REQUIREMENTS AGREEMENT
THIS REQUIREMENTS AGREEMENT ("Agreement"), made this 12th day of January,
1994, by and between SUN HILL INDUSTRIES, INC., a Connecticut corporation, with
offices at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Sun Hill"), and
, a corporation, with offices at .
WITNESSETH:
WHEREAS, manufactures and se1ls the products described
in Exhibit A attached hereto and made a part hereof ("Products"); and
WHEREAS, Sun Hill has special expertise in marketing and selling said
Products to the retail sales trade and mail order industries ("Market"); and
WHEREAS, and Sun Hill desire to enter into an agreement for
Sun Hill to sell and market Products.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Sale of Products; Term; Exclusive Dealing. shall sell
to Sun Hill and Sun Hill shall purchase from the Products for
sale by Sun Hill in the Market for the period from
through ("Term"); provided, however, the Term shall be
automatically renewed for successive twelve (12) month period if, during the
prior period, Sun Hill shall have purchased Products from as
follows: totalling Dollars for the initial Term ("Base Amount"), and
totalling the Base Amount plus an additional ( %) of the
Base Amount for each successive renewal year of the Term, calculated on a
basis ("Adjusted Base Amount"). For example, if the Base
Amount of is met in the initial Term, the Adjusted Base
Amount for the first renewal year will be
( , plus % of or and if
the Adjusted Base Amount of is met in the first renewal year, the
Adjusted Base Amount for the second renewal year will be
( , plus % of or . This
Agreement shall automatically terminate as of the end of the initial Term or the
end of any renewal year of the Term if the Base Amount or Adjusted Base Amount
of purchased Products has not been met. agrees that it will
not make any other sale of the Products to or for the Market during the Term, if
and as renewed. shall sell the Products to the Market only
through Sun Hill, and Sun Hill shall buy its requirements of the Products for
the Market only from during the Term, if and as renewed.
2. Price, Delivery, Title and Risk. Sun Hill shall pay
the prices for the Products as set forth on Exhibit A. Such prices may be
revised at any time and from time to time
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by written notice from to Sun Hill setting forth a date not
less than thirty (30) days from the date of such notice when such revisions
shall take effect. Sun Hill shall pay the prices for all
Products purchased within sixty (60) days of the shipment of each order. Each
shipment by shall include an invoice properly detailed,
itemized and prepared at the prices then in effect. Risk of loss and title to
the Products shall pass to Sun Hill upon delivery F.O.B.
plant. The delivery of the Products herein specified may be delayed or cancelled
by , without liability to Sun Hill, by reason of Acts of God,
strikes or other labor disturbances, fires, accidents, delays of carriers,
shortage of supplies or labor or from other cause beyond
control.
3. Representations and Warranties.
represents and warrants:
a. that the sale or use of its Products does not infringe any patent;
b. that it will comply with all laws and regulations governing the
manufacture and sale of the Products;
c. MAKES NO WARRANTY EXTENDING BEYOND THE DESCRIPTION OF
THE PRODUCTS SOLD AND OFFERED FOR SALE PURSUANT TO PARAGRAPH 1. THERE ARE NO
OTHER WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, AS TO MERCHANTABILITY,
FITNESS FOR ANY PARTICULAR
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PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCTS.
SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES. SOLE LIABILITY SHALL BE THE REPLACEMENT OF
NON-CONFORMING PRODUCTS; AND, IF THIS REMEDY SHALL BE ADJUDGED TO HAVE FAILED OF
ITS ESSENTIAL PURPOSE, TOTAL LIABILITY FOR DAMAGES SHALL IN
NO EVENT EXCEED THE PURCHASE PRICE OF THE PARTICULAR SHIPMENT WITH RESPECT TO
WHICH SUCH DAMAGES ARE CLAIMED; provided, however, it shall be the
responsibility of to defend any products liability action
which may be commenced against or name Sun Hill as a party for defects in the
Products and does hereby agree to hold said Sun Hill free and
harmless from any liability resulting from such claims, including but not
limited to legal fees and costs, to the extent of and limited to the extent of
products liability insurance as described in subparagraph d. hereafter;
d. that it has obtained "all risk" liability insurance for the Products in
the base amount of Dollars ($ ), plus excess
or umbrella coverage of Dollars ( );
e. that it will refer all sales to and inquiries from the Market to Sun
Hill;
f. that it will deliver the Products in a timely fashion and in the event
delivery is not made by the date required by Sun Hill as a final date,
shall take back all such delinquent goods, reimburse Sun Hill
all delivery charges incurred
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by Sun Hill and pay Sun Hill an amount equal to Sun Hill's lost profits for said
delinquent delivery, "lost profits" to be limited to the difference between Sun
Hill's verified net invoice price to its customer and net
invoice price To Sun Hill for the delinquent goods;
g. that it has full power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and thereby. This Agreement
constitutes valid, legal and binding obligations of in
accordance with their respective terms. The execution of this Agreement and the
consummation of such transactions will not result in any breach of any terms,
conditions or provisions of or constitute a default under or conflict with any
agreement or other instrument to which is a party or by which
may be bound.
4. Sun Hill's Representations and Warranties:
Sun Hill represents and warrants:
a. that it will use its best efforts in marketing and selling the Products
in the Market;
b. that it will market and sell the Products only for the purpose for which
they were intended to be used at the time of manufacture;
c. that it will comply with all laws and regulations governing the sale of
the Products;
d. that it has full power and authority to enter into this Agreement and to
consummate the transactions contemplated
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hereby and thereby. This Agreement constitutes valid, legal and binding
obligations of Sun Hill in accordance with their respective terms. The execution
of this Agreement and the consummation of such transactions will not result in
any breach of any terms, conditions or provisions of or constitute a default
under or conflict with any agreement or other instrument to which Sun Hill is a
party or by which Sun Hill may be bound.
5. Packaging. Products will be packaged at expense
substantially as they are in Exhibit A. If Sun Hill wishes to change the artwork
or printing on the packaging furnished by , Sun Hill shall pay
only for such artwork or printing and agrees that it will use
such packaging at no other cost to Sun Hill. If Sun Hill furnishes packaging, at
its expense, different than that set forth in Exhibit A, the price for each of
the Products shall be reduced by such sum as the parties shall mutually agree,
and agrees to package the Products in such packaging at no
further cost to Sun Hill.
6. Confidentiality. Sun Hill and agree not to use and to
maintain in strict confidence any proprietary or financial information,
including, but not limited to, customer lists, product costing and method of
manufacture, provided by either party to this Agreement to the other, or other
information subsequently developed jointly by Sun Hill and
for any other purpose except as intended by this Agreement. Sun Hill and
agree that they will not disclose any such
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confidential or proprietary information or use any such information for a period
of from the date of expiration or termination of this
Agreement.
7. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or a breach thereof, shall be settled by arbitration in
, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, and judgment upon the award rendered by the
arbitrator may be enforced in any court having jurisdiction thereof.
8. Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns;
provided, however, neither party shall assign this Agreement or any rights or
obligations hereunder without the express prior written consent of the other.
9. Amendments. This Agreement may not be modified, supplemented or amended
in any respect except by a subsequent written agreement executed by both parties
hereto.
10. Notices. Any notice required hereunder shall be effective when hand
delivered or sent prepaid by certified mail, return receipt requested, to the
parties at the addresses set forth above or to such other address as may be
designated from time to time by written notice by either party to the other as
provided herein.
11.Governing Law. This Agreement has been delivered in
and shall be governed by, and
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construed in accordance with, the laws of the Commonwealth of Pennsylvania.
12. Headings. The headings preceding the text or the paragraphs and
subparagraphs hereof are inserted solely for convenience of reference and shall
not constitute a part of this Agreement nor shall they affect its meaning or
effect.
13. Severability. If any provision of this Agreement is declared
unenforceable by any judicial or administrative authority, the remaining
provisions of this Agreement will not be nullified but will remain in full force
and effect.
14. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties hereto and supersedes all prior agreements and
understandings of the parties pertaining to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized officers,
have caused this Agreement to be executed as of the day and year first above
written.
ATTEST: SUN HILL INDUSTRIES, INC.
[ILLEGIBLE] By: /s/ Xxxxxx Xxxxxxx, President
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Xxxxxx Xxxxxxx, President
ATTEST:
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APPENDIX - A SUNHILL AGREEMENT
*Pricing excludes electrical plug
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ATTEST: SUN HILL INDUSTRIES, INC.
[ILLEGIBLE] By: /s/ Xxxxxx Xxxxxxx, President
---------------------------- -----------------------------
Xxxxxx Xxxxxxx, President
ATTEST:
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