EXHIBIT C
AGREEMENT
THIS AGREEMENT IS ENTERED into this 1st day of July, 1998 by and between
CRA Z Products, Inc., with principal offices at 0000 X Xxxxxxx Xxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "CRA Z"), and
STARCO Chemical, Inc., with principal offices at Union Ave and XxXxxx Street,
East Rutherford, New Jersey 07073 (hereinafter referred to as "STARCO" or the
"Manufacturer").
RECITALS
WHEREAS, CRA Z Products Inc. is a corporation organized under the laws of the
State of Delaware with its principal offices in Sarasota, Florida; and
WHEREAS, CRA Z through its Board of Directors is desirous of entering into an
agreement with STARCO Chemical Inc. for the manufacture of certain products
of which CRA Z is the proprietary of the formulae required to produce such
products; and
WHEREAS, STARCO is a corporation domiciled in the State of New Jersey with
principal offices in East Rutherford, New Jersey; and
WHEREAS, STARCO through its Board of Directors is desirous of entering into
an agreement with CRA Z Products, Inc. for the manufacture of certain
products bearing the trade name CRA Z; and
WHEREAS, STARCO agrees that the formula for such products are proprietary to
CRA Z Products, Inc., and as such STARCO agrees that it will not duplicate
any such formula provided in any form by CRA Z Products, Inc, and
NOW, THEREFORE, in consideration of the foregoing, the promises, mutual
covenants and agreements of the parties hereinafter contained and other good
and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
MANUFACTURE
STARCO agrees to manufacture certain products on behalf of CRA Z strictly
following the formulary and quality guidelines of CRA Z. STARCO further
agrees that the list of said products as found in Schedule A of this
agreement shall be produced at the lowest cost available to STARCO while
maintaining any such formulary or quality standards as required by CRA Z.
CRA Z shall provide to STARCO sufficient lead-time so as to allow for the
efficient manufacture of any CRA Z product. STARCO agrees that it shall
diligently notify CRA Z of the lead times required for each manufacturing
order received by CRA Z and barring events of force- major or acts of god
shall deliver any such products within the agreed upon time period.
ARTICLE II
QUALITY CONTROL AND INSPECTION
The parties agree that they will mutually determine quality standards and
that all products manufactured under this Agreement shall be subject to
quality inspection by CRA Z. The parties further agree that it is their
intention to be partners in any production and that it is in their mutual
best interest to maintain appropriate quality levels for each product.
CRA Z may reject any production that fails to meet a minimum of 85% pass rate
of any inspection performed by CRA Z Products itself, its agents or by
employees responsible for the testing of quality control in the employ of
STARCO.
STARCO agrees to make any inspection reports for any such products available
to CRA Z upon reasonable notice and at reasonable times and places.
ARTICLE III
TERMS OF PAYMENT AND DELIVERY
The parties agree that payment of manufacturing costs shall be discounted at
TEN PERCENT (10%) of the lowest published price per product as described in
Schedule B of this Agreement. All payments are net THIRTY (30) DAYS of
delivery, provided CRA Z meets STARCO credit requirements. The parties
further agree that minimum requirement for manufacture shall be ONE (1)
pallet.
The parties agree and mutually understand that from time to time it may
become necessary to produce a "short run" for the purpose of sampling and
promotion. The parties agree that the additional cost to the Manufacturer
for any such short run and its packaging shall be passed on to CRA Z Products.
CRA Z shall provide STARCO with a Purchase Order for each manufacturing run.
Said PO shall include name, address and delivery instructions. CRA Z shall
endeavor to provide to STARCO a master Purchase Order with a rolling horizon
so as to insure the economic procurement of raw materials and an efficient
manufacturing schedule. The parties agree that in so much as it is feasible,
based upon CRA Z production requirements and STARCO production abilities and
scheduling, that all Purchase Orders are to be manufactured in Just In Time
fashion and drop- shipped directly to CRA Z customers. It is
mutually agreed between the parties that each will strive to manage inventory
in such fashion consistent with Just in Time scheduling and consistent with
the prompt delivery of product to the customer.
The parties further agree and understand that delivery of the product to CRA
Z customer on time and within the time periods established in any Purchase
Order is critical. CRA Z warrants that it will provide STARCO with
sufficient notice so to insure appropriate lead-time to satisfy this
requirement. STARCO agrees and warrants that it shall be liable to CRA Z for
any shipment which fails to meet its required delivery date for any reason
under the control of the manufacturer, including but not limited to, trucking
scheduling, work stoppage, inventory of raw materials, etc. The parties
agree that CRA Z shall be entitled to damages for any such delay within the
manufacturer's control based upon the damages suffered by the CRA Z imposed
by its customer on account of any delay. The parties agree that in any such
event CRA Z shall at a minimum be entitled to an abatement of any such
invoice for the manufacture of the delayed product.
ARTICLE IV
PROPRIETARY NATURE OF PRODUCTS
The parties agree that the formulae for the products listed in Schedule A to
this Agreement are the sole property of CRA Z. These products are
proprietary to CRA Z regardless of their similarity to any other products
produced by STARCO, therefore, STARCO agrees not duplicate, publish, or
divulge in any manner or form said formulae. STARCO further agrees that it
shall not market, sell, advertise or cause to be marketed, sold, advertised,
or in any other way offer to wholesale or retail any product, whether
manufactured by STARCO, its parent or affiliates, containing said proprietary
formula in any packaging other than packaging approved by CRA Z and bearing
the CRA Z Products, Inc name.
ARTICLE V
TERM OF THIS AGREEMENT
The parties agree that the term of this Agreement shall be for an unlimited
period.
The parties further warrant, covenant and agree that this Agreement shall
automatically renew unless either of the parties defaults in its obligations
to the other. In the event of default, the presumptive aggrieved party may
terminate this agreement in writing pursuant to the paragraph entitled NOTICE
of their intention to terminate no less than NINETY (90) Days prior to the
termination of this Agreement
Either party may terminate this Agreement for default upon written notice as
stated above solely in the event of the following:
a. the filing of bankruptcy by either party as a Debtor
b. the application for appointment of a receiver
c. the making of a general assignment for the benefit of either party's
creditors
d. the insolvency of either party
e. the misrepresentation by either party to the other party for the purpose
of obtaining this Agreement.
f. Failure of either party to perform any of its obligations and
responsibilities under this Agreement, including but not limited to a
failure to make required payments in a timely fashion, failure to meet
production and delivery schedules, etc.
ARTICLE VI
LEGAL INERPRETATION
The parties agree that this Agreement shall be interpreted under the laws of
the State of Delaware. Any provision herein found to be inconsistent or
unenforceable under state, federal or local law shall not effect the
remaining provisions hereof which shall remain in full force and effect.
ARTICLE VII
DEFAULT
The parties covenant and agree that if in the event it is alleged by either
party that other has failed to perform, or there has been a lack of
performance or that there has been a breach by the other, then the party
aggrieved shall notify the other party, in writing by certified mail, return
receipt requested, of the default or breach or lack of performance, and the
other party shall have ten (10) days, after receipt of such written notice,
to cure such default, breach or lack of performance. In the event the party
fails to cure such default, or otherwise as the case may be, the aggrieved
party may, after the expiration of such ten (10) day period of time, submit
any alleged default, breach or lack of performance to arbitration with either
the American Arbitration Association or the National Association of Mediators
to enforce any right with respect to any of the terms ofthis Agreement. No
notice shall be required prior to the commencement of any arbitration
proceeding for any violation of any provision herein except that any notice
required by the American Arbitration Association or National Association of
Mediators for the selection of arbiters shall be served by the presumptively
aggrieved party on the defaulting party.
The parties further covenant and represent to each other that if such
proceedings are commenced, the decision of the arbiter shall be final. If by
reason of the actions of the defaulting party, the presumptive
aggrieved party is successful in any such proceeding, the parties agree
that the defaulting party shall become liable to the aggrieved paraty for
all costs including reasonable attorney's fees in bringing any such
proceeding.
It is understood and agreed that in the event any such proceeding is
commenced and after said commencement thereof and before Judgment is or can
be entered, the defaulting party shall comply with such term or condition of
this Agreement, the proceeding instituted shall be deemed to have resulted in
a favorable Judgment, Order or Decree for the aggrieved party, and the
defaulting party shall be liable for all costs, including reasonable
attorney's fees, of the proceeding. The provisions of this paragraph shall be
in addition to, and without prejudice, to any other rights or remedies to
which the aggrieved party may be entitled.
ARTICLE VII
FULL DISCLOSURE
The parties acknowledge that they are entering this Agreement freely and
voluntarily; that each has full and complete authority to enter into this
Agreement; that they have had full and complete opportunity to ascertain and
weigh, to their complete satisfaction, all of the facts and circumstances
likely to influence their judgment; that they have sought and obtained legal
advice independently of each other to the extent that each has determined to
be appropriate and in the best interest of the corporations they represent;
and that they have obtained to the extent required approval by their
corporate by-laws of the Board of Directors of their respective corporations.
ARTICLE VIII
ENTIRE UNDERSTANDING
The parties have incorporated into this Agreement their entire understanding.
No oral statements or prior writings shall have any force or effect for any
purpose whatsoever if inconsistent with the terms of this Agreement. Neither
party has relied upon any representations; promises, warranties, covenants or
undertakings other than those expressly set forth herein.
ARTICLE IX
MODIFICATION AND WAIVER
Neither this Agreement nor any provisions thereof shall be modified or
amended or be deemed to be modified or amended, except by an Agreement in
writing duly subscripted and acknowledged with the same formality as this
Agreement. Any waiver by either party of any provision of this Agreement, or
of any right or option hereunder shall not be deemed a continuing waiver and
shall not prevent or estop such party from thereafter enforcing such
provision, right or option and the failure of either party to insist
more instances upon the strict performance of any of the terms of this
Agreement by the other party shall not be construed as a waiver or
relinquishment for the future of any such term or provision, but the same
shall continue in full force and effect.
ARTICLE X
HEADINGS AND PRONOUNS
The headings in this Agreement are inserted for convenience only and are not
to be considered in construction of the provisions hereof.
The neuter gender shall be deemed to include the masculine and the feminine
wherever necessary or appropriate the masculine to include the feminine,
the feminine to include the masculine, the singular the plural and the plural
to include the singular.
ARTICLE XI
SEPERABILITY AND INDEPENT COVENANTS
Each of the respective rights and obligations of the parties herein shall be
deemed independent and may be enforced independently irrespective of the
other rights and obligations set forth herein.
ARTICLE XII
NOTICE
Any and all notices, communications, options, objections, elections and other
writings required to be given or given hereunder shall be sent via personal
delivery, reputable overnight delivery service, or certified mail, return
receipt requested, to the other party at the address stated hereinabove, or
at such other address as may be designated by such other party by written
notice pursuant to notice in this paragraph.
ARTICLE XIII
BINDING
This Agreement shall be binding upon, and shall inure to the benefit of the
parties hereto and their respective legal representatives, successors and
assigns
IN WITNESS WHEREOF, the parties have hereunto set their respective hands and
seals the day and year first written above.
For CRA Z Products, Inc.
AFFIX CORPORATE SEAL
/s/ Xxxxxxx Xxxxxx
.
XXXXXXX XXXXXX, PRESIDENT
For STARCO Chemical, Inc.
AFFIX CORPORATE SEAL
/s/ Xxxx Xxxxxxxx
XXXX XXXXXXXX, EXECUTIVE VICE-PRESIDENT
