Contract with FPF
EXHIBIT 10.10
Contract with FPF
THIS
PURCHASE AND SUPPLY AGREEMENT (this “Agreement”) is made
and entered into as of this 13th day of
October, 2008 (the “Effective Date”), by
and between Advanced Fiberglass Technologies, Inc., a Wisconsin corporation
(“Purchaser”)
and Fiberglass Piping & Fitting Company, a Wisconsin corporation (“Supplier”).
RECITALS
WHEREAS,
Supplier is a wholesale distributor of imported fiberglass piping and fitting
products;
WHEREAS,
Purchaser is in the business of manufacturing, marketing, selling, installing
and servicing fiberglass products throughout the United States and serves the
paper, oil, agricultural, ethanol and power industries; and
WHEREAS,
Purchaser desires to purchase from Supplier, and Supplier desires to sell to
Purchaser, fiberglass piping and fitting products upon the terms and subject to
the conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein, and other
valuable and legally sufficient consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Purchase and
Sale. Subject to the terms and conditions of this Agreement,
during the term of this Agreement, Supplier shall sell and deliver to Purchaser,
and Purchaser shall purchase and accept from Supplier, fiberglass piping and
fitting products (the “Products”) in such
quantities as may be requested by Purchaser from time to
time. Purchaser shall issue written purchase orders for all Products
to be purchased hereunder.
2. Term. The
initial term of this Agreement shall be for a period of three (3) years
commencing on the Effective Date. On the second anniversary of the
Effective Date and thereafter on each anniversary of the Effective Date unless
terminated as provided herein, this Agreement will automatically extend for an
additional year such that the remaining term shall then be two (2)
years. In the event either party elects not to extend this Agreement
as provided herein, that party shall deliver written notice thereof to the other
party not less than 180 days prior to the anniversary date on which the term
would otherwise be extended pursuant to this Section. The election of
either party not to extend the term shall not affect the then remaining term of
this Agreement.
3. Purchase
Price. The purchase price payable by Purchaser for the
Products (the “Purchase Price”)
shall be equal to Supplier’s net direct cost for such Products, including
without limitation materials, packaging, third-party storage and handling fees,
sales, use, excise and value added taxes, customs duties and other charges
assessable or levied upon the Products, and freight to Supplier’s Wisconsin
Rapids distribution facility.
4. Delivery; Acceptance;
Passage of Title.
(a) Delivery;
Shipping. All Products purchased hereunder shall be delivered
FOB – Supplier’s Wisconsin Rapids distribution facility or to such other
location(s) as may be agreed in writing between the parties from time to
time. Supplier shall be responsible for packing and loading all
Products onto a common or other carrier designated by
Purchaser. Purchaser shall be responsible for securing, scheduling
and paying for all transportation of Products from Supplier’s Wisconsin Rapids
distribution facility to Purchaser’s designated facility or designated ship to
location. Supplier shall pack or
otherwise prepare the Products for shipment consistent with timely delivery, to
meet carriers' requirements and to safeguard Products against
damage.
(b) Acceptance. All
Products purchased hereunder are subject to inspection and approval by Purchaser
within a reasonable period following delivery. Execution of a
delivery receipt does not constitute acceptance of any
Products. Purchaser shall not be required to purchase and may reject
any Products which are nonconforming, damaged or
defective.
(c) Passage of
Title. Title and risk of loss of the Products shall
automatically pass to Purchaser upon loading onto a common or other carrier
designated by Purchaser. Upon passage of title, Purchaser shall
receive good title to Products, free and clear of all liens and
encumbrances.
5. Payment. Supplier
shall promptly issue invoices for the Products following delivery to
Purchaser. Payment terms for all Products purchased pursuant to this
Agreement shall be net thirty (30) days from receipt of Supplier’s
invoice. All payments to Supplier shall be made in United States
currency or cash equivalent and shall be payable in full without delay, set-off,
reduction or discount. Invoices may be delivered by email or
facsimile transmission. The balance of any invoice not paid when due
shall accrue interest at the rate of 1.5% per month until paid.
6. Taxes and
Fees. Any use, personal property, sales or excise tax, duty,
custom, inspection or testing fee, or any other tax, fee or charge of any nature
whatsoever imposed by any governmental authority, on Products sold or shipped by
Supplier to Purchaser hereunder, or in the possession of Purchaser, shall be
paid by Purchaser in addition to the Purchase Price. In the event
that Supplier pays any such tax, fee or charge, Purchaser shall reimburse
Supplier upon invoice by Supplier.
7. Warranties of Supplier;
Limitations on Liability.
(a) Warranties. Supplier
represents and warrants with respect to each delivery of Product as
follows:
(1) The
Products conform to applicable specifications, are new, and are free from
defects in materials and workmanship; and
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(2) The
Products have been manufactured in compliance with the requirements of industry
standard specifications and comply with all applicable laws.
(b) Limitation of
Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN
THIS SECTION, SUPPLIER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
8. Records. Purchaser
or Purchaser’s representatives, including its independent public accountants,
shall have the right, upon not less than five (5) days prior written notice to
Supplier and during normal business hours, to review and copy, at Purchaser’s
sole expense, all books and records of Supplier related to the net direct costs
of the Products for the purpose of auditing, verifying or otherwise determining
the Purchase Price of the Products (collectively, the “Cost
Records”). The Cost Records for each Product sold to Purchaser
shall be retained by Supplier for the greater of: (i) a period of one (1) year
following the final date of delivery; or (ii) such period as may be required
under applicable federal, state or local law.
9. Insurance. Supplier
shall maintain insurance during the term of this Agreement and for a period one
(1) year thereafter, at its sole cost and expense, as follows:
(a) General
commercial liability insurance with combined bodily injury, property damage,
product liability, and completed operations coverage in the amount
of $1,000,000 per occurrence, $1,000,000 in the aggregate, which names Purchaser
as an additional insured; and
(b)
Such statutory worker’s compensation insurance for Supplier’s employees
as is required by law.
Upon request,
Supplier shall deliver to Purchaser one or more certificates of insurance
evidencing the insurance to be obtained pursuant to this Section and providing
for notification to Purchaser at least thirty (30) days prior to the effective
date of any termination or cancellation of such insurance.
10. Assignment. This
Agreement may not be assigned by either party without the prior written consent
of the other party, which consent shall not be unreasonably withheld or delayed,
and any attempted assignment without such written consent shall be null and void
and without legal effect. This Agreement shall be binding upon and
inure to the benefit of the respective parties hereto and their permitted
successors and assigns. Notwithstanding the foregoing, either party
may assign this Agreement without the consent of the other party to any person,
corporation or other entity with or into which such party may be merged, or to
which all or substantially all of such party’s assets may be sold or otherwise
transferred
11. Waiver. The
delay or failure by either party to exercise or enforce in any one or more
instances, any of the terms or conditions of this agreement shall not constitute
or be deemed a waiver of that party’s right thereafter to enforce the terms and
conditions of this Agreement.
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12. Notices. Any
and all notices required or permitted hereunder shall be in writing and
delivered or sent in person, via facsimile or by registered or certified mail,
return receipt requested and postage prepaid, to the following
addresses:
Supplier: Fiberglass
Piping & Fitting Company
Attn: Xxxxx
Xxxxx
Facsimile:
Company: Advanced
Fiberglass Technologies, Inc.
Attn: General
Counsel
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxx, XX 00000
facsimile: 000-000-0000
Any
notice properly sent as provided above shall be deemed effective and delivered
on the date transmitted via facsimile or deposited in the mail, as the case may
be. Any party to this Agreement may change the facsimile number or
address to which notices should be sent hereunder by giving notice of such
change to the other party in accordance with the provisions of this
Section.
13. Counterparts. This
Agreement may be executed in two counterparts, each of which shall be deemed an
original and both of which together shall be deemed to be one and the same
Agreement.
14. Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Wisconsin, without regard to
its principles of conflicts of law which would require the application of the
laws of another jurisdiction.
15. Entire Agreement;
Amendment. This Agreement represents the entire agreement
between the parties with respect to the subject matter hereof and supersedes and
terminates all prior agreements, whether written or oral, entered into between
the parties with respect to said subject matter. For their
convenience, the parties may from time to time use their standard purchase
orders, sales releases, delivery schedules, acknowledgments, invoices and other
similar preprinted forms. Any terms and conditions contained in such
forms shall have no effect on the rights and obligations of the parties with
respect to the purchase and sale of the Products. This Agreement cannot be
modified or amended except by a written instrument signed by both
parties.
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IN
WITNESS WHEREOF, the parties hereto have, through their duly authorized
representatives, executed this Agreement as of the date first above
written.
| FIBERGLASS PIPING & FITTING COMPANY | ADVANCED FIBERGLASS TECHNOLOGIES, INC. | ||||
| By: |
/s/
Xxxxx X. Xxxxx
|
By: |
/s/
Xxxxxx Xxxxxxxxx
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|
Xxxxx
X. Xxxxx
|
Xxxxxx
Xxxxxxxxx
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|
President
|
Chief
Executive Officer
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