth
on the terms of the purchase order received from BPU from the
inventory of Products at the Filler’s Facilities, (ii) insert
all packing slips in accordance with Section 3.2(c) below, and
(iii) pursuant to BPU's instructions, and based upon availability
of Products in stock, ship the order to BPU’s designated
party and location either as a multiple shipment or as one
shipment. Filler shall use a common carrier agreed to by BPU. In
the event that Filler does not have a Product in stock in order to
fill an order (a "Backordered Product"), Filler agrees to act in
accordance with Section 3.2(e) below. Furthermore, Filler shall
obtain written approval from BPU before changing agreed-upon common
carriers.
(b)
Filler will acknowledge receipt of orders to BPU in accordance with
BPU’s specifications, which may change from time to time.
Acknowledgment will be made promptly after an order is received by
Filler and will identify the availability of the
Products.
(c)
Filler will print all packing slips, including printing the text of
any special message requested by BPU on the standard packing slip.
Filler will insert the standard packing slip and all additional
packing slips requested by BPU. Furthermore, Filler will print and
apply recipient’s addresses or affix shipping labels on
orders being shipped to recipient as part of its
Services.
(d)
Filler will make available on its Order Management System all
orders filled by Filler on the preceding Business Day and which
includes the following information for each such order: the order
number, the recipient’s name and address, an itemization of
Products shipped, the price charged by Filler to BPU for each
Product and shipping charges.
(e)
Filler shall promptly enter into the Order Management System any
Backordered Products so that BPU may promptly identify which
Products need to be supplied. Upon receipt of any Backordered
Products, Filler shall follow the procedures set forth in Section
3.2(a). For purposes of Section 3.2(a), orders for Backordered
Products shall be deemed to have been placed upon the date the
Backordered Products are received into inventory by
Filler.
3.4
Other Services. In the event that BPU requires services that exceed
the scope or extent of the Services provided for herein, including
other premium services ("New Services"), and if Filler agrees to
provide such New Services, BPU and Filler shall negotiate in good
faith the terms and conditions, including price, under which Filler
shall provide New Services. In the event that the parties agree to
New Services, the scope and duration of the New Services shall be
described in an addendum to Exhibit B hereto and thereafter
such New Services shall be considered Services hereunder. BPU may
elect to reduce or terminate any of the New Services upon not less
than thirty (30) days' prior written notice to Filler. Except as
otherwise provided herein, to the extent BPU elects to reduce or
terminate any of the Services or to the extent the parties mutually
agree to cancel or terminate any of the New Services, such services
shall be deemed modified or deleted, as applicable, from the
appropriate Exhibit hereto, with the remaining services thereafter
constituting the Services.
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3.5
Insurance. Filler shall maintain at all times during the Term of
this Agreement insurance as provided below and shall name BPU and
Level Beauty Group, Inc. as additional insureds to the extent of
indemnity provided herein under its liability policies as
follows:
(a)
Commercial general liability insurance including
premises/operations, broad form property damage, independent
contractors, and contractual liability covering Filler's
obligations hereunder for bodily injury and property damage, with a
combined single limit of not less than $1,000,000 each occurrence
and $5,000,000 umbrella coverage.
(b)
Workers' compensation insurance in statutory amounts covering
Filler and its employees, and employer's liability insurance in an
amount not less than $500,000 per accident/disease.
(e)
All insurance required above shall be carried with insurance
companies licensed to do business in the state(s) where operations
are maintained with a rating of no less than A-. Filler shall
deliver to BPU, upon execution of the contract, certificates of
insurance as evidence of the required coverages. Filler agrees that
these policies shall not be canceled or materially changed without
not less than thirty (30) days' prior written notice to BPU. Such
notice shall include written confirmation and details of
replacement insurance coverages and other material revisions to the
policies, which shall be effective immediately upon any
cancellation or material change in Filler's policies in order that
no gap in coverage results.
4.
Terms and Conditions. The
Terms and Conditions for each order and transaction under this
Agreement are attached hereto as Exhibit A, and shall be
incorporated by reference into this Agreement. In the event of any
inconsistency between the body of this Agreement and the Terms and
Conditions, the body of this Agreement shall control. Subject to
the priority set forth in the previous sentence, any other purchase
order, sales order, acknowledgement or invoice presented from one
party to another party with respect to the Products, Services or
New Services shall be subject to the terms of this Agreement, and
this Agreement shall control over any such other purchase order,
sales order, acknowledgement or invoice in the event of any
inconsistency.
5.
Pricing and Payment
Terms.
5.1
Services will be charged as specified on Exhibit B.
5.2
BPU shall be responsible for collection of all payments for sales
of Products and for the determination and payment of all applicable
taxes, including sales taxes.
5.3
Payment Terms. Filler shall invoice BPU as soon as possible but in
no event more than five (5) Business Days after the end of each
month for such Services rendered in the preceding month. For annual
Services, Filler shall invoice BPU within five (5) Business Days
after the end of each month an amount equal to one-twelfth (1/12th)
of the annual amount specified on Exhibit B for such annual
Services, which will be deemed to be Filler's compensation for
annual Services rendered in the preceding month. All invoices for
Services shall be paid by BPU no later than the thirtieth (30) day
following receipt of the month in which such invoice is received by
BPU.
6.
Term and
Termination.
6.1
Term. The term of this Agreement shall begin on the Effective Date
and shall continue until the first anniversary of the date hereof
(the "Initial Term") or until it is terminated in accordance with
this Section 6 or as otherwise provided herein. The parties agree
that either party may terminate this agreement on sixty (60)
days’ prior written notice to the other party.
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6.6
Effect of Termination.
(a)
Filler shall complete all orders placed prior to the effective date
of termination but shall have no responsibility to provide any
further Services to BPU as of the effective date of termination.
Notwithstanding the foregoing, Filler shall cooperate in and take
all reasonable steps as reasonably requested by BPU for the
transition of such Services to such party as may be designated by
BPU. Any pre-approved costs or expenses incurred by Filler in
connection with such transition of Services shall be promptly
reimbursed by BPU.
(b)
Except as necessary to perform its obligations hereunder, Filler
shall return all of BPU's property within ten (10) Business Days
following the effective date of termination.
(c)
Except as necessary to perform its obligations hereunder, all
licenses granted hereunder shall immediately terminate, and Filler
shall immediately discontinue its use of the BPU Marks. In
addition, Filler shall promptly, upon the direction of BPU and at
Filler's sole expense, return or destroy any and all Marks or
Confidential Information of BPU in its possession in any
medium.
7.
Confidentiality.
7.1
Confidential Information. Each party shall cause each of its
Affiliates and each of their officers, directors and employees to
hold all information (the "Confidential Information") relating to
the business of the other party disclosed to it by reason of this
Agreement confidential and will not disclose any of such
Confidential Information to any third party, except as provided in
this Agreement. Each party shall limit disclosure of such
Confidential Information to those of its employees who have a need
to know such Confidential Information and shall inform those
employees to whom such disclosure is made of their obligations of
confidentiality and limited use. The obligations of this Section 7
shall not extend to any Confidential Information:
(a)
that, on or after the date of this Agreement, comes into the public
domain through no fault of a party with a confidentiality
obligation under this Agreement;
(b)
that is disclosed to a party with a confidentiality obligation
under this Agreement, without restriction on disclosure, by a third
party who has the lawful right to make such
disclosure;
(c)
that is required to be disclosed by a party by law, or to a court
or by a Governmental Body (as defined below); or
(d)
that is disclosed to their respective directors, officers.
attorneys, accountants and other advisors, who are under an
obligation of confidentiality, on a "need-to-know"
basis.
8.
Ownership;
Liens.
8.1
Property. Except as agreed between the parties in writing, or as
expressly set forth in this Agreement, BPU (or its licensors, as
applicable) shall own all right, title and interest in and to any
and all property provided to Filler hereunder, and nothing
contained in this Agreement shall be deemed to transfer or convey
to Filler any right, title or interest in or to any such or
property by virtue of its use by Filler in relation to any Service
provided hereunder.
8.2
Trademarks. Subject to the terms and conditions set forth herein,
BPU hereby grants to Filler, and Filler hereby accepts, a
non-exclusive, royalty-free, non-transferable (without any right to
sublicense), limited license to use, publish and display such
trademarks, service marks, trade names, service names or other
marks, registered or otherwise, as may be provided by BPU
(collectively, the "BPU Marks"), solely as required to perform
Filler's obligations hereunder. All use by Filler of the BPU Marks
shall conform to the usage guidelines provided by BPU, which
guidelines may be updated from time to time. In the event that BPU
notifies Filler of any incorrect usage of the BPU Marks, Filler
shall promptly correct such usage. BPU (or its Affiliates) shall
own all right, title and interest in and to the BPU Marks. Nothing
contained in this Agreement shall be deemed to transfer or convey
to Filler any ownership rights whatsoever in and to the BPU Marks,
nor will Filler obtain any right, title or interest in the BPU
Marks by virtue of its use under this Agreement. Filler may not
make any modifications or changes to any BPU Xxxx without the prior
written consent of BPU. Any additional goodwill associated with the
BPU Marks that is created through Filler's use of the BPU Marks
shall inure solely to the benefit of BPU and its Affiliates, and
BPU and its Affiliates shall be the sole entities entitled to
register the BPU Marks. All rights not specifically granted with
respect to the BPU Marks herein are reserved by BPU and its
Affiliates.
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8.3
During the Term of this Agreement, Filler shall not allow liens or
encumbrances of any kind to be placed on any of the Products or any
additional property of BPU in the possession of Filler or located
at the Filler’s Facilities other than by BPU.
9.
Relationship of Parties.
Each party hereto is an independent contractor and when its
employees act under the terms of this Agreement, they shall be
deemed at all times to be under the supervision and responsibility
of such party; and no person employed by either party and acting
under the terms of this Agreement shall be deemed to be acting as
agent or employee of such party or any customer of such party for
any purpose whatsoever. Neither of the parties shall act or
represent or hold itself out as having authority to act as an agent
or partner of the other party, or in any way bind or commit the
other party to any obligations. Nothing contained in this Agreement
shall be construed as creating a partnership, joint venture,
agency, trust or other association of any kind, each party being
individually responsible only for its obligations as set forth in
this Agreement.
10.
Force Majeure. Filler shall
be temporarily excused from providing the Services, and BPU shall
be excused from any payment for such Services, during the period of
an applicable Force Majeure event. In the event of any Force
Majeure event lasting more than ten (10) Business Days, BPU may, at
its sole discretion, immediately terminate this Agreement upon
written notice, without penalty.
11.
Miscellaneous.
11.1
Definitions. As used in this Agreement, the following terms have
the following meanings.
"Affiliate"
means any Person who is an "affiliate" as defined in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act
of 1934, and the rules and regulations promulgated
thereunder.
"Business
Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in the State of Illinois are authorized or
required by law or executive order to close. For purposes of this
Agreement, BPU's Business Day ends at 6:00 PM (Central
Time).
"Filler
Facilities" means one (1) or more of Filler's warehouse and filling
facilities as Filler may from time to time designate.
"Force
Majeure" means any cause or condition beyond Filler's reasonable
control, including, without limitation, to acts of God or of the
public enemy; acts of any federal, state or local government or
agency; fires; floods; epidemics; quarantine restrictions; strikes
and labor disputes; war; acts of terrorism; failure of
communications capabilities; earthquakes or general unavailability
of energy or materials.
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"Governmental
Body" means any foreign or domestic, federal, territorial, state or
local government authority, quasi-governmental authority,
instrumentality, court, government or self-regulatory organization,
commission, tribunal or organization or any regulatory,
administrative or other agency, or any political or other
subdivision, department, board, bureau or branch or official of any
of the foregoing.
"Order
Management System" means Filler's current inventory and customer
order system or any successor system.
"Person"
means any individual, corporation, partnership, firm, joint
venture, limited liability company, association, joint-stock
company, trust, unincorporated organization, Governmental Body or
other entity.
"Purchase
Order System" means Filler's current purchase order dispatch and
receiving system or any successor system.
"Services"
means all services provided by Filler hereunder.
11.2
Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally,
sent by facsimile transmission or sent by certified, registered or
overnight courier, postage prepaid. Any such notice shall be deemed
given when so delivered personally, or sent by facsimile
transmission, if delivered by commercial overnight courier service,
one (1) day after delivery or, if mailed, five (5) days after the
date of deposit in the United States mails, to the other party at
their last known address. Either party may, by notice given in
accordance with this Section 11.2 to the other party, designate
another address or Person for receipt of notices
hereunder.
11.3
Entire Agreement. This Agreement (including the Exhibits) contains
the entire agreement among the parties with respect to the
transactions contemplated hereby and supersedes all prior
agreements, written or oral, with respect thereto.
11.4
Waivers and Amendments; Non-Contractual Remedies. This Agreement
may be amended, superseded, canceled, renewed or extended, and the
terms hereof may be waived, only by a written instrument signed by
the parties hereto or, in the case of a waiver, by the party
waiving compliance. No delay on the part of either party in
exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any waiver on the part of either party
of any such right, power or privilege, nor any single or partial
exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right,
power or privilege.
11.5
Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective
successors and legal representatives. This Agreement is not
assignable except by operation of law, except that BPU or Filler
may assign this Agreement to any of its Affiliates or to any
successor to all or substantially all of its business or
assets.
11.6
Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument. Each counterpart
may consist of a number of copies hereof each signed by less than
all, but together signed by all of the parties hereto. The parties
hereto confirm that any facsimile copy of another party's executed
counterpart of this Agreement (or the signature page thereof) shall
be deemed to be an executed original thereof.
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11.7
Exhibits. The Exhibits are a part of this Agreement as if fully set
forth herein. All references herein to Sections and Exhibits shall
be deemed references to such parts of this Agreement, unless the
context shall otherwise require.
11.8
Headings. The headings in this Agreement are for reference only,
and shall not affect the interpretation of this
Agreement.
11.9
Interpretation. Wherever from the context it appears appropriate,
each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns stated in the masculine,
the feminine or neuter gender shall include the masculine, the
feminine and the neuter.
11.10
Certain Acknowledgments. Each of the parties hereto acknowledge
that it has been represented by legal counsel of its own choice
throughout all negotiations and preparation and review of this
Agreement, and that it has executed this Agreement voluntarily.
Each of the parties hereto acknowledge that it is sophisticated in
transactions of the type contemplated by this Agreement and each
party wishes to create a relationship based on the terms set forth
in this Agreement.
11.11
Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the parties hereto directs that
such court interpret and apply the remainder of this Agreement in
the manner that it determines most closely effectuates their intent
in entering into this Agreement, and in doing so particularly take
into account the relative importance of the term, provision,
covenant or restriction being held invalid, void or
unenforceable.
11.12
Survival. The provisions of Agreement which are contemplated to
survive the termination shall survive.
11.13
Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of North Carolina applicable
to agreements made and to be performed entirely within such
State.
[Signature page
follows]
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IN
WITNESS WHEREOF, the parties have executed this Filler Supply
Agreement on the date first above written.
Beauty
and Pinups, LLC
______________________________
Name:
________________________
Title:
_________________________
[
]
______________________________
Name:
________________________
Title:
_________________________
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Exhibit A
Beauty and Pinups, LLC
Terms and Conditions
1.
ACCEPTANCE, ENTIRE
AGREEMENT AND MODIFICATION. (a) By acceptance of the order,
the party providing the product or goods under this order
(“Seller”) agrees to the terms and conditions contained
herein and incorporated herein by reference, which terms and
conditions shall constitute the entire agreement between the Seller
and Beauty and Pinups, LLC (“Buyer”). Buyer rejects any
additional and inconsistent terms and conditions offered by Seller
at any time and irrespective of Buyer’s acceptance of or
payment for Seller’s items or services. This order shall be
deemed accepted upon the return of the acknowledgment copy of this
order, other verbal or written acceptance or the commencement of
performance by Seller. These terms and conditions constitute the
entire agreement between the parties and no change to or
modification of this order shall be binding upon Buyer unless
signed by an authorized representative of Buyer’s procurement
or purchasing office at Buyer’s place of business issuing
this order.
(b)
Notwithstanding the above, the Parties acknowledge and agree that
in the interest of time certain matters of a practicable business
nature, such as material and product releases, minor changes in
delivery dates, shipment instructions, variances in orders and the
like may be sent by Buyer to Seller via electronic data
interchange, facsimile or telephonic communication. The Parties
agree that such communications, and any deliveries thereunder,
shall constitute part of this order and be subject to these terms
and conditions.
2.
PRICES, TAXES, CASH
DISCOUNTS AND NEW MATERIAL. Seller warrants that each price
for items sold to Buyer under this order is no less favorable than
that extended during the term of this order to any other customer
for the same or like items in equal or less quantities. Unless
otherwise provided on the face of this order, the prices appearing
herein include all packaging, crating and federal, state and local
taxes.
3.
DRAWINGS AND
DATA. All drawings,
data, designs, engineering instructions, models, specifications or
other technical information, written, oral or otherwise, supplied
by or on behalf of Buyer or prepared by Seller specifically in
connection with performance of this order (hereinafter
“Information”) shall be and remain the property of
Buyer. Seller shall not use or disclose such Information except in
the performance of orders for Buyer and upon Buyer’s request
such Information and all copies thereof shall immediately be
returned to Buyer. Where such Information is furnished to
Seller’s suppliers for procurement of supplies by Seller for
use in the performance of Buyer’s orders, Seller shall insert
the substance of this provision in any purchase order or
subcontract hereunder.
4.
CHANGES.
Buyer may at any time by a written order, make changes in any one
or more of the following: (a) drawings, designs or specifications
where the items to be furnished are to be specifically manufactured
for the Buyer in accordance herewith, (b) method of shipment or
packing, or (c) place or time of inspection, delivery or
acceptance. If any such change causes an increase or decrease in
the cost of or time required for the performance of this order, an
equitable adjustment shall be made in the price or delivery
schedule or both.
5.
STOP WORK
ORDERS. Buyer may at
any time by written order, stop all or any part of the work under
this order for a period of 90 days. At any time, during such
period, Buyer may with respect to all or any part of the work
covered by the stop work order, either cancel the stop work order
or terminate the work in accordance with subparagraph (a) or (b) of
the “Termination” clause of this order. To the extent
the stop work order is canceled or expires, Seller shall resume
work. If a stop work order has a material effect on cost of
delivery, an equitable adjustment shall be made in the price
(excluding profit) or the delivery schedule or both.
6.
DELIVERIES AND
SHIPMENTS. Time is of
the essence in making deliveries under this order. Unless otherwise
specified in this order, risk of loss for each item delivered
pursuant to this order shall pass to Buyer upon delivery to
Buyer’s factory or designated delivery location and delivery
shall be F.O.B. destination. If delivery is to be in accordance
with Buyer’s written releases, Seller shall not procure,
fabricate, assemble or ship any item except to the extent
authorized by the Buyer in such written releases. Unless otherwise
specified on the face of this order, no variation in the quantity
is authorized for shipment. All items are to be suitably prepared
for shipment and must be packed and shipped in accordance with the
governing classification and tariffs applicable
thereto.
7.
INSPECTION AND
QUALITY CONTROL.
Notwithstanding (a) payment, (b) passage of title or (c) prior
inspection or test, all items are subject to final inspection and
acceptance or rejection at destination stated herein. Seller shall
provide and maintain quality control and inspection systems
acceptable to Buyer.
8.
WARRANTY.
Unless otherwise stated on the face of this order, Seller warrants
to Buyer its successors, assigns and customers that all items
furnished (including all replacement items and all replacement or
corrected components which Seller furnishes pursuant to this
warranty) (a) will be free from defects in materials and
workmanship for a period of two years, (b) will conform to
applicable drawings, specifications, samples and other descriptions
furnished or specified by Buyer and to the extent such items are
not of a detailed design furnished by Buyer, (c) will be
merchantable, suitable for the intended purposes and free from all
other defects, including defects in design, and (d) will be free
from any and all security interests, claims, demands, liens or
other encumbrances. In the event Seller is required to replace or
correct any component of any item pursuant to a breach of the
foregoing warranty, the running of the warranty period for the item
of which the defective component is a part, shall be suspended from
the date Seller receives notice of the breach of warranty until the
date the component is replaced or corrected. Buyer’s approval
of Seller’s samples or first articles shall not be construed
as a waiver by the Buyer of any requirement of the drawings,
specifications and/or other referenced descriptions applicable
hereto or of any express or implied warranty.
9.
DEFECTIVE OR
NONCONFORMING ITEMS/BREACH OF WARRANTY. In the event of Seller’s
delivery of defective or nonconforming items or Seller’s
breach of warranty, Buyer may at its election and in addition to
any other rights or remedies it may have at law or equity or under
this order, recover from Seller any costs of removing such items
from property or products in which such items have been
incorporated, and any additional costs of reinstallation,
reinspection and retesting and (a) return the items at
Seller’s risk and expense and recover from Seller the price
paid therefore and, if elected by Buyer, purchase or manufacture
similar items and recover from Seller the costs and expenses
thereof, (b) accept or retain the items and equitably reduce their
price, or (c) require Seller, at Seller’s expense to promptly
replace or correct the items and pending redelivery, to repay Buyer
any amount Seller’s customer paid for such items. If Seller
fails to promptly replace or correct such items as directed by
Buyer, Buyer may repair them or have them repaired at
Seller’s expense or purchase or manufacture similar items and
recover from Seller the costs and expenses thereof.
10.
TERMINATION.
Buyer may terminate this order in whole or in part at any time by
written notice stating the extent and effective date of such
termination. Upon receipt thereof, Seller shall to the extent
directed by Buyer (i) stop work under this order and place no
further orders relating hereto (ii) terminate work under
outstanding orders, which relate to work terminated by such notice
and (iii) protect property in Seller’s possession in which
Buyer has or may acquire an interest. Buyer reserves the right to
terminate this order in whole or in part for default (i) if Seller
fails to perform in accordance with any of the requirements of this
order or to make progress so as to endanger performance hereunder,
or (ii) if Seller becomes insolvent or suspends any of its
operations or if any petition is filed or proceeding commenced by
or against Seller under any state or federal law relating to
bankruptcy, arrangement, reorganization, receivership or assignment
for the benefit of creditors. Any such termination will be without
liability to Buyer for any or all property produced or procured by
Seller for performance of the work terminated and Seller shall be
credited with the reasonable value thereof not to exceed
Seller’s cost.
9
11.
EXCUSABLE
DELAYS. Neither party
shall be in default for any delay or failure to perform hereunder
due to causes beyond its control and without its fault or
negligence, provided that any delay or failure to perform caused by
default of a supplier of the Seller, must be beyond the control of
both Seller and such supplier and without the fault of or
negligence of either and the items to be furnished must not be
obtainable from other sources in sufficient time to permit Seller
to meet the delivery schedule and provided further, that Seller
furnishes prompt written notice to Buyer of the occurrence of any
such cause which will or may delay Seller’s
performance.
13.
INDEMNIFICATION.
Seller shall indemnify and hold Buyer harmless, its employees,
agents and invitees from and against all liability, demands,
claims, loss, cost, damage and expenses by reason of or on account
of property damage, death and personal injury of whatsoever nature
or kind arising out of, as a result of, or in connection with the
performance of the order and the Filler Supply Agreement entered
into between the parties which is occasioned by the acts or
omissions of Seller or its suppliers.
16.
ASSIGNMENT AND
SUBCONTRACTING. Any
assignment of this order or the work to be performed, in whole or
in part, or of any other interest hereunder, without Buyer’s
written consent shall be void. Seller agrees not to subcontract for
any complete or substantially complete materials, supplies and/or
services called for by this order without the prior written
approval of Buyer.
17.
RIGHTS AND REMEDIES
OF BUYER. The rights
and remedies of Buyer set forth herein shall be in addition to any
other rights and remedies provided in law or equity and the failure
or delay by Buyer to exercise any rights or remedies hereunder
shall not operate as a waiver thereof, or preclude the exercise of
any other rights or remedies.
18.
GOVERNING LAW;
DISPUTES. This order
is to be interpreted in accordance with, and its administration and
performance governed by, the laws of the State of North Carolina.
The parties hereto agree that Charlotte, North Carolina shall be the exclusive
forum for any cause of action filed in any court of law or equity
arising out of the execution of or performance under this order.
Notwithstanding the foregoing, in the event Buyer is located
outside the United States of America and purchases items pursuant
to the terms hereof for use outside the United States of America,
any dispute between such Buyer and Seller respecting the items so
purchased shall be finally resolved by arbitration in the English
language in Charlotte, North Carolina, U.S.A. in accordance with
the rules then obtaining of the American Arbitration Association,
and judgment upon the award rendered may be entered in any court
having jurisdiction thereof.
10
Exhibit
B
Pricing Structure
For
Beauty & Xxx Xxx
The prices below include warehousing and filling and other related
Services. Prices are based upon Scope of Work outlined
below.
[to follow]
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