SKID STEER LOADE O.E.M. SUPPLY AGREEMENT
KUBOTA EUROPE S.A.S. (hereinafter called KE) and XXXXXX EQUIPMENT 2004 INC.
(hereinafter called XXXXXX) has agreed to enter into a SKID STEER LOADER O.E.M.
SUPPLY AGREEMENT as follows;
Article 1 Objective
1) XXXXXX shall supply KE the products which will be defined in the next
article, according to this Agreement and in a continuous way. KE shall buy
such products from XXXXXX and shall sell them either directly to customers
or through third parties, such as distributors and dealers, and shall
assure the after sales service.
2) KE and XXXXXX shall be free to commercialize the products defined in the
next article except for the agreements concerning sales agreed in this
agreement.
3) If not defined in this agreement, any other agreement which is
contradictory to this agreement shall become null and invalid.
Article 2 Products
1) The products concerned by this agreement are all the skid steer loaders,
either ride-on or stand on, its accessories, options(hereinafter called
globally Products) and its spare parts, in production and to be produced
during the term of this contract by XXXXXX,
2) The specification of the Products shall be discussed and approved by KE
and shall bear the brand name, model name and colour designated by KE.
3) XXXXXX shall not sell the Products with the designated brand name, model
name and colour to any other third party and shall follow the request of
KE concerning the brand name, model name and colour requested by KE for
the products designated by KE.
4) XXXXXX shall not sell under OEM agreements the Products to any other party
during the term of this agreement in the Territory as defined in Article
3. The OEM customers already existing are not subject to this restriction.
A list of such OEM customers already existing is *footnoted.
* Imer France
Article 3 Sales territory
The sales territory (hereinafter the Territory) of KE for the Products is
limited to Europe. Europe is Great Britain, all the European continent, and
foreign territory of France. (D.O.M. T.O.M.) and Spain(Ceuta and Mellila).
Article 4 Sales collaboration
1) KE and XXXXXX shall collaborate to sell the Products, within the objective
of this agreement. Details of such collaboration shall be discussed and
agreed between KE and XXXXXX separately.
2) XXXXXX shall provide KE at its request, the sales data, and technical data
in a timely manner and provide technical training as defined in Article
12.
3) KE is allowed to provide the above to third parties such as distributors,
having as objective to promote the Products. XXXXXX shall cooperate in
this activity.
4) As for the cost sharing of item 2 of this Article, KE and XXXXXX shall
discuss and agree separately.
Article 5 Sales Price
1) [The basic sales price of the products from Xxxxxx to Kubota Europe shall
be negotiated and fixed for a 12-month period. In the event that there is
a change in the cost of raw material and or key components because of
market surcharges, the fixed sales price can be re-opened and
appropriately renegotiated.]
2) The agreed basic sales price shall be subject to currency fluctuation
adjustment between Canadian dollars and Euros. The method of adjustment
shall be discussed and agreed separately.
Article 6 Sales contract
1) This agreement constitutes the base of all the individual sales contracts
to be entered into by the parties. The individual sales contract shall be
done by ordering of KE to XXXXXX and the acceptance of XXXXXX of such
order.
2) The model, specification, quantity, delivery time, delivery place and
conditions shall be defined in each individual sales contract.
3) Any other details regarding the individual sales shall be discussed and
agreed amicably between the parties.
Article 7 Delivery and inspection
1) Delivery shall be done in accordance with the context of each individual
sales contract.
2) The inspection of KE of the Products shall be done when the Products
arrive to the designated delivery place.
3) If any discrepancy and/or damage are found by the above mentioned
inspection, KE shall inform XXXXXX without delay of such and XXXXXX shall
remedy such discrepancy and/or damage at its own cost and responsibility.
Article 8 Risk and title
1) The risk and title of the Products shall pass from XXXXXX to KE when the
Products are delivered (Ex-factory XXXXXX).
2) XXXXXX shall, however, arrange on behalf of KE the arrangements of
transport and insurance until the first destination requested by KE. KE
shall pay XXXXXX the actual amount incurred on transport and insurance.
Article 9 Warranty
1) XXXXXX shall inspect all the Products before delivery to KE and shall
guarantee that the Products delivered are free of any defects and is in
accordance with the order placed by KE in specification, quality and
conformity with the existing safety standards of the Products in the
Territory. Upon request, KE or a third party designated by KE can be
present at this inspection. This presence does not constitute a waiver to
XXXXXX' responsibility mentioned above.
2) Notwithstanding the inspection done by KE at the moment of delivery, if
any other failure is found later on, such failure shall be remedied either
by KE or a third party and such repair shall be compensated by XXXXXX to
KE in accordance with the warranty agreement separately agreed.
3) As for serious failures found after the warranty period is over, both
parties shall discuss and find a solution to such failure in the same
manner as stated above.
Article 10 Modifications
1) In case XXXXXX finds a serious design and/or production failure on the
Products, XXXXXX shall inform the machines which are subject to
modification, inform the details of modification, define the cost of
modification and request KE and/or its distributors/dealers to do the
modification in order to prevent damage to KE, its distributors/dealers
and clients. KE shall cooperate with XXXXXX to effectuate such
modifications.
2) In case KE finds a design/production defect which could harm the life,
health, and/or property of a third party, KE and XXXXXX shall discuss the
counter measures to be taken. If XXXXXX judges reasonably that such
counter measures shall be taken, XXXXXX shall bear the cost arising out of
such counter-measures.
Article 11 Product Liability
1) XXXXXX shall be liable for any prejudice to life, health and property of a
third party (including KE) due to the conception, design and production of
the Product within the limit of the law. XXXXXX shall bear all cost
arising out of such problem, including lawyers' fees and/or compensate KE
for any and all cost arising out of such problem. However, prejudice due
to modification of the Product without prior consent of XXXXXX shall not
be XXXXXX' responsibility.
2) In the event, a product liability dispute arises at KE or its
distributors, KE shall inform XXXXXX immediately of such. KE and XXXXXX
shall discuss the solution of such dispute and XXXXXX shall solve such
dispute by its own cost and responsibility. However, XXXXXX can ask KE its
cooperation to solve such dispute. KE shall cooperate as brand name holder
of the Product.
3) In case the reason of the product liability problem is not clearly
identified, both parties will cooperate and the cost incurred shall be
discussed and shared between the parties.
Article 12 After sales service
1) The after sales service of the Products commercialized by KE shall be done
by KE and its distributors and dealers in principle. However, XXXXXX shall
cooperate with KE in the after sales service upon request by KE and/or its
distributors/dealers.
2) The cost sharing and other details in case of XXXXXX' cooperation shall be
discussed and agreed between KE and XXXXXX.
Article 13 Spare parts
1) The condition of spare parts supply shall be discussed and agreed
separately, having always as base this agreement.
2) XXXXXX shall assure that the spare parts of a product supplied under this
contract shall be available minimum 10 years after the production of such
product is finished.
Article 14 Payment
1) Unless otherwise agreed, the payment from KE to XXXXXX shall be done
within 90 days after the invoicing date in the currency of invoice.(which
unless agreed otherwise shallbe the Canadian Dollar as provided under
article 5)
2) Both parties shall discuss in case payment term needs to be changed due to
any economical or any other reason
Article 15 Change of specification
1) When XXXXXX decides to change its main specification, XXXXXX shall inform
KE and both parties shall discuss about its application.
2) When KE wishes to change any specification, KE shall inform XXXXXX and
both parties shall discuss about its application.
Article 16 Industrial property right
If and when the Product is deemed to infringe a third party's industrial
property right, XXXXXX shall resolve such problem at its own responsibility and
cost. If the dispute concerns the brand name, model name and colour designated
by KE, KE shall resolve such problem at its own responsibility and cost.
Article 17 Notice
Both parties shall inform the other party immediately of any change in company
name, status, and any important change in business environment of the company.
Such notices shall be given by registered mail, fax or any equivalent and
appropriate means of communication.
Article 18 Confidentiality
1) Both parties agree that without the consent of the other party, it shall
not disclose to a third party the context of this agreement or any other
confidential information of the other party obtained in connection with
this agreement. Any public information, information obtained from a third
party is not subject to this confidentiality agreement.
2) In case either of the party discloses confidential information with the
consent of the other party, such party shall ensure that a confidentiality
agreement shall be made with the third party concerned.
Article 19 Non assignable
Unless a written consent of the other party, this agreement, related contract to
this agreement, individual sales contract, any rights and obligations, either
part of or the hole, are non assignable to any third party.
Article 20 Termination
During the term of this Agreement, both KE and XXXXXX may terminate this
Agreement immediately upon serving written notice to the other party, without
the need for any further legal action, in the following instances:
1) One of the parties fails to perform any of its obligations contained in
this Agreement or in
an accepted individual sales contract, and does not correct such failure
within thirty (30) days maximum after written notice by the other party
demanding that the same be remedied and advising him that failure to do so
shall result in the automatic termination of this Agreement.
2) If there is any change in the control of one of the parties which is not
acceptable to the other party.
3) If (i) proceedings in insolvency or bankruptcy are instituted by or
against one of the parties, or (ii) a receiver is appointed, for all or a
substantial part of its assets or (iii) in case of suspension of its
activities, voluntary or involuntary winding-up, or the like. Where a
receiver has been appointed in France, the contract shall be automatically
terminated once the receiver has, in accordance with Article L621-28 of
the French 'Nouveau Code de Commerce', expressly or tacitly renounced the
continuation of this Agreement.
Article 21 Term of agreement
1) This agreement is valid from the 1st of October, 2004 and shall continue
in full force until 31st of December, 2007.
2) Unless a termination notice is given in written 6 months prior to the term
of this agreement, this agreement will be renewed automatically during
another 2 years from the date of expiration and thereafter from the date
of expiration of the extended term.
3) The individual sales contracts already signed at the moment of notice of
termination shall be valid in accordance with this agreement.
Article 22 Governing law
This agreement shall be governed by the French law. In case of dispute, both
parties shall try to solve the problem(s) amicably with good will. If
notwithstanding this attempt, the parties fail to solve the problem, the parties
agree that all disputes arising of or in connection with the present agreement
shall be finally settled under the Rules of Arbitration of the International
Chamber of Commerce by one or more arbitrators appointed in accordance with the
said Rules. Arbitration shall take place in Paris.(France)
In witness whereof, the Parties have signed this Agreement
Date:
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KUBOTA EUROPE S.A.S. XXXXXX EQUIPMENT (2004) INC.
