EXHIBIT 10.20
DATED 31 OCTOBER 1996
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(1) BPC CATALOGUES LIMITED
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(2) VIKING OFFICE PRODUCTS, INC.
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EUROPEAN
PRINTING AGREEMENT
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THIS AGREEMENT is dated 31 October, 1996.
BETWEEN:-
(1) BPC CATALOGUES LIMITED, an English company, whose registered office is at
Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxxxx XX00 0XX, Xxxxxxx (the "Printer");
and
(2) VIKING OFFICE PRODUCTS, INC. a California Corporation, having an office at
000 Xxxx 000xx Xxxxxx, Xxx Xxxxxxx, XX 00000, XXX (the "Publisher").
WHEREAS the Printer and the Publisher wish to enter into an agreement for the
printing by the Printer of certain quantities of the Viking Office Products
European Catalogues Program on the terms and conditions hereinafter set forth.
IT IS HEREBY AGREED as follows:-
1. DEFINITIONS
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1.1 In this agreement the following words and expressions shall have the
following meanings unless the context otherwise requires:-
"Affiliate" shall mean in respect of any party a company which is a
Subsidiary or Holding Company of such party or a
Subsidiary of such Holding Company;
"Catalog" shall mean the catalogs that the Publisher or any of its
Affiliates may from time to time publish (including
without limitation all catalogs falling within the
specific catalog types A, E, F, G, H, K, M, N, P, R, V,
W, X, Y);
"Catalog Program" shall mean the Publisher's and its Affiliates' entire
program for the publishing of Catalogs;
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"Drop Dates" shall mean the dates in the Production Schedule on
which it is intended that the Catalogs in question
will be ready for mailing or pick up;
"film" the film to be supplied by the Publisher to the
Printer, all such film to be in the form of single
page film or such digital data form as is agreed
between the parties from time to time;
"Forecast Schedule" shall mean the forecast to be provided by the
Publisher from time to time pursuant to Clause 2.2;
"Prepress Service" shall mean the provision of basic pre-press
services, equipment, utilities, labor, supervision
and production materials for the production of film
origination and supply of proofing of that
origination including without limitation the supply
of film;
"Prices" shall mean in respect of each of the countries
comprised within the Territory as appropriate, the
prices to be charged to the Publisher for the Work
as set forth in the Price Matrix or as may be
varied in accordance with Clause 5 or as otherwise
agreed between the parties;
"Price Matrix" shall mean the price matrix approved by the Printer
and the Publisher in writing from time to time
setting out the Prices;
"Production Schedule" shall mean the schedule for the production of the
Work to be agreed from time to time in the course
of this agreement in accordance with Clause 3;
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"Quarter" shall mean as the context requires the three month
period commencing on either 1st January, 1st April,
1st July or 1st October;
"Retail Prices Index" shall mean the index entitled "Retail Prices
Index - All Items" prepared by the Central
Statistical Office and published by the Department
of Employment or, if that index is no longer
published, the nearest equivalent statistical index
agreed upon by the parties or failing such
agreement selected by an expert agreed by the
parties or in the event of a failure to agree
chosen by the President for the time being of the
Institute of Chartered Accountants in England and
Wales;
"Subsidiary" and shall have the meanings ascribed to them in Section
"Holding Company" 736 Companies Act 1985 (as amended);
"Territory" shall mean the countries listed in Schedule A
hereto;
"Work" shall mean the provision of all labor, supervision,
equipment, utilities, facilities and production
materials for cylinder or plate making, press work,
binding, packing, loading and all other work
necessary to complete the printing manufacture and
the preparation for delivery of the Catalogs
including without prejudice to that generality
placing the Catalogs into plastic envelopes
suitable for marking and attaching labels bearing
addressees' names and addresses to such envelopes;
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2. QUANTITIES
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2.1 Subject to sub-clause 2.4 below, the Printer agrees to print and the
Publisher agrees to purchase and to procure that its Affiliates shall
purchase from the Printer during the term of this Agreement the Publisher's
and its Affiliates entire printer requirements for the Catalog Program in
the Territory in accordance with the terms of this Agreement.
2.2 In order to assist the Printer in providing for the Publisher's
requirements, the Publisher shall on the 1st of August of each year of this
Agreement submit a forecast in respect of the twelve month period
commencing on the immediately following 1st January such forecast in each
case to show the publishers and its Affiliates' total requirements
hereunder, including, without limitation, in respect of each country
comprised in the Territory and for each type of Catalog, the number of
copies and pages, for each issue to be published in the relevant twelve
(12) month period and the Drop Date (as referred to in the Production
Schedule) when the Printer is required to have completed the work in
respect of that issue. All film to be supplied by the Publisher shall be
provided in accordance with the terms of this Agreement in good time so as
to enable the Printer to comply with the Forecast Schedule in accordance
with the time for performance set out in the Production Schedule and so
that the Printer shall be required to perform its obligations any faster
than provided for in the Production Schedule. The Publisher shall not in
any way be limited by nor obligated to the requirements shown on such
forecast.
2.3 Subject to Clause 2.4 below any variation from total quantities ordered are
the responsibility of the Printer. The Publisher reserves the right to
purchase overrun copies up to 1% of the print order at the invoiced price
per thousand copies.
2.4 In the event that any of the Publisher's printing requirements for the
Catalog Program cannot be met by the Printer, the Printer shall so inform
the Publisher and shall use its reasonable endeavours to assist the
Publisher to place the work with a suitable alternative.
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3. THE WORK
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3.1 Subject to the provisions of this agreement, the Printer shall perform, or
procure the performance of, in a good and workmanlike manner, the Work at
the Printers' facilities at East Kilbride and Bristol or at any other
facilities of the Printer or its Affiliates (at no additional manufacturing
cost to Publisher) or, with the Publisher's prior written consent (such
consent not to be unreasonably withheld), a third party in accordance with
the Forecast Schedule and the Production Schedule.
3.2 The Publisher will be responsible for the Prepress Service for the
Catalogs.
3.3 The Publisher and Printer shall use their best efforts to agree on
Production Schedules at least two months prior to the date on which the
Production Schedule is due to come into force.
3.4 If overtime is required to meet any Drop Date due to the Publisher's
failure to comply with Production Schedules or any change to the Forecast
Schedule (and notwithstanding the last sentence of Clause 2.2), the Printer
will use its reasonable efforts to make any necessary overtime available
and will charge for such overtime at negotiated and mutually agreed upon
rates. If overtime is required due to the Printer's internal scheduling
problems arising after a Production Schedule is agreed upon and is not due
to Publisher's failure to comply with the Production Schedule or any change
to the Forecast Schedule, overtime charges will not be made. No chargeable
overtime will be worked without Publisher's prior approval, and in the
absence of such approval, delivery of the Work will be made as soon as
practicable, consistent with the Printer's then available capacity.
3.5 The Publisher shall provide the Printer with all films in accordance with
the requirements of Clause 2.2, such films to be of a good quality and so
as to enable the Printer to carry out its obligations hereunder. The
Publisher shall also provide the Printer with all such other assistance and
co-operation as is reasonably required by the Printer in order to carry out
its obligations hereunder.
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4. WARRANTY
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4.1 Printer shall perform the Work in a good and workmanlike manner and in
accordance with the Forecast Schedule and the Production Schedule. The
Production Schedule will be updated by agreement of both parties on or
before 1st August of each year during the term of this Agreement.
4.2 In the event that Publisher submits materials in accordance with the
Forecast Schedule, and subject to Clause 2.2 above Printer is unable to
meet the Drop Dates of the Publisher, Printer shall place said work at no
additional cost to the Publisher with a qualified mutually agreeable
resource (whether the Printer or a third party) to effect and meet the Drop
Dates in question.
4.3 If the Printer fails to meet Drop Dates, the Printer and the Publisher
shall endeavour to arrive at a mutually satisfactory arrangement to
compensate the Publisher for loss. Should the parties fail to arrive at a
mutually satisfactory settlement, parties will submit the dispute to
Binding Arbitration in the City of London, England before a single
Arbitrator in accordance with the rules and procedures of the Governing
Arbitration Association. Arbitration in London shall be the sole forum for
the resolution of such dispute, and the decision of such Arbitrator shall
be final and not subject to appeal by either party.
4.4 Any change requested by Publisher in the Production Schedule or Forecast
Schedule shall require, in each case, the prior consent of Printer. Printer
shall use its reasonable efforts to accommodate such request but may
decline to do so if, i) such changes are not feasible or practical because
of limitations of labour or equipment, ii) the equipment being utilized by
Printer for the Work is unable to accommodate such change, or iii)
Publisher and Printer fail to agree on such adjustment of Prices as is
necessary to reflect any resulting increases in unit cost.
4.5 This is a performance-based Agreement. If either party, Printer or
Publisher, fails to fulfil its respective obligations under the terms of
this Agreement, the other party shall have the right to terminate this
Agreement, pursuant and subject to the following
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provisions: Written notice must be submitted to the party in default
specifying in detail the failure or failures that the claiming party claims.
If such failures are not fully corrected within ninety (90) days of the date
of such notice to the reasonable satisfaction of the party giving such
notice, such party shall have the right to terminate this Agreement, by
giving written notice to that effect, in which case this Agreement will
terminate thirty (30) days after the date of the termination notice, without
prejudice to any claims or rights of the non-defaulting party under this
Agreement.
5. PRICES, PRICE ADJUSTMENTS AND TERMS OF PAYMENTS
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5.1 The Publisher shall pay the Printer the Prices for the Work for duration of
this Agreement in accordance with this Clause 5. The Prices in the initial
Price Matrix will be based on the cost of materials furnished by the
Printer, scales of wage rates and other terms of employment and overheads of
the Printer in effect on 1 January 1996 and thereafter.
5.2 Prices shall be adjusted on or about 1st January of each year during term of
this agreement by the change in the Retail Prices Index over the relevant
period subject to a cap of 3% to reflect manufacturing costs (defined as
labor and variable overheads) which currently constitute 70% of total
manufacturing costs. The first of such adjustments shall take place on 1st
January 1998.
5.3 The components of the Prices for ink and other materials shall be adjusted
from time to time by adding thereto or subtracting therefrom the actual
percentage increase or decrease to the Printer for such materials since the
prior escalation.
5.4 Prices adjusted in accordance with this Clause 5 shall become effective in
relation to the Work performed for any Drop Date following the date of
delivery to the Publisher of the revised Price Matrix referred to in Clause
5.5, irrespective of the date of billing.
5.5 The Printer shall furnish the Publisher with a revised Price Matrix as soon
as practicable after each such increase or decrease, together with a
detailed breakdown
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of all such adjustment in Prices. Such revised Price Matrix shall be the
basis for subsequent price adjustments.
5.6 Upon the reasonable request by the Publisher within six (6) months of
notice of a price change, the Printer shall furnish the Publisher with
documentary proof, including invoices, bills and statements, reasonably
supporting the price adjustments provided for in this Agreement. The
Publisher shall also be entitled to receive, provided the Publisher so
requests in writing and pays for, a signed opinion by the Printer's then
independent certified public accountants (which accountants shall be
permitted to examine invoices, statements and other such documents of the
Printer that show costs of materials and all costs which are relevant to
determining price adjustments hereunder) to the effect that they have
examined such records of the Printer and that the adjustments in Prices
result from actual changes in costs and have been computed correctly and
in accordance with the terms of this agreement. If any price adjustment or
amount payable to the Printer was incorrectly or improperly determined,
the price or amount in question shall be properly recomputed and
appropriate adjustments shall promptly be made.
5.7 The Publisher shall pay the Printer for the Work in pounds sterling, net
cash, due within 40 days from the date of receipt of invoices for Work.
Publisher shall pay interest at 1% per annum above the bank base rate of
Lloyds Bank PLC calculated on a day to day basis on any invoice amount
outstanding after the due date, except for amounts disputed in good faith
by Publisher as provided below. In the event the Publisher shall
reasonably dispute any amount of any invoice, the Publisher shall notify
the Printer in writing of the dispute, specifying in detail the basis for
disputing the invoice, and the amount in dispute and pay to the Printer
that portion of the invoice not in dispute in accordance with the
foregoing. The parties shall use their reasonable efforts to resolve any
such disputes as promptly as possible.
5.8 All copies of the Catalogs shall be shipped FOB Printer's dock. The costs
of all freight will be prepaid and billed directly to the Publisher by the
Printer at the rate set out in the Price Matrix.
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5.9 The Prices are exclusive of any value added tax or other similar tax, levy
or imposts which shall, if applicable, be payable in addition on the
rendering by the Printer of the appropriate invoice.
5.10 Unless otherwise specified, the Prices do not cover storage of materials
(other than paper), work-in-progress or finished goods held or conducted
beyond the Production Schedule span. If the Publisher delays completion of
the Work or postpones delivery of finished goods beyond the date specified
in the Production Schedule, or if the Publisher's furnished materials
arrive prior to the dates specified in the Forecast Schedule, storage will
be charged at the prevailing rates for the period that the finished goods,
work-in-progress or furnished materials remain in the Printer's
possession.
5.11 The Prices do not include the costs of correcting mistakes or making
changes to prepared film, which the Printer shall carry out if feasible
and if requested for a mutually agreed fee.
6. PAPER SUPPLY
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6.1 The Prices do not include the price of any paper furnished by the Printer
or the Publisher for the Work.
6.2 The Printer agrees to act as paper merchant on behalf of the Publisher in
accordance with the paper supply procedures set out in Schedule B.
6.3 The Printer agrees to supply paper if requested by the Publisher in
writing at such price as may be agreed between the parties at the time of
such request two months' prior to the beginning of the Quarter in which
the scheduled print date falls (as set out in the Forecast Schedule).
6.4 If the Publisher does not request the Printer to supply paper in
accordance with Clause 6.2, or if following any such request the parties
are unable to agree upon the price at which such paper is to be supplied,
the Publisher agrees to furnish sufficient paper for
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the Work (including a 10% buffer stock to accommodate unforeseen printing
problems) in accordance with the specification and conditions as agreed
upon between Printer and Publisher in writing from time to time at least
seven days before the scheduled print date (as set out in the Forecast
Schedule). If an identifiable substandard and/or defective paper roll or
series of rolls is received by the Printer which affects runnability or
printability, the Printer will provide prompt notification to the Publisher
by telephone upon discovery of such substandard or defective condition,
confirming such notification to the Publisher in writing within three (3)
business days. If after such telephone notification, the Printer is
required by the Publisher to use said paper to perform the relevant Work
and incurs extra cost as a result thereof, said cost will be charged to and
paid by the Publisher.
6.5 The Publisher agrees to pay a paper handling charge of 0.88 (Pounds) per
cwt of paper handled by the Printer under this Agreement (whether supplied
by the Printer or the Publisher) in accordance with the payment terms set
out in Clause 5.7.
6.6 The Printer agrees to store paper free of charge for a period of 90 days.
Thereafter, the Publisher agrees to pay the Printer (in accordance with
Clause 5.7) 4.84 (Pounds) per month or part thereof per tonne of paper
stored.
6.7 Upon completion of the production of each job, the Printer shall furnish
the Publisher with an inventory report documenting paper used in the
production of that job. The Printer shall conduct a semi-annual inventory
confirmation and reconciliation of all paper consumed after the production
of six months of jobs. Should the paper consumed during the accounting
period exceed the allowances as agreed between the Printer and Publisher in
writing from time to time per paper stock type, the Printer shall
compensate the Publisher for the paper overconsumed by replenishing that
particular stock inventory pound for pound of paper overconsumed. Should
the amount of paper consumed during this accounting period be less that
allowed as agreed between the Printer and the Publisher in writing from
time to time, the Publisher shall share with the Printer 50% of the savings
which shall be based upon the pounds of paper per grade and weight during
the accounting period. This final
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settlement shall be based upon the sum total of over and/or
underconsumption per paper grade. Manufacturing waste will be the property
of the Printer.
6.8 If there is a paper stock deficit due, inter alia, to increased paginations
or print quantities or paper fault problems, the Printer shall use its
reasonable endeavours to replace such stock with the nearest suitable
alternative. The Publisher shall pay for the replacement stock at cost to
the Printer of such replacement stock.
6.9 Should the Publisher propose the use of grades of paper different from
those agreed upon between the Printer and Publisher in writing from time to
time, then such paper will be subject to a trial procedure to be determined
by the Printer. This trial procedure must be completed to the satisfaction
of the Printer before the Publisher may request the inclusion of such paper
in any Work.
7. EQUIPMENT AND TECHNOLOGY
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7.1 The Publisher may from time to time request the Printer in writing to
install new equipment or modify its existing equipment either (i) to take
into account technological changes and changes in the practices of the
catalog printing industry or (ii) to print copies of the Catalogs other
than by the roto or web offset processes. The Publisher, at the time of
these requests, must provide the Printer with a preliminary forecast of the
volume affected by this new investment(s) including efforts, quantities,
and a projected time frame for implementation. As soon as practicable after
such request, the Printer shall notify the Publisher in writing whether or
not the requested addition or modification is technologically possible,
practical and whether or not such change can be effected. If the Printer
determines that such changes are feasible, the parties shall thereafter
negotiate in good faith the adjustment of the Prices necessary to reflect
any change in cost or any resulting savings which will be realized in the
Work as a result of such change and to enable Printer to recover the cost
of all capital expenditures necessary for such addition or modification. If
the Printer and the Publisher cannot agree on the requested modifications
or additions to equipment/and or pricing adjustments for the same and/or
volume and timing commitments for the same, the requested modifications
shall not be implemented. The Printers
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determination that such changes are not feasible will not constitute a
breach of this Agreement.
7.2 The Parties have separately agreed in writing upon certain capital
investments to be made by the Printer.
8. TERM AND TERMINATION
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8.1 The term of this agreement shall commence on 1st January 1997 and end upon
the completion of the Work for the first Drop Date following 31st December
2001.
8.2 The Printer and the Publisher reserve the right to check prevailing market
pricing in 1999. Unless otherwise agreed in writing by the parties, this
check will be performed via the solicitation of manufacturing proposals for
the entire Catalog Program from no less than three mutually agreed upon
vendors. Should either party identify significant differences between the
average of these solicited proposals and the Prices, both parties agree to
make appropriate and mutually agreed upon adjustments to the Prices to be
effective from 1st January 2000. If the parties hereto fail to reach
agreement within ninety (90) days of submission of the results of the market
pricing check referred to above by either party to the other, the issue
shall be submitted to arbitration, the rules and procedures of which shall
be mutually agreed upon by the parties.
8.3 Publisher may terminate this agreement upon the permanent discontinuance in
good faith of the Catalog Program (in all the Territory) without publication
of successor or similar catalogs, whether named Viking or not. Publisher
shall notify Printer at least twelve (12) months in advance of the effective
date of such discontinuance. The publication of a nominal number of copies
for the sole purpose of protecting a trademark shall not be deemed a
continuation of publication.
8.4 Upon termination of this agreement for whatever cause, all unpaid sums for
any of the Work done or in process as of the date of termination, whether or
not invoiced at that date, shall become immediately due and payable. In the
event of termination pursuant
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to Paragraph 8.3 above, the Publisher shall also reimburse the Printer for
costs related to work in progress which it cannot reasonably avoid.
8.5 Termination of this agreement for whatever cause shall not affect any
rights of either party which have accrued due up to the date of such
termination.
9. FORCE MAJEURE
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9.1 If either party is unable to perform hereunder because of war, fire,
strikes, labor strife or slowdown, civil commotion, freight embargoes,
material shortages, floods, or other acts of God, action of any
governmental authority (including, without limitation, priorities or
restrictions effected pursuant to the provisions of emergency legislation
by any governmental authority) or any other causes of like or unlike nature
beyond its reasonable control, the party so unable to perform shall give
prompt notice thereof and shall thereby be excused from such performance
during the continuation of such period of inability, provided, however,
that the Publisher shall accept and pay for all copies of the Catalogs that
have been printed for it before its written notice to the Printer of any
such inability to perform. If such interruption shall continue for a period
of two (2) months or more, either party shall have the right to terminate
this agreement at the expiration of said period by giving the other party
thirty (30) days advance notice thereof.
9.2 If the Printer notifies the Publisher in writing that it is unable to
secure one or more of the materials necessary for production of the
Catalogs required hereunder to be furnished by the Printer, the Publisher
may, at its option, purchase such materials and furnish them to the Printer
until such inability ceases. In such case, the Publisher shall be granted
an allowance equal to the cost of the materials supplied.
10. INDEMNITY
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10.1 Publisher shall indemnify and hold Printer harmless from and against any
and all claims for libel, infringement of any intellectual property rights
including without prejudice to that generality copyright and rights in the
nature of copyright, plagiarism,
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unauthorized additions, omissions, or modifications, and any other claims
that any rights have been infringed by the literary or art work included in
the Catalogs; provided that such claims are based upon matters which were
contained in the copy furnished to Printer by Publisher and are not based
on any unauthorized deletions, modifications or additions to such copy by
Printer.
10.2 Printer shall promptly notify Publisher of any and all claims referred to
in Clause 10.1 above in writing, and shall afford Publisher an opportunity
to defend the same for and on behalf of Printer. Publisher shall pay the
cost of such defense, whether it shall be conducted by Publisher or by
Printer at Publisher's request, provided that notice of suit and
opportunity to defend shall have been given as aforesaid. If Publisher
elects to defend such suit, Printer may participate in such defense at its
own expense.
10.3 Printer similarly shall indemnify and hold Publisher harmless from and
against all claims or suits for libel, infringement of any third party
intellectual property rights including without prejudice to that generality
copyright and rights in the nature of copyright, plagiarism, unauthorized
additions, omissions or modifications, and any other claims that any such
rights have been infringed as aforesaid, because of the failure by the
Printer or any of its employees accurately to reproduce the copy, art work
and illustrations furnished by Publisher subject to terms set out in Clause
10.2 above which shall apply mutatis mutandis.
11. CREDIT REVIEW
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Should there be substantial adverse change in Publisher's credit standing
or in the event that Publisher does not comply with the payment provisions
hereunder, Printer shall have the right to change terms of payment and its
obligation to perform further work will be subject to reaching mutual
agreement on such revised terms.
12. INSOLVENCY
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Either party may terminate this agreement by notice in writing to the other
if the other party is unable to pay its debts as they ordinarily become due
or enters into
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compulsory or voluntary liquidation or bankruptcy (other than for the
purpose of effecting a solvent reconstruction or amalgamation in such a
manner that the company resulting from such solvent reconstruction or
amalgamation if a different legal entity shall agree to be bound by and
assume the obligations of the relevant party under this agreement) or
compounds with or convenes a meeting of its creditors or has a receiver,
manager, trustee, liquidator, administrative receiver or administrator
appointed over its assets or if it ceases for any reason to carry on
business or takes or suffers any similar action which in the reasonable
opinion of the party giving notice means that the other may be unable to
pay its debts.
13. INSURANCE
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The Printer shall carry, at its expense, fire, sprinkler leakage and
extended coverage insurance, subject to the usual exclusions, limitations
and conditions of such policies, for the Catalogs, all work in progress and
paper supplied by the Printer or the Publisher under this agreement while
in the Printer's facilities, excluding the value of any materials furnished
by the Publisher (other than paper), and on all materials furnished by the
Printer (other than paper), to the earlier of the date of shipping or date
of invoicing. The Publisher shall carry such insurance as it deems
desirable on furnished positives, copy and other materials furnished by it
(other than paper), whether or not in process or completed, including the
balance of work performed in creating or producing such furnished items
and, as to the value of the Printer's work or materials furnished to the
Printer, on production completed which has been finally invoiced but not
shipped. To the extent that the Publisher carries such insurance, the
Publisher shall provide a waiver of subrogation in the Printer's favour on
materials furnished by the Publisher.
14. LIMITATION OF LIABILITY
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14.1 The following provisions set out the Printer's entire liability to the
Publisher in respect of (a) any breach of its contractual obligations
arising under this contract; and (b) any representation, statement or
tortious act or omission including negligence arising under or in
connection with this contract (hereafter an "Event of Default"). Subject to
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Clause 15.4, the Printer shall only be liable to the Publisher in respect
of any Event of Default for loss (including loss or damage suffered by the
Publisher as a result of an action brought by a third party) where the
Publisher, first, (i) has served written notice of the Event of Default
upon the Printer within six (6) months of the date upon which the same has
occurred, and (ii) has afforded the Printer sixty (60) days to remedy such
Event of Default.
14.2 In the event Work is defective or delayed due to Printer's fault, Printer
shall not be liable for any special, indirect or consequential damages,
including, but not limited to, loss of advertising, circulation, profits,
income or revenue.
14.3 Save as expressly contained herein, all warranties, conditions or
representations, express or implied, statutory or otherwise are hereby
expressly excluded.
14.4 Nothing in this agreement shall affect either party's liability to the
other for death or personal injury resulting from its own or that of its
employees' agents' or sub-contractors' negligence.
15. SALE OF PUBLICATION
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15.1 If Publisher proposes to sell the whole or any part of the Catalog
Program, or to sell all or any of its Affiliates (or the business and
assets of any such Affiliates), (or any agreement is entered into by any
of its Affiliates for the sale of all or any of its Affiliates (or the
business and assets of any such Affiliates) or if the Publisher proposes
to dispose of its business and assets or any part thereof, the Publisher
shall use its best efforts to notify and advise Printer in advance of any
such sale giving Printer details of the name or any prospective purchaser,
and the proposed date of any sale. Publisher shall keep Printer fully
advised of the progress of any such proposed sale and Printer shall keep
such information confidential. Publisher shall, in any event, procure
that, concurrently with the consummation of any such sale, the purchaser
shall enter into an agreement with Printer, in terms substantially the
same as those set out in this Agreement such terms to be satisfactory to
both Printer and Publisher, pursuant to which such purchaser shall agree
to purchase its entire printing requirements for any
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catalogs to be published by such purchaser and which catalogs prior to any
such sale would have formed part of the Catalog Program and so that such
purchaser shall assume all of Publishers obligations hereunder.
15.2 If Printer shall not consent to the assignment by Publisher to such
prospective purchaser or if terms satisfactory to Printer in accordance
with Clause 15.1 cannot be established, this agreement shall at the option
of the Printer terminate upon the first to occur of the following events:
(a) the consummation of any such sale as is referred to in Clause 15.1,
or
(b) the expiration of 180 days after Printer advises Publisher that
Printer will not consent to the proposed assignment or that
satisfactory terms cannot be agreed, unless within such 180 day
period the Publisher notifies the Printer that the Publisher does not
propose to consummate such sale.
16. LIEN ON PROPERTY
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As security for payments of any sum due or to become due Printer under the
terms of this agreement, Printer shall have the right, if necessary, to
retain possession of and shall have a particular as well as a general lien
on all property owned by Publisher and in Printer's possession, and all
work in progress and undelivered Work.
17. REPRESENTATIVES
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17.1 Publisher may at any time designate a production representative to visit
Printer's plant to observe, monitor and review quality, production,
scheduling, delivery, paper, and other matters related to performance
under this agreement. Printer shall cooperate with and afford such
employee reasonable access to its premises and personnel to facilitate
performance of such functions.
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17.2 The Printer shall pay transport costs (by business class or equivalent
standard) and accommodation for one of the Publisher's representatives to
visit the Printer's manufacturing facilities on up to six (6) visits per
calendar year.
18. ASSIGNMENT
----------
This agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns. Publishers may not
without the written consent of the Printer assign this agreement to any
party other than a party who has acquired or is acquiring the Catalog
Program (subject to Clause 15 above). No assignment of this agreement shall
be made by either party to anyone other than an Affiliate without consent of
the other party, which consent shall not be unreasonably withheld. In
determining reasonableness as provided above, the relevant factors shall be
the financial strength and the reputation of the assignee and the assignee's
ability to comply with the provisions and obligations of this agreement. The
assignees shall in each case assume in writing all of the obligations of the
assignor.
19. GOVERNING LAW
-------------
This agreement shall be governed by and construed in accordance with the
laws of England and Wales applicable to contracts made and to be performed
therein, and each party hereto submits to the exclusive jurisdiction of the
Supreme Court of England and Wales.
20. NOTICES
-------
All notices, claims, requests, demands, invoices and other communications
hereunder will be in writing and will be deemed to have been duly given if
delivered personally or transmitted by telecopier as follows:-
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(a) If to Publisher:-
Attention: Xxx Xxxxxxx
Telecopy Number: 000-000-0000
With a copy to: Xxxx Xxxx
(b) If to Printer:-
Attention: X. Xxxxxx
Telecopy Number: 013552 848376
with a copy to
Xxxxx Xxxxxxx
The British Printing Company Limited
Xxxx Xxxxxx
Xxxxxxxxx
Xxxxxxxxxxxxxxx
XX00 0XX
Telecopy number: 01296 330162
21. ACCEPTANCE
----------
This agreement, and any supplement, modification or amendment thereto,
shall not be valid or become effective unless signed by a duly authorized
officer of Printer.
22. ENTIRE AGREEMENT
----------------
This agreement, the Price Matrix and the other Schedules and documents
referred to herein contain the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior negotiations,
memoranda, agreements and understandings. This agreement cannot be changed
or terminated orally.
23. CONFIDENTIALITY
---------------
23.1 Each party shall during the full term of this agreement and thereafter
keep secret and confidential all information disclosed to it by the other
party or otherwise belonging to the other party (and shall procure that
its agents and/or employees are similarly bound) and shall not disclose
the same to any person save to the extent necessary to
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the proper performance of its obligation in accordance with the terms of
this agreement and save as expressly authorized in writing to be disclosed
by the other party. For the avoidance of doubt and without prejudice to the
foregoing, the terms and conditions of this Agreement and all production
information relating to the Catalog Program is confidential information.
23.2 The obligation of confidentiality contained in Clause 23.1 shall not apply
or (as the case may be) shall cease to apply to information which:
(a) at the time of its disclosure by the disclosing party is already in
the public domain or which subsequently enters the public domain other
than by breach of the terms of this agreement by the receiving party;
(b) is already known to the receiving party (as evidenced by written
records) at the time of its disclosure by the disclosing party and was
not otherwise acquired by the receiving party from the disclosing
party under any obligations of confidence;
(c) is at any time after the date of this agreement acquired by the
receiving party from a third party having the right to disclose the
same to the receiving party without breach of obligation owed by that
third party to the disclosing party; or
(d) is required to be disclosed by applicable law or order of a court of
competent jurisdiction or government department or agency, provided
that prior to such disclosure the receiving party shall advise the
disclosing party of the proposed form of the disclosure.
24. WAIVER
------
The failure of a party to insist in any one or more instances upon the
performance of any provisions of this agreement shall not be construed as a
waiver or relinquishment
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of that party's rights to future performance of such provision and the
other party's obligation in respect of such future performance shall
continue in full force and effect.
25. SEVERABILITY
------------
25.1 If Clause 2.1 of this agreement becomes void or unenforceable as a result
of any decision, opinion or finding of any court or regulatory body of
competent jurisdiction, each of the Printer and the Publisher shall at
their sole discretion have the option to terminate by notice in writing to
the other.
25.2 Insofar as any part or provision of this agreement other than Clause 2.1 is
or becomes void or unenforceable it shall be deemed not to be or never to
have been or formed a part of this agreement and the remaining provisions
of this agreement shall continue in full force and effect. The parties
shall meet to discuss the void or unenforceable provisions and shall
negotiate in good faith to substitute therefor a lawful and enforceable
provision which so far as possible results in the same economic effects.
26. NO JOINT VENTURE OR PARTNERSHIP
-------------------------------
Nothing in this agreement shall create a partnership or joint venture
between the parties hereto and save as expressly provided in this agreement
neither party shall enter into or have authority to enter into any
engagement or make any representation or warranty on behalf of or pledge
the credit of or otherwise bind or oblige the other party hereto.
27. EXECUTION
---------
Each party warrants to the other party hereto that the signatories hereto
for and on behalf of that party are authorized and fully empowered to
execute this agreement on that party's behalf.
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IN WITNESS WHEREOF the parties have caused this agreement to be executed as of
the day and year first above written.
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SCHEDULE A
----------
THE TERRITORY
-------------
United Kingdom
Belgium
France
Netherlands
Ireland
Luxembourg
Denmark
Finland
Norway
Sweden
Germany
Italy
Austria
Czech Republic
Switzerland
Poland
Hungary
Spain
SCHEDULE B
----------
PAPER SUPPLY PROCEDURES
-----------------------
1. CONTROL PROCEDURES
------------------
All deliveries to the Printer will be arranged via a representative of the
Printer as notified by the Printer to the Publisher in writing from time to
time (the "Printer's Representative") who will discuss and agree tonnage's,
reel sizes, delivery requirements and designate which Printer's plant will
receive the stock.
The Printer will communicate directly with merchants and/or xxxxx to ensure
timely delivery and will keep the Publisher informed of any possible
problems.
Upon receipt of stock the Printer will verify safe delivery or document
faulty reels. Tonnages received will be noted and cross checked against
supplier consignment note.
A weekly paper statement, split out grade by grade, will be published to
provide the Publisher with sufficient detail to track stock receipts.
Paper usage will be documented on the catalog first invoice, this usage will
show contractual requirements. Actual consumption will then be provided upon
completion of the said catalogue.
A paper inventory will be kept as a running total grade by grade to
accommodate stock surpluses and to show stock deficits produced by over-under
consumption. The deficits/surpluses could come from genuine over/under
consumption or through changes to the forecasted paginations or quantities.
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2. COMMUNICATION
-------------
All communications relating to the supply of paper shall be handled by the
Printer's Representative from the Printer's premises in East Xxxxxxxxx.
Calculations for expected stock usage and timings for stock deliveries will
be presented on the Last Date of Change Form and Paper Order Verification
Form.
The Printer's Representative will handle all documentation and communications
necessary to ensure all the Printer's Plants are kept fully informed of paper
receipts, quantities and print dates.
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for and on behalf of
Viking Office Products Inc.
Xx. Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx Date 31 October 1996
Xx. Xxxx Xxxx /s/ Xxxx Xxxx Date 31 October 1996
Xx. Xxx Xxxxxxx /s/ Xxx Xxxxxxx Date 31 October 1996
for and on behalf of
BPC Catalogues Limited
Xx. Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx Date 31 October 1996
Xx. Xxx Xxxxxx /s/ Xxx Xxxxxx Date 31 October 1996
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