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PRODUCT PURCHASE AGREEMENT
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THIS AGREEMENT is made this 23rd day of August, 1996 between Carborundum
Corporation, a Delaware corporation with principal offices at Crows Xxxx Xxxx,
Xxxxxxx, Xxx Xxxxxx 00000 ("Licensor") and New Castle Refractories Company, a
division of Xxxxx Ticonderoga Company, a Delaware corporation with principal
offices at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxxxxx 00000 ("Licensee").
FACTS
Pursuant to a License and Technological Assistance Agreement (the
"License Agreement") dated August 23, 1996, Licensor has granted a license to
Licensee with respect to silicon carbide refractory brick technology.
Licensee anticipates that from time to time Licensee will have to
purchase silicon carbide refractory bricks ("Bricks") from Licensor in order to
meet Licensee's obligations under purchase orders from its own customers.
Licensor and Licensee have agreed to establish the parameters under
which Licensee may place orders with Licensor for Bricks.
AGREEMENT
In consideration of the License Agreement and for other good and valuable
consideration, receipt of which is hereby acknowledged, the parties agree as
follows:
1. Licensor grants to Licensee the right to purchase from Licensor the
products listed on Exhibit A attached to this Agreement (the "Products").
Licensor understands that the Products will be purchased for resale and for
comparative testing in the metals market, and consents to such use.
2. Attached to this Agreement as Exhibit B is a list of prices for the
most commonly ordered Brick shapes for each Product. Subject to the other
terms of this Agreement, Licensor agrees to sell the Products to Licensee at
such prices. The prices set forth in Exhibit B may be increased by Licensor
one year from the Effective Date of this Agreement (defined below) by the lesser
of (a) the percentage increase of any general price increase announced by
Licensor or (b) five percent, such increase to take effect for all Products
delivered after such increase. Any price increases will be noted on quotations
made at the time of order placement.
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3. If Licensee places an order for shapes that are not listed on
Exhibit B, then Licensor will determine the prices for such Bricks on a
comparative basis with similar Products that are listed on Exhibit B.
Licensor agrees to use its best efforts to assure consistent pricing with the
listed Products, with consideration being given to brick configuration, brick
size, quantity, required production routing, product specified and any
special requirements such as quality assurance testing, non-standard packaging
or non-standard lead times. Such prices will be determined in good faith by
Licensor and will be based upon brick dimensions and/or brick drawings, related
bills of materials and all other required customer specifications provided by
Licensee to Licensor.
4. In order for Licensee to place orders under this Agreement with the
benefit of the pricing schedule attached as Exhibit B, Products must be ordered
within the two year period commencing on the Effective Date of this Agreement
for shipment upon completion of production. All Products will be shipped
F.O.B. Keasbey, New Jersey pursuant to Licensor's standard terms and
conditions of sale, attached to this Agreement as Exhibit C, and payment will
be net thirty (30) days. All payments will be made in United States dollars
at the office of Licensor set forth at the beginning of this Agreement or at
such other place as Licensor may direct.
5. Licensee acknowledges that the prices set forth on Exhibit B assume
standard lead times in existence at the time of the placement of any particular
order by Licensee. Any orders received by Licensor from Licensee will be
scheduled for production on the same basis as standard customer orders,
within all of the limits of available capacity to which the Licensor's
operations are then subject. Subject to the foregoing, Licensor agrees that
it will deliver up to 400 tons of standard Products to Licensee pursuant to
orders placed pursuant to this Agreement within any rolling three-month period
during the term of this Agreement, not to exceed 1,000 tons in any rolling
twelve-month period.
6. Licensee may not assign this agreement or all or any part of its
rights under this agreement to any other person, firm or corporation without
the prior written consent of Licensor, which will not be unreasonably
withheld by Licensor with respect to an assignment by Licensee to any wholly
owned subsidiary of Licensee.
7. Any notice or other communication to either part to this agreement
required or permitted under this agreement will be in writing and will be
sent by registered air mail, return receipt requested, postage prepaid,
addressed to the address of such party set forth at the beginning of this
agreement or to such changed address as such party shall have communicated to
the other. Any such notice or communication will be deemed to have been
served when delivered or, if delivery is not accepted by reason of the fault
of the addressee when tendered.
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8. All disputes arising in connection with this agreement will be
finally settled by mediation held and conducted in Worcester, Massachusetts
in accordance with the rules of the American Arbitration Association.
Judgment to enforce the agreement reached may be entered in any court having
jurisdiction, or application may be made to such court for a judicial
acceptance of the award and the order of enforcement, as the case may be.
In interpreting the provisions of this agreement, the mediators will apply
the law of the Commonwealth of Massachusetts.
9. This agreement may be executed in several counterparts and each
such counterpart shall be deemed an original of this agreement.
10. This Agreement will become effective (the "Effective Date") when
the License Agreement becomes effective in accordance with its terms. If the
License Agreement does not become effective in accordance with its terms,
then this Agreement will be null and void.
IN WITNESS WHEREOF, Licensor and Licensee have caused this agreement to
be duly executed on the date first above written.
LICENSOR:
Carborundum Corporation
By: /s/ Xxxxxx X. Xxxxxx
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LICENSEE:
New Castle Refractories
Company,
A Division of Xxxxx Ticonderoga
By: /s/ Xxxx Xxxx
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EXHIBIT A
CARBOFRAX
REFRAX 20
REFRAX 20 SBF
SIALFRAX
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EXHIBIT B
Delivered to Company only.
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EXHIBIT C
THE CARBORUNDUM COMPANY
Terms and Conditions of Sale
This Sale is Subject to the Following Terms and Conditions as Well as Those
Appearance on the Attached.
1. AGREEMENT OF SALE; ACCEPTANCE: Any acceptance contained herein is
expressly made conditional on Buyer's assent to any terms contained herein that
are additional to or different from those proposed by Buyer in its purchase
order and, hence, any terms and provisions of Buyer's purchase order which are
inconsistent with the terms and conditions hereof shall not be binding on the
Seller. Unless Buyer shall notify Seller in writing to the contrary as soon
as practicable after receipt hereof, acceptance of the terms and conditions
hereof by Buyer shall be deemed made and; in the absence of such notification,
the sale and shipment by the Seller of the goods covered hereby shall be
conclusively deemed to be subject to the terms and conditions hereof.
2. ENTIRE CONTRACT: This contract constitutes the final and entire agreement
between Seller and Buyer and any prior or contemporaneous understandings or
agreements, oral or written, are merged herein.
3. PRICES: The price to be paid by Buyer shall be the price in effect at
the date of actual delivery of the goods unless otherwise specified in writing
by Seller.
4. TAXES: The price of the goods does not include sales, use, excise, ad
valorem, property or other taxes now or hereafter imposed, directly or
indirectly, by any governmental authority or agency with respect to the
manufacture, production, sale, delivery, consumption or use of the goods
covered by this contract. Buyer shall pay such taxes directly or reimburse
Seller for any such taxes which it may be required to pay.
5. PAYMENT: The specific terms of payment are as specified in writing by
Seller. If the Buyer shall fail to make any payments in accordance with the
terms and provisions hereof, the Seller, in addition to its other rights and
remedies, but not in limitation thereof, may, at its option, defer its
shipments or deliveries hereunder, or under any other contract with the Buyer,
except upon receipt of satisfactory security or of cash before shipment.
6. SHIPMENT; RISK OF LOSS; TITLE: The goods shall be shipped FOB Seller's
shipping points. Risks of loss pass to Buyer upon delivery to the carrier.
Title shall pass to Buyer on delivery to the carrier.
7. DELIVERIES: The date of delivery provided herein is an approximation
based on Seller's best judgment and prompt receipt from the Buyer of all
necessary data regarding the goods. Unless otherwise expressly stated, Seller
shall have the right to deliver all of the goods at one time or in portions
from time to time within the time of delivery herein provided. The delivery of
non-conforming goods, or a default of any nature, in relation to one or more
installments of this contract shall not substantially impair the value of this
contract as a whole and shall not constitute a total breach of the contract
as a whole.
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8. DELAYS IN DELIVERIES: Seller shall be excused for delay in delivery,
may suspend performance and shall under no circumstances be responsible for
failure to fill any order or orders when due to: acts of God or of the
public enemy; fires; floods; riots; strikes; freight embargoes or
transportation delays; shortage of labor; inability to secure fuel, material
supplies, or power at current prices or on account of shortages thereof; any
existing or future laws or acts of the Federal or of any State Government
(including specifically but not exclusively any orders, rules or regulations
issued by any official or agency of any such government) affecting the
conduct of Seller's business; any clause beyond Seller's reasonable control.
9. OVERSHIPMENT: On orders for special shapes (non stocked items), Seller
may ship quantities produced to cover possible losses in manufacturing and
invoice the same up to an amount representing 10% of the initial order
quantity.
10. WARRANTY: Seller warrants that the goods manufactured by the Seller when
shipped are free from defects in materials and workmanship; provided, however,
Seller shall have no obligation or liability under this warranty unless it
shall have received prompt written notice specifying such defect no later than
one (1) year from the date of shipment. In the event of defects developing
within that period under normal and proper use, Buyer agrees that its sole
and exclusive remedy shall require only that the Seller, at its option,
repair, modify or replace the non-conforming goods FOB Seller's plant or
accept the return of the non-conforming goods and refund the purchase price
or part thereof, giving effect to the use or value received by Buyer. No goods
shall be returned to Seller without Seller's prior written consent. This
warranty is in lieu of all other warranties, express, implied or statutory,
written or oral, and DOES NOT INCLUDE ANY WARRANTY OF MERCHANTABILITY OR OF
FITNESS FOR A PARTICULAR PURPOSE.
11. LAWS, CODES, REGULATION, SAFETY DEVICES: Compliance with laws, codes and
regulations relating to the goods and their use is the sole responsibility of
Buyer, and Seller makes no warranty or representation with respect thereto.
Buyer assumes the responsibility for providing and installing any and all
devices for the protection of safety and health and shall indemnify and hold
harmless Seller against any expense, loss or damage which Seller may incur or
sustain as a result of Buyer's failure to so do.
12. PATENTS: Seller warrants that the use or sale of the goods delivered
hereunder will not infringe the claims of any United States patent covering the
goods, but does not warrant infringement by reason of the use thereof in
combination with other material or equipment in the operation of any process.
Seller shall, at its own expense, assume the defense of any claim, suit or
other proceedings brought against Buyer upon a claim that the goods furnished
under this contract constitutes an infringement of any patent of the United
States. Buyer agrees to cooperate in the defense of any such proceedings and
to provide information, assistance and authority necessary therefor. Should
the goods in such suit be held to constitute infringement and the use of the
goods enjoined, the Seller shall, at its own expense and at its option,
procure for the Buyer the right to continue using such goods or replace them
with substantially equivalent goods or modify them so they become non-
infringing. Buyer shall defend, hold harmless and indemnify Seller against
all judgments, decrees, costs and expenses arising out of any action against
Seller or its suppliers based on a claim that the manufacture or sale of
goods hereunder constitutes infringement of any United States letters patent,
if such goods were manufactured pursuant to Buyer's proprietary designs,
specifications and/or formulae and were not normally offered for sale by
seller; provided, however, Seller shall give prompt written notice of the
claim or action and Seller shall give Buyer authority, information and
assistance at Buyer's expense.
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13. LIABILITY: In no event shall Seller's obligation and liability under
this contract extend to direct, indirect, punitive, special, incidental or
consequential damages or losses Buyer may suffer or incur in connection
therewith, such as but not limited to loss of revenue or profits, damages or
losses as a result of Buyer's inability to operate, or shut down of, its
plant or operations, loss of use of the goods or associated goods or cost of
substitute goods, facilities or services, inability to fulfill contracts with
third parties, injury to good will, claims of customers and the like, nor
shall it extend to damages or losses Buyer may suffer or incur as a result of
claims, suits or other proceedings made or instituted against Buyer by third
parties, whether public or private in nature.
14. BUYER'S DEFAULT; TERMINATION: Buyer shall be liable to seller for all
damages or losses, including loss of reasonable profits, and for costs and
expenses, including attorney's fees, sustained by Seller and arising from
Buyer's default under, or breach of, any of the terms and conditions of this
contract. In the event of any such default or breach, Seller may, without
any obligation or liability to Buyer, terminate this contract forthwith by
written notice to Buyer and such action by seller shall not be deemed a waiver
of any right or remedy with respect to such default or breach.
15. ASSIGNMENT: No right or interest in this contract shall be assigned by
Buyer without prior written agreement by the Seller. No delegation of any
obligation owed or the performance of any obligation by the Buyer shall be
made without prior written agreement by the Seller.
16. LAW GOVERNING: The interpretation and performance of this contract shall
be in accordance with and shall be controller by the laws of the State of
New York. Buyer consents to the jurisdiction of he courts of the State of
New York with venue in Niagra County.
17. MODIFICATIONS; WAIVER: No waiver, alteration or modification of any of
the provisions hereof shall be binding on the Seller unless made in writing
and agreed to by a duly authorized official of the Seller. No waiver by the
Seller of any one or more defaults by the Buyer in the performance of any
provisions of this contract shall operate or be construed as a waiver of any
future default or defaults, whether or a like or of a different character.
