Exhibit 10.6
MASTER TRANSITION MATERIALS AND SERVICES AGREEMENT
This Agreement is made as of December 1, 1999, by and
among ACX Technologies, Inc. ("ACX"), and its Affiliates, and
CoorsTek, Inc., ("CoorsTek"), and its Affiliates, hereinafter
collectively referred to as the "Parties."
1. Purpose. The purpose of this Agreement is to set forth
the terms and conditions pursuant to which ACX shall provide
materials and perform services for each other as described in
Attachment A, attached hereto and by this reference made a part
hereof.
2. Term. This Agreement shall be effective commencing on
January 1, 2000, and shall remain in effect for one (1) year
thereafter.
3. Independent Contractor. The parties expressly
understand and agree that ACX and CoorsTek, respectively are
acting as independents contractors unrelated to each other or any
of their respective subsidiaries or affiliated companies.
Nothing in this Agreement is intended to create a relationship,
express or implied, of employer-employee, principal-agent, or
joint venture between CoorsTek and ACX.
4. Consideration/Billing.
(a) Invoices for services will be sent to the
addresses designated on Attachment B. Best efforts will be made
to xxxx in a timely manner. The year-end invoice shall be sent
within 60 days after the close of the accounting year books with
an additional 30 days to be set aside for any dispute resolution
regarding billing.
(b) Remittance for services will be in the form of a
check and mailed to the party providing the service (the
"Provider") at the address set forth in Attachment B:
(c) Backup documentation for charges less than $50.00
may not be available.
(d) Additional requested services not listed in the
"Description of Service Provided" (Attachment A) will be charged
to the party receiving the material or service ("Receiving
Party").
5. Limitation of Liability. In no event shall either party
be responsible for incidental or consequential damages, including
lost profits, incurred by the other party in connection with this
Agreement, regardless of legal theory (including, without
limitation, contract, negligence, strict liability, tort or
warranty of any kind), even if advised of the possibility of such
damage.
In the event of a loss or claim resulting from work
performed pursuant to this Agreement, the Receiving Party shall
be responsible for responding to the loss or claim on behalf of
both parties to this Agreement until such time as legal liability
is established, at which time each party shall pay its pro rata
share of costs, expenses and judgments.
The Provider shall have the right to participate in the
response to the loss or claim and shall have the right to approve
any settlement provided, however, that such approval shall not be
unreasonably withheld.
6. Warranty. Each Party represents and warrants to the
other party that all materials provided and services performed by
each party hereunder will meet the other party's specifications
as set forth in Attachment A. THE PARTIES AGREE THAT THE
WARRANTY SET FORTH IN THIS PARAGRAPH 6 IS THE SOLE AND EXCLUSIVE
WARRANTY PROVIDED AND THAT THERE IS NO OTHER WARRANTY OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. ALL SUCH OTHER WARRANTIES ARE EXPRESSLY AND
SPECIFICALLY DISCLAIMED. IT IS EXPRESSLY UNDERSTOOD AND AGREED
THAT NEITHER PARTY ACCEPTS RESPONSIBILITY OR LIABILITY FOR THE
USE OF THE SERVICES PERFORMED OR MATERIALS PROVIDED HEREUNDER.
7. Designated Representative. The Designated
Representatives as set forth in Attachment A are responsible for
authorizing and coordinating the work under this Agreement. All
matters of a technical coordinating or project authorization
nature shall be directed to the Designated Representative. All
matters of an administrative or contractual nature, including but
not limited to the issuance of notices, amendments, time
extensions, request for changes, submission of Insurance
Certificates and any other contractual correspondence, including
exchange of signed copies of this Agreement, shall be directed to
the designated Purchasing Representative.
8. Miscellaneous.
(a) Amendment. This Agreement may not be amended
except in writing properly executed by the parties hereto.
(b) Assignment and Subcontracting. Neither party
shall have the right or power to assign or subcontract its rights
or obligations hereunder without the express written consent of
the other party. Any attempt to do so without such consent shall
be null and void and shall give the other party the right to
cancel and terminate this Agreement.
(c) Waiver. Any express waiver of a term of this
Agreement shall not be binding and effective unless made in
writing and properly executed.
(d) Severability. Any invalid or unenforceable
provision shall be deemed severed from this Agreement to the
extent of its invalidity or unenforceability, and this Agreement
shall be construed and enforced as if the Agreement did not
contain that particular provision to the extent of its invalidity
or unenforceability.
(e) Governing Law. The laws of the State of Colorado
shall govern any interpretations or constructions of this
Agreement. Any action pertaining to this Agreement shall be
commenced and prosecuted in the courts of Jefferson County,
Colorado, and each party submits to the jurisdiction of said
courts and waives the right to change venue.
(f) Entire Agreement. There are no understandings
between the parties hereto as to the subject matter of this
Agreement other than as set forth herein and in the documents
specifically incorporated herein.
BY SIGNING BELOW, both parties hereto accept this Agreement.
ACX TECHNOLOGIES, INC. COORSTEK, INC.
By: /s/ Xxxx X. X. Xxxxxx By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------- ---------------------------
Name: Xxxx X. X. Xxxxxx Name: Xxxx X. X. Xxxxxx
Title: General Counsel and Title: General Counsel and
Secretary Secretary
ATTACHMENT A
Transitional Services:
Liability/Property Insurance
Telecommunication Services
Courier and Transportation Services
