EX-10.22
20
c11964exv10w22.htm
LOGISTICS SERVICES AGREEMENT
Exhibit
10.22
LOGISTICS SERVICES AGREEMENT
THIS AGREEMENT dated the 7th day of September, 2005, by and between TomoTherapy Incorporated,
with general offices at 0000 Xxxxxx Xxx, Xxxxxxx, Xxxxxxxxx, 00000 (hereinafter referred to as the
“Customer”), and XXXXXX + XXXXX INC., d/b/a XXXXXX + XXXXX, a New York corporation, with general
offices at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to as “ Xxxxxx +
Xxxxx”).
Background.
Customer selected XXXXXX + XXXXX to provide logistics services in connection with the storage,
handling and distribution of its products as described in this Agreement, and XXXXXX + XXXXX has
agreed to provide such services.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth below the
parties agree as follows:
| 1. | Scope of Operation. |
| |
| | 1.1 | | Services — Scope of Work. XXXXXX + XXXXX shall receive, store, handle and
ship Customer’s products in accordance with this Agreement (the “Services”). Additional details regarding the Services
to be provided by XXXXXX + XXXXX are set forth in the Scope of Work attached hereto as Exhibit A
and incorporated herein. XXXXXX + XXXXX shall also provide for or manage services related to air
freight, sea freight and non-US transportation and storage of Customer’s product (“International
Services”). Additional terms for the International Services are set forth in the
International Services Exhibit attached as Exhibit D. |
| |
| | 1.2 | | Operational Assumptions. XXXXXX + XXXXX and Customer acknowledge that the
Services are based upon various assumptions, estimates, forecasts and projections of Customer regarding its business, the
Services requested by Customer to support such business, the ability of Customer to integrate the
Services into its business and Customer’s compliance and performance of certain legal and operational
responsibilities. Customer acknowledges and agrees that, in order for XXXXXX + XXXXX to properly
provide the Services hereunder, it is necessary for Customer to provide XXXXXX + XXXXX with timely
and accurate information regarding those aspects of its business which may affect the performance by
XXXXXX + XXXXX of the Services hereunder, including changes in the Customer’s business model,
projected sales volume, delivery schedules, reports required and other matters which could impact the
delivery of Services hereunder. |
| | 1.3 | | Special Requirements. When Customer requires XXXXXX + XXXXX to conform to any special
requirements or procedures with respect to the Services which are not set forth in the Scope of Work
(“Special Requirements”), Customer must provide XXXXXX + XXXXX with reasonably detailed
advance written notice. If Special Requirements will impact the pricing described in Article, 5 then
XXXXXX + XXXXX will advise Customer. Special Requirements and any changes in pricing shall not
be effective until consented to by XXXXXX + XXXXX in writing and, in any event, shall be subject and
subordinate to the terms and conditions of this Agreement. |
| |
| | 1.4 | | Customer Assistance. Either party may require that Customer provide on-site representative(s) during
start-up and afterwards to provide reasonable assistance to XXXXXX + XXXXX in
connection with the Services and/or training to Customer’s specific requirements. |
Confidential treatment has been requested for portions of this
exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [ * ]. A complete
version of this exhibit has been filed separately with the Securities
and Exchange Commission.
2. Term of Agreement. The term of this Agreement shall commence on September 8,
2005 and shall continue until September 7, 2010 and shall automatically renew thereafter on a
month-to-month basis thereafter unless earlier terminated by either party pursuant to Article 15.
Products
3.1 Description of Products. The products to be delivered by Customer and/or its suppliers (the “Products”)
are described in Exhibit B attached hereto and made a part hereof. In addition to the
specific obligations set forth in this Agreement, Customer shall provide XXXXXX + XXXXX with information concerning the Products
which is accurate, complete and sufficient to allow XXXXXX + XXXXX to perform the Services.
3.2 Material Safety Data Sheets; Dangerous Products. XXXXXX + XXXXX must have current, correct and
complete Material Safety Data Sheets and other information concerning the storage, handling
and other characteristics of the Product (“MSD Sheets”) for all Products at all times. Customer shall ensure that it
provides XXXXXX + XXXXX with MSD Sheets as required by this Article. MSD Sheets shall be provided to XXXXXX + NAGEL’s
Manager of Health and Safety and to the local distribution center manager for any additional Products to
be handled in the distribution center. MSD Sheets for new Products must be furnished at least three (3) weeks
before such Products arrive at the distribution center. However, if the handling and hazard characteristics of additional
Products are the same as the Products then handled in the distribution center, then the MSD Sheets may be provided one (1)
week in advance. XXXXXX + XXXXX reserves the right, but not the obligation, to exclude Products from the
distribution center (or require the immediate removal of such Products) if XXXXXX + XXXXX determines in its sole
judgment that it does not have complete and correct information as required by this Article 3. If Customer fails to
remove the Products, XXXXXX + XXXXX will return such Products to Customer in a commercially reasonable manner and Customer
will reimburse XXXXXX + XXXXX for its out-of-pocket expense stemming from the same. Pending such disposition
XXXXXX + XXXXX may remove the Products from the distribution center and shall incur no liability by
reason of such removal.
3.3 Tender of Products: Packaging and Labeling. All Products shall be delivered to the
distribution center properly marked and packaged for handling, storage and transportation in accordance with Legal
Requirements (as defined in Article 3.6). By tendering Products to XXXXXX + XXXXX, Customer represents and
warrants that: (i) there are no known potential health, safety and/or environmental hazards associated with the proper
storage and handling of said Products which have not been disclosed pursuant to Article 3.2 and
(ii) Customer is lawfully possessed of the Products and has the right and authority to store them
with XXXXXX + XXXXX. Customer shall furnish at or prior to such delivery, a manifest showing marks,
brands, or sizes to be kept and accounted for separately, and the class of storage and other
services desired. Upon request, Customer will provide XXXXXX + XXXXX with the approximate weight of
each Product (including packaging, dunnage etc) by SKU number.
3.4 Access to Products. XXXXXX + XXXXX grants to Customer access to Products by duly
authorized personnel upon reasonable request, subject to this Agreement and XXXXXX + NAGEL’s health,
safety and security procedures. Customer acknowledges that collective bargaining agreements at certain XXXXXX +
XXXXX facilities may limit XXXXXX + NAGEL’s ability to allow Customer to handle its own Products at the distribution center.
3.5 Disposal of Product. Customer shall retain sole and exclusive authority with respect to the disposal of
any damaged, expired, out-of-date Products or otherwise unsaleable items and shall cause the
removal of such Products from the distribution center in accordance with all applicable Legal Requirements at
Customer’s expense. Customer will be exclusively responsible for contracting with duly qualified and authorized entities for the
transportation and disposal of hazardous materials and arranging such transportation and disposal in each instance. As
necessary, Customer will obtain, in its own name, all required permits for such disposal, including by way of
illustration and not limitation, EPA Identification Numbers and Hazardous Waste Generator permits. Manifests and other relevant
documentation will be executed by an authorized representative of Customer. XXXXXX + NAGEL’s involvement will be to
comply with Customer’s requirements (provided that such requirements are not inconsistent with this
Agreement) and to tender the materials to authorized carriers as Customer’s agent. Customer will comply with this
obligation and cause the removal of Hazardous Materials from the distribution center so as to prevent the requirement that the
distribution center be licensed as a Transfer Storage and Disposal Facility (TSDF) or similar facility under applicable Legal
Requirements.
3.6 Legal Requirements Defined. The term “Legal Requirements” means all present
and future, laws, statutes, ordinances, requirements, orders, directions, rules and regulations of
any kind or nature, whether statutory or common law, including, without limitation, all
environmental laws, issued or enforced by any Governmental Authority,
which governs or applies in any way to the Products. The term “Governmental Authority” means
the Federal, state, county and municipal governments and all other governmental authorities or
quasi-governmental authorities having or claiming jurisdiction, together with the insurance
underwriting board or insurance inspection bureau having or claiming jurisdiction, or any other
body exercising similar functions, and all insurance companies writing policies covering the
Products, the distribution center or any part thereof.
4. Receipts; Shipments and Product Handling.
4.1 Shipments. By providing Services, XXXXXX + XXXXX is acting as a warehouseman
without beneficial title or interest in such property. Therefore, Customer shall ship Products to XXXXXX + XXXXX
in Customer’s name (e.g., Customer c/o KUEHNE + XXXXX) and will not ship Products to XXXXXX + XXXXX as the named
consignee. If Products are shipped to XXXXXX + XXXXX as named consignee, then Customer shall promptly notify
the carrier in writing regarding XXXXXX + NAGEL’s status. Customer shall protect and defend XXXXXX + XXXXX
against all costs or expenses in connection with the improper designation of XXXXXX + XXXXX as the consignee.
These costs and expenses may include, by way of example: claims for unpaid transportation charges, including
undercharges, demurrage, detention. If Customer fails to satisfy its obligations under this Article then, upon notice
to Customer, XXXXXX + XXXXX may refuse such Products and will not be liable or responsible for any resulting loss, injury or damage.
4.2 Capacity. XXXXXX + NAGEL’s ability to promptly load and unload Products depends upon receiving
adequate notice regarding incoming and outgoing volumes. Therefore, Customer will provide
XXXXXX + XXXXX with as much notice as possible regarding anticipated receipt and shipment activity. XXXXXX + XXXXX
will use commercially reasonable efforts to maintain the capability to promptly load and unload
Customer’s shipments of Products. When estimated volumes become higher than can be reasonably handled during the
normal work week, XXXXXX + XXXXX shall advise Customer of the estimated overtime hours required to handle the
incremental volume without delays. XXXXXX + XXXXX will use its best efforts to provide Customer with twenty-four
(24) hours’ advance notification of the need for overtime hours. If Customer approves the overtime hours to avoid
delays, Customer will reimburse XXXXXX + XXXXX accordingly. Modest levels of routine overtime, not in excess of five
(5%) percent of the total hours per week to handle normal operations, shall not require advance notification and
approval of Customer.
4.3 Abnormally Rapid Growth. XXXXXX + XXXXX may incur staffing problems that may
affect XXXXXX + NAGEL’s performance under this Agreement if Customer estimated volumes are not substantially
correct or if the account experiences “abnormally rapid growth”. A twenty percent (20%) increase in orders for
Products over either projected orders for a particular week or the average volume for the prior month shall be
deemed an “abnormally rapid growth” unless Customer has advised XXXXXX + XXXXX in writing of such change at least two (2)
weeks in advance. XXXXXX + NAGEL’s inability to provide timely services as a result of incorrect forecasts or
“abnormally rapid growth” shall not constitute default by XXXXXX + XXXXX under this Agreement, provided that, in any
event, XXXXXX + XXXXX shall use its best efforts to perform the services in accordance with the standards set forth herein.
4.4 Detention. Customer shall advise its suppliers that motor carriers with shipments must obtain an
appointment for delivery at least forty-eight (48) hours prior to arrival at the distribution
center. XXXXXX + XXXXX
shall not be responsible for trailer detention cost or demurrage.
4.5 Concealed Damage. XXXXXX + XXXXX will notify Customer upon becoming aware of Products that
are received in a damaged condition. Damaged Products will be segregated from undamaged
Products and disposed of at
the direction of Customer. Customer will provide materials to recover all Products that it
wishes recovered. Charges for
recouping will be pursuant to XXXXXX + NAGEL’s standard hourly rates.
4.6 Customer Instructions. Customer shall provide XXXXXX + XXXXX with all information, instructions
and authorizations as XXXXXX + XXXXX may require in order to perform the Services hereunder.
All information, instructions and authorizations by Customer to XXXXXX + XXXXX shall comply with all applicable
federal, state and local laws, rules and regulations, and XXXXXX + XXXXX has no responsibility to confirm or
verify the adequacy, accuracy or validity thereof. In performing the Services hereunder, XXXXXX + XXXXX shall act
in accordance with, and shall be entitled to rely upon, all written, oral, facsimile and electronic information,
instructions and authorizations provided by or on behalf of Customer and received by it. In the
absence of any such instructions, XXXXXX + XXXXX shall, at its election, either (i) defer taking
any action pending the receipt of instructions from Customer or (ii) take such action as it deems
reasonably necessary under the circumstances, and, in either such event, XXXXXX + XXXXX shall be
protected from any claim or liability provided XXXXXX + XXXXX shall have acted in good faith and
in a commercially reasonable manner.
4.7 Procedures. Customer may, if required due to the nature of the Products or a
specific Customer requirement, provide XXXXXX + XXXXX with written Receiving, Shipment and/or Storage
procedures (“SOPs”). The parties agree that such procedures and SOPs are designed to implement and supplement the purpose of
this Agreement. Customer recognizes that circumstances and/or sound business judgment will
sometimes require a deviation from established or recommended SOPs. SOPs shall be considered
guidelines regarding certain operational issues in key business areas and shall not provide a basis
for a claim of breach of contract unless such failures are unreasonably repeated and unjustified.
Where there is a conflict between a particular procedure and this Agreement, this Agreement shall
control.
4.8 Licenses: Compliance with Laws. Customer shall be responsible for compliance with
all Legal Requirements which govern or apply in any way to the Products, including, without limitation,
all environmental laws, except to the extent that any violation is attributable to XXXXXX + XXXXX. Customer shall
obtain all licenses and/or permits that are specifically required for the storage, handling and distribution of the
Products at or from the distribution center. The Customer has no obligation, however, to obtain any license or permit that is
generally required for XXXXXX + XXXXX to carry out its business or specifically required for any other customer.
5. Pricing and Payments.
5.1 Pricing. The pricing of XXXXXX + NAGEL’s services under the Scope of Work shall be
as set forth on Exhibit C attached hereto and made a part hereof, as such Exhibit may be amended from
time to time in accordance with the terms of this Agreement. The pricing for the International Services shall be presented to
Customer on an as-needed basis, or a per transportation mode or per project basis. For example, as shipments of Product
need to be directed to a new location outside of the United States, the pricing and terms related to such shipments
shall be presented to Customer for its review and approval.
5.2 Storage Charges. Storage
charges become applicable upon the date that XXXXXX + XXXXX accepts
care, custody and control of the Products, regardless of unloading date or date of issue of
warehouse receipt. A full month’s storage charge will apply on all Products received between the first and the 15th,
inclusive, of a calendar month; one-half month’s storage charge will apply on all Products received
between the 16th and the last day, inclusive, of a calendar month, and a full month’s storage
charge will apply to all Products in storage on the first day of the next and succeeding calendar
months, and remain in storage until the 15th of that month or later.
5.3 Additional Expenses. Additional expenses incurred by XXXXXX + XXXXX in receiving
and handling damaged Products, and additional expense in unloading from or loading into cars or other
vehicles not at distribution center door will be charged to Customer.
5.4 90-Day Review of Pricing. It is understood that the pricing established by XXXXXX + XXXXX was
developed based on the account characteristics provided by Customer and certain operational
assumptions. Pricing will be reviewed by both XXXXXX + XXXXX and Customer ninety (90) days following commencement of
operations and on at least each anniversary date thereafter. Based on these reviews, the pricing will be
adjusted by mutual agreement of the parties in accordance with the variations in the account characteristics and operational assumptions.
5.5 Invoicing. XXXXXX + XXXXX shall invoice Customer monthly for services provided and Customer
shall, within thirty (30) days from invoice date, remit payment to XXXXXX + XXXXX during the
term of the Agreement. XXXXXX + NAGEL’s invoice shall aggregate all service invoices received to date by XXXXXX +
XXXXX and shall set forth the charges in reasonable detail. An interest charge at the rate of one and one-half
percent (1-1/2%) per month shall be assessed on the entire unpaid balance of an account that is not paid within thirty (30)
days of the invoice date. In the event of litigation or collection activity arising out of Customer’s nonpayment, XXXXXX +
XXXXX will be entitled to reasonable costs and expenses incurred, including attorneys’ fees. Without limiting its other
remedies, XXXXXX + XXXXX also reserves the right to suspend Services upon five (5) business days written notice
to Customer in the event that any of Customer’s accounts with XXXXXX + XXXXX become delinquent.
5.6 Invoice Disputes. In the event Customer contests any XXXXXX + XXXXX invoice, it
will so notify XXXXXX + XXXXX within thirty (30) days from the invoice date. The parties will enter
into good faith discussions to
resolve any disputed charge. However, Customer agrees to pay those portions of the invoice which
are not in dispute within the above guidelines.
5.7 CPI Increase. The pricing set forth on Exhibit C shall increase on
or about January 1st of each year by a percentage equal to the seasonally-adjusted CPI
Increase. The “CPI Increase” is the percentage by which the Consumer Price Index (“CPI”) for
September of the current year exceeds the CPI for September of the prior year. The term “CPI” shall
mean the United States Department of Labor, Bureau of Labor Statistics, Washington, D.C. — Consumer
Price Index for All Urban Customers seasonally adjusted U.S. city average: All items (1982-1984 =
100) as periodically published, or if such CPI shall be discontinued, then any other comparable or
similar index as shall be periodically published by the United States Department of Labor or any
other Department or Division of the United States Government. The CPI Increase will be applied
after considering, and adjusting for, any changes in account characteristics or Services during the
intervening period as well as projected changes in such characteristics and/or Services upon mutual
agreement of the parties.
6. Expenses.
6.1 Start-Up Expenses. Expenses incurred by XXXXXX + XXXXX in preparation of the
start-up date or in connection with the commencement of services shall be considered as “Start-Up Expenses”.
Start-Up Expenses shall include, without limitation: product handling equipment, racking, dedicated staffing
acquisition costs, costs of compliance with Legal Requirements which apply to the Services as they relate to Customer’s
specific products or operations (as opposed to general commodities or generic warehouse operations). Additional
detail regarding Start-Up Expenses is shown in Exhibit C to this Agreement. Customer shall not be obligated to
pay Start-Up Expenses in excess of those specified in Exhibit C unless it has consented to such increase(s) or
additional expenses in writing. Unless otherwise agreed in writing, Start Up Expenses are payable within fifteen (15) days of XXXXXX + NAGEL’s invoice.
6.2 Taxes. Customer shall prepare all required tax returns and pay all property taxes
and charges relating to its Products within the distribution center. Such taxes shall be paid directly by Customer to the taxing authority.
6.3 Costs of Compliance. If XXXXXX + XXXXX incurs additional costs for compliance with Legal
Requirements as a result of the storage, handling or transportation of the Products, as
compared to compliance costs for XXXXXX + XXXXX to carry out its business in general or due to its work for customers, then
Customer will pay such costs upon presentment of XXXXXX + NAGEL’s invoice and supporting documentation.
7. Liability for Loss and Damaged Product.
| | 7.1 | | Standard of Care. Notwithstanding any contrary provision in this
Agreement or in any exhibit, addenda, supplement or procedure issued herewith or subsequent to this Agreement, in no event shall XXXXXX +
XXXXX be liable for loss of, damage to, or delay in delivery of such Products unless such loss, damage
or delay resulted from the failure by XXXXXX + XXXXX to exercise such care in regards to said
Products as a reasonable, careful person would exercise under like circumstances and XXXXXX +
XXXXX shall not be liable for losses which could not have been avoided by the exercise of such care.
In no event shall XXXXXX + XXXXX be liable for loss or damage to Products under this Agreement in
excess of $[ * ] per occurrence and $[ * ] annual aggregate. |
| | 7.2 | | Loss/Damage Terms for Distribution Centers in the United States. Losses as determined between
XXXXXX + NAGEL’s book inventory and the annual physical inventory in excess of the
Shrinkage Allowance shall be limited to: (i) the direct manufacturing cost of the Product
(excluding intercompany charges or profit) if manufactured by Customer; or (ii) the replacement cost of the
Product if purchased from a third party vendor; in either instance less salvage value. Customer agrees to
provide XXXXXX + XXXXX a shrinkage/damage allowance of
[ * ] percent ([ * ]%) of the book value
of Customer’s annual through-put volume (“Shrinkage Allowance”). If Customer’s inventory
system is used in place of XXXXXX + NAGEL’s system, or if XXXXXX + XXXXX otherwise is not given
complete care, custody and control of the Products, XXXXXX + XXXXX shall have no liability for
inventory shortages. The Shrinkage Allowance is subject to review after the reconciliation of
the first annual physical inventory and annually thereafter. XXXXXX + XXXXX shall have no liability for
any loss or damage to the Products prior to receipt thereof by XXXXXX + XXXXX at the distribution
center or following the delivery thereof to the common carrier for shipment to the Customer’s
consignee (or to |
| | | | such other destination as the Customer shall otherwise instruct), nor shall XXXXXX +
XXXXX have any liability for any Product shortage or damage which is not visibly
apparent at the time of receipt at the distribution center. |
| |
| | 7.3 | | Loss/Damage Terms for Distribution Centers outside of the United States. XXXXXX + XXXXX shall
be liable for distribution and last mile delivery services in accordance with local in-country standards for
distribution centers that are located outside of the United States. XXXXXX + XXXXX shall provide
Customer with the applicable in-country terms and conditions upon written request. By way of example
and subject to the provisions of Section 7.1, Products stored and managed for last mile distribution in
Hong Kong shall be subject to the Hong Kong standards for risk of loss for warehouseman. |
| |
| | 7.4 | | Loss/Damage Terms for Air/Sea/Ground/Rail. XXXXXX + XXXXX shall be liable for
transportation/distribution and forwarding services under the terms of the applicable Freight Forwarders’
Standard Terms and Conditions of the respective country where services shall be provided by XXXXXX
+ XXXXX (hereinafter referred to as “STC”). As a rule, the STC of the XXXXXX + XXXXX office
receiving the order from Customer for providing services are to be applied. In case the STC for the
relevant country do not apply for reasons whatsoever, or in case there are no STC in force, the applicable
domestic laws and regulations shall apply. The STC are made available to Customer upon written
request. International transport by air, sea, truck or rail is subject to the liability provisions in the
applicable international conventions such as Warsaw Convention, Hague Visby Rules and domestic laws
and regulations and the conditions of carriage of the respective carriers. |
| |
| | 7.5 | | Claims by Customer. Any claims by Customer must be presented in writing to XXXXXX + XXXXX
within a reasonable time and in no event longer than: (i) sixty (60) days after
delivery of the Products by XXXXXX + XXXXX or (ii) sixty (60) days from the date that the Customer is informed or
becomes aware of the loss or damage, whichever time is shorter. Customer shall provide XXXXXX
+ XXXXX with all information which is reasonably necessary to substantiate the nature of the
claim and alleged damages. A claim by Customer of conversion must be established by affirmative evidence
that XXXXXX + XXXXX converted the Products to XXXXXX + NAGEL’s own use. XXXXXX + NAGEL’s maximum
liability for negligent misshipments shall be as specified in Article 7 and XXXXXX +
XXXXX shall have no liability for damages due to the consignee’s acceptance or use of the Products
whether such Products be those of Customer or another. |
| |
| | 7.6 | | Actions. No action may be maintained by Customer against XXXXXX + XXXXX
for loss or injury to the Products unless a timely written claim has been given as provided in Article 7 and
unless such action is commenced within twelve (12) months after submission of such claim. |
8. Insurance.
8.1 Generally. XXXXXX + XXXXX shall, throughout the term of this Agreement, maintain
the following insurance coverage in commercially reasonable forms. XXXXXX + XXXXX shall, upon Customer’s
written request, furnish Customer with certificates of insurance as evidence of the coverage listed below. Such
certificates shall provide that the insurance carrier shall endeavor to give Customer at least ten (10) days’ prior
written notice before terminating the listed coverage.
| | | | | | | | | |
| Coverage | | Limits |
| (i) | | Worker’s Compensation | | Statutory |
| (ii) | | Employer’s Liability | | $100,000 Each Occurrence |
| (iii) | | Comprehensive General Liability. | | |
|
| | | 1. | | | Bodily
| | $1,000,000 Ea. Person |
|
| | | | | | | | $1,000,000 Ea. Occurrence |
|
| | | 2. | | | Property Damage
| | $1,000,000 Ea. Occurrence |
8.2 Customer to Insure Products. Customer shall provide fire and extended coverage insurance on the
Products stored in the distribution centers.
8.3 Waiver of Subrogation. Notwithstanding any other provision of this
Agreement to the contrary, each party hereby waives any and all right of action or claim against
the other, or against the officers, employees, agents and representatives of the other, for
liability for damage to any of its property located at or in the distribution center caused by or
brought about through fire, lightning or any and all other hazards which are not caused by the
other party and are normally included in and covered by all risk insurance policies (including, but
not limited to, windstorm, hail, explosion, riot, civil commotion, aircraft, vehicles or smoke), or
as a result of roof leakage or sprinkler system or sprinkler leakage.
9. Indemnification.
9.1 By XXXXXX + XXXXX. XXXXXX + XXXXX shall indemnify and hold Customer harmless from
and against any and all liabilities, claims, suits, actions, orders, taxes, fees, assessments,
fines, damages, losses, costs and expenses, including reasonable attorney’s fees (collectively “Claims”) caused by or resulting
from any negligent act or omission or wrongful act of XXXXXX + XXXXX, its employees or agents arising out of XXXXXX +
NAGEL’s performance or default of its obligations hereunder. XXXXXX + XXXXX shall not be liable to the
extent such Claim arises out of or is caused by exposure to the Products or the negligent act or omission of
Customer, its employees or agents or Customer’s breach of its obligations hereunder. Claims, actions, liabilities, losses
and expenses arising out of loss or damage of Products pursuant to this Agreement shall be subject to the limitation of
liability set forth in Article 7 of this Agreement.
9.2 By Customer. Customer shall indemnify and hold XXXXXX + XXXXX harmless from and against any and all Claims caused by or resulting from (i) any negligent act or omission of Customer, its
employees or agents, except to the extent such injury, death or damage is caused by the negligent act or omission of
XXXXXX + XXXXX or its employees or agents or XXXXXX + NAGEL’s breach of its obligations hereunder, (ii) the Products
(including, without limitation, claims based in whole or in part on a theory of so-called “products liability”,
however articulated), (iii) Customer’s breach of its obligations hereunder or (iv) Customer’s violation of any Legal
Requirement, arising out of or resulting from the handling, storage or distribution of any of the Products except to the
extent that such violation is attributable to XXXXXX + NAGEL’s conduct.
9.3 Incidental; Consequential Damages. In no event will either party be liable for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this
Agreement (including loss of profits, use, data or other economic advantage), however it arises, whether for breach of this
Agreement, or in tort, even if that party has been previously advised of the possibility of such damage.
10. Information Systems.
10.1 XXXXXX + NAGEL’s System and Software. To facilitate the performance of the
Services under this Agreement, XXXXXX + XXXXX may provide Customer with information regarding, or limited access
to, XXXXXX + NAGEL’s inventory, order management and other computer systems and capabilities, including,
without limitation, warehouse management and automation systems licensed from third parties as well as computer
programs, formats, screens, protocols, hardware or software that are a part of or are used in connection with any
of the foregoing (collectively “XXXXXX + NAGEL’s System”). Customer acknowledges and agrees that it shall have
no right, title, interest or license of any nature in any part of XXXXXX + NAGEL’s System (including, without
limitation, items developed in whole or in part by XXXXXX + XXXXX). Customer further acknowledges and agrees
that access to or use of features within XXXXXX + NAGEL’s System is on an “as is” basis and that XXXXXX + XXXXX
makes no warranties with respect to the access to or use of features in connection with XXXXXX +
NAGEL’s System. Customer’s limited right to have access to XXXXXX + NAGEL’s System is subject to Customer’s compliance
with XXXXXX + NAGEL’s system access and security requirements and may be terminated upon notice by XXXXXX +
XXXXX.
10.2 Internet Commerce. The parties hereto may decide to establish a procedure for the
transmission of or access to Customer’s Confidential Information (as defined in Article 11.2) and other
information pertaining to Customer’s relationship with XXXXXX + XXXXX, the Products, suppliers, orders, ship
confirmation, inventory reports, (collectively called “Data”) over the network of computers commonly referred to as the
“Internet” and/or via electronic mail (collectively referred to as the “Internet”). Customer
recognizes that XXXXXX + XXXXX does not have the ability to control the transmission of Data over
the Internet. XXXXXX + XXXXX utilizes systems designed to
-7-
enhance
the security of Data transmitted over the Internet to minimize the
risk that the Data is either intercepted or corrupted. Customer
agrees to utilize these systems and acknowledges that no system can
guarantee the security of Data. Customer also understands and accepts
the risk that Data that Customer transmits over the Internet may be
delayed or misdirected causing errors in the performance of the
Services for which XXXXXX + XXXXX is not responsible.
11. Confidentiality.
11.1 Generally. Each party hereto acknowledges that Confidential Information (defined
below) about the business and operation of the other party, its affiliates and/or subsidiaries may be disclosed
in the course of the relationship evidenced by this Agreement. The party receiving such information is referred to
as “Recipient”. The party disclosing such information is referred to as “Disclosing Party”.
11.2 Confidential Information. As used in this Agreement the term “Confidential
Information” shall mean (i) all financial information pertaining to the Disclosing Party or its customers, (ii) the
identities and products of all current and former customers of the Disclosing Party and (iii) all information related to Disclosing
Parry’s operations, business relationships, financial information, trade secrets, processes, formulae, specifications,
programs, software packages, technical know how, methods and procedures of operation, business or marketing plans,
proposals, licensed documentation, products or devices in development and plans for such developments, and all
strategic plans, (iv) all other written and oral information pertaining to the Disclosing Party and identified as confidential
by the Disclosing Party and disclosed by the Disclosing Party to Recipient, and (v) XXXXXX + NAGEL’s System.
11.3
Care of Confidential Information. Subject to the terms of this Agreement, the Recipient, its officers, employees and agents shall use all reasonable efforts to protect such Confidential
Information, and shall not disclose or use any such Confidential Information except for the purpose of conducting business under this
Agreement (as amended from time to time) without the express written permission of the Disclosing Party. Recipient
shall use reasonable efforts to ensure that its officers, employees and agents working with or otherwise having access to
Confidential Information shall not disclose or make unauthorized use thereof. Recipient agrees to keep, maintain and
protect the confidentiality of the Confidential Information with at least the same vigor and effort used to protect any
Confidential Information in its own business. Recipient agrees that such Confidential Information
shall not be disclosed to persons who do not have any direct need to know such Confidential
Information in the performance of their corporate duties.
11.4 Exceptions. Recipient’s obligations to protect Confidential Information shall not
apply to the extent that such Confidential Information which: (i) at the time of disclosure is in the public domain;
(b) after disclosure, becomes part of the public domain by publication or otherwise, through no act of Recipient nor any
agent or employee of Recipient; (c) Recipient can establish by competent proof was in its possession at the time of
disclosure by the Disclosing Party and was not acquired, directly or indirectly, from the Disclosing Party; and (d) is
required by law, regulation, rule, act, or order of any governmental authority or agency to be disclosed, as demonstrated by an
opinion of outside counsel for the receiving party. In addition, XXXXXX + XXXXX is hereby authorized to disclose to any
for-hire carrier, such of the above information as shall be necessary or appropriate in connection with the shipment and
delivery of Product(s) by such carrier pursuant to Customer’s directions.
12. Independent Contractor. XXXXXX + NAGEL’s relationship to Customer shall be that of an
independent contractor. Any provisions in this Agreement which may appear to give Customer the right to direct
XXXXXX + XXXXX as to the details of the performance of any work performed by XXXXXX + XXXXX shall be deemed
to mean, and shall mean, that XXXXXX + XXXXX shall follow the desire of Customer in the results of the work
only and not in the means whereby said work is to be accomplished. XXXXXX + XXXXX shall direct the actions of its
employees, agents and subcontractors (“XXXXXX + NAGEL’s Personnel”) while performing the Services and shall be
solely responsible for their supervision, daily direction and control, payment of salary (including
withholding of income taxes and social security), benefits, workers’ compensation, disability benefits and the like. XXXXXX +
XXXXX shall resolve all performance and personnel matters relating to XXXXXX + NAGEL’s Personnel. Under no
circumstances shall XXXXXX + NAGEL’s Personnel be considered employees, agents, or subcontractors of Customer.
13. Assignment / Subcontracting.
-8-
13.1 Assignment. Assignment of this Agreement or any interest therein by either party
without the prior written consent of the other party shall be void. Notwithstanding the foregoing, either party
may assign its interest in this Agreement to (i) an entity into which the party is merged, (ii) an entity to which
substantially all of the party’s assets or stock are sold, (iii) a subsidiary or other affiliate under common control or (iv) for
financing purposes, without the prior consent of the other party, provided that any such assignment
shall not diminish such party’s ability to perform its obligations hereunder.
13.2 Normal Operations. If either party ceases to conduct its operations in the normal
course of business, or becomes unable or otherwise fails to meet its obligations as they mature, or if any bankruptcy
proceeding is brought by or against either, or if a receiver is appointed or applied for, or an assignment for the benefit
of creditors is made by either, the other party may, without prejudice to other rights arising under this Agreement or by
operation of law, immediately terminate this Agreement by written notice. The party exercising such option may do so without
liability except for obligations incurred prior to termination.
13.3
Subcontracting. XXXXXX + XXXXX may subcontract all or a portion of the services to be performed under this Agreement to a subsidiary, division or other affiliate under common control without
Customer’s consent, provided that any such subcontract shall not diminish XXXXXX + NAGEL’s obligations to Customer
hereunder.
14. Force Majeure. Neither party shall be liable to the other for damages or otherwise for
any failure to perform any of its obligations undertaken when and if such failure is due to causes beyond such party’s
reasonable control including, but not limited to, floods brought about by natural causes, act of God, strikes, lockouts, riot,
terrorism (or restrictions related thereto) acts of war, act or default of the other party, its agents, servants, or
employees; provided, however, that the acts or default of the other party shall not relieve such party of any liability for damages
attributable to its own negligence in failing to perform any of its obligations hereunder or from maintaining insurance
coverage as required hereunder. In the event either party seeks to take advantage of this provision, it must notify the
other party in writing of the delay and the reasons therefore within five (5) days from the inception of the delay.
15. Termination.
15.1 Generally. Either party may terminate this Agreement, without cause, by
giving the other party a minimum of ninety (90) days’ prior written notice of such intended
termination. In the event of such termination: (i) unearned portions of any advance payments will
be credited to Customer, (ii) Customer will pay all outstanding charges legally due and owing under
this Agreement (iii) Customer will pay to XXXXXX + XXXXX, as of the termination date, any
outstanding balance of expenses which are Customer’s responsibility under Article 6 hereof,
including those set forth in Exhibit C; (iv) for employees dedicated to performing services
solely for Customer and of which XXXXXX + XXXXX has previously informed Customer in writing,
Customer will reimburse XXXXXX + XXXXX for all applicable incurred payroll costs including
termination pay and vacation pay required by law; (v) Customer will reimburse XXXXXX + XXXXX for
all unpaid lease and/or capital purchase obligations incurred at the request of Customer; and (vi)
Customer will, at XXXXXX + NAGEL’s option, reimburse XXXXXX + XXXXX for the actual cost of removing
any improvements within the distribution center erected or constructed at the request of Customer
or required by this Agreement.
15.2 Inventory Count / Reconciliation. Upon expiration or in the event of
termination of this Agreement for any reason, the parties shall cooperate in identifying any loss
of, or damage to, inventory prior to the expiration or termination date of this Agreement. In order
to identify any loss or damage, shortly before the expiration or termination date, the following
shall occur: (i) XXXXXX + XXXXX shall perform a physical inventory (and, if termination is by the
Customer prior to expiration and not for breach hereof, at Customer’s expense,) in order to
determine any loss of inventory; and (ii) the parties shall jointly conduct a walk-through of the
relevant portion(s) of the distribution center in order to identify any damaged inventory or the
distribution center. In no event shall XXXXXX + XXXXX be liable for loss or damage which is
identified after the expiration or termination date (whichever occurs first) of this Agreement.
16. Notices. Notices required or permitted to be given the parties under this Agreement
shall be in writing and shall be sufficiently given when delivered in person, by a nationally recognized overnight delivery
service capable of providing proof of delivery or by certified or registered letter to:
| | |
| To: | | Customer at the address specified in the first paragraph of this Agreement |
-9-
| | |
| | | 00 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Chief Financial Officer
with a copy to the Legal Department |
or such other addresses or to such other individuals that the parties may designate from time to time, in writing.
17. Customer’s Equipment. In the event that XXXXXX + XXXXX utilizes any of Customer’s
equipment in the performance of the services contemplated by this Agreement, XXXXXX + XXXXX shall exercise
reasonable care in the use of Customer’s equipment and be responsible for damage to such equipment caused by XXXXXX +
NAGEL’s negligence, reasonable wear and tear excepted. Maintenance and repair of such equipment, other than
customary operator cleaning and care, shall be performed by Customer or its authorized agents. XXXXXX + XXXXX
shall promptly inform Customer of any need for repairs. Repairs and/or replacements necessitated as the result of
XXXXXX + NAGEL’s negligence shall be at cost of said repair or at replacement cost less allowances for wear
and tear and trade-in, as applicable. Upon request from Customer, XXXXXX + XXXXX shall promptly return the equipment to
Customer in the same condition as originally accepted, except for ordinary and reasonable wear and tear, so
long as such return does not adversely affect XXXXXX + NAGEL’s ability to perform the Services.
18. Non-Solicitation. The parties each acknowledge that they both have a significant
investment in its management and supervisory employees. XXXXXX + XXXXX and Customer agree not to solicit or hire (as an
employee, consultant or through a third party) any managers or supervisors from the other party or their affiliates
during the term of this Agreement and for at least two (2) years after the expiration or termination of this Agreement. In
the event that either party violates this provision, the violating party agrees to pay a fee to the other party
calculated as fifty (50%) percent of the gross annual salary paid to any such manager or supervisor immediately prior to their
termination of employment. Such fee shall be paid upon hiring of such employee.
19. Miscellaneous.
19.1 Title to Products. Title to all Product(s) delivered by or for Customer shall remain at all times solely in customer. XXXXXX + XXXXX shall not be deemed a dealer, retailer, reseller, distributor,
marketer, merchant, vendor, consignee, seller or dropshipper of any Products, and Customer shall at all times be solely
responsible for, and have sole discretion for all matters regarding, the sale, shipment and
delivery of Products by Customer to its customers. XXXXXX + XXXXX shall store and ship Product(s)
as instructed free and clear of all liens or charges of any kind and character of any third
(non-XXXXXX + XXXXX) party claiming under or through XXXXXX + XXXXX. On Product(s) in XXXXXX +
NAGEL’s possession it shall have a general warehouseman’s lien for any unpaid charges, which lien
is released by delivering the Product(s) and/or payment of the charges. The parties agree that the
failure to issue warehouse receipts shall not be construed as a failure to comply with the receipt
provisions of Section 7 of the Uniform Commercial Code, and XXXXXX + XXXXX shall not suffer any
liability for such failure, provided that such failure is neither regular nor continuing.
19.2 Severability. If any provision of this Agreement should be construed or held
to be void, invalid or unenforceable, by order, decree or judgment of a court of competent jurisdiction then the
offending provision will be enforced to the extent allowable under applicable law and, the remaining provisions of
this Agreement shall not be affected thereby but shall remain in full force and effect.
19.3 Paragraph Headings. Headings as to the contents of particular paragraphs are provided for convenience only and are in no way to be construed as part of this Agreement or as a limitation of the scope of the particular
paragraph to which they refer.
19.4 Controlling Law. The validity, interpretation and performance of this Agreement and any dispute connected herewith shall be governed and construed in accordance with the laws of the State of
Wisconsin.
19.5 Entire Agreement. This Agreement, together with any agreement of even date herewith and signed by the parties hereto, constitutes the sole and only agreement between the parties hereto
pertaining to the within subject matter, and, effective as of the date of this Agreement, supersedes and cancels any and all
other oral or written agreements or understanding between or assumed by the parties or either of
them with respect to the subject matter of this Agreement, but without prejudice as to any
liability which may have accumulated thereunder.
-10-
19.6 Modifications: Successors. No modification or amendment of this Agreement
shall be effective unless submitted and agreed to in writing by the duly authorized representatives of the parties
hereto. The provisions of this Agreement shall be binding upon the successors and assigns of the parties hereto.
19.7 No Waiver. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other
breach or default or of any other right or remedy, unless such waiver be in writing and signed by the party to be bound. Nothing
in this Agreement shall be deemed to constitute a waiver of XXXXXX + NAGEL’s rights under Section 7-209 of the Uniform
Commercial Code. No modification or amendment of any provision of this Agreement shall be construed as a
waiver, breach or cancellation of any other provision. Either party’s failure to require strict compliance with any provision
of this Agreement shall not constitute a waiver or estoppel to later demand strict compliance with that or any other
provision(s) of this Agreement.
19.8 Survival. The terms of this Agreement which, by their nature, should survive
the termination or expiration of this Agreement shall be deemed to survive.
20. Addenda and Exhibits. The following Addenda and Exhibits are incorporated herein
and made a part hereof by reference:
Exhibits
| | o | | Exhibit A — Scope of Work — U.S. storage and transport |
| |
| | o | | Exhibit B — Description of Products |
| |
| | o | | Exhibit C — Pricing for Scope of Work |
| |
| | o | | Exhibit D — International Services |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly
authorized respective representatives on the day and year first above written.
| | | |
| TOMOTHERAPY INCORPORATED
| | XXXXXX + XXXXX INC. |
|
| | |
| By: /s/ Xxxxxxx Xxxxxxxx Xx.
| | By: /s/ Xxxx Xxxxx |
| Name: Xxxxxxx Xxxxxxxx Xx.
| | Name: Xxxx Xxxxx |
| Title: Vice President of Customer Support
| | Title: Chief Admin. Officer |
-11-
EXHIBIT A
Fast Start Program
General Statement of Work
Processes: Xxxxxx + Xxxxx will perform Fast Start services according to SOPs which are
agreed-upon jointly by Customer and Xxxxxx + Xxxxx.
Systems Requirements: Xxxxxx + Xxxxx will perform Fast Start services using a Xxxxxx +
Xxxxx system. Information will be manually entered into the K+N system, and Customer will transact
like inventory movements and adjustments within their ERP system independently. Joint
reconciliation of the systems will occur as outlined under SOPs agreed upon by Customer and Xxxxxx
+ Xxxxx and will apply to global inventory movements.
Ordering Process: The K+N International Contact Center will provide order processing and
escalation services to Customer on a 7x24 schedule. Xxxxxx + Xxxxx will receive orders from
Customer and process those requests according to agreed-upon procedures. Orders shall be received
from authorized Customer personnel directly and through no other source. Incomplete orders will be
handled through SOPs determined jointly by XXXXXX + XXXXX and Customer. Xxxxxx + Xxxxx will monitor
the delivery of the order until the order has reached final destination.
Replenishment Services: Xxxxxx + Xxxxx will assist Customer in the replenishment process by
creating an open receipt upon each outbound shipment, and reporting the open receipts back to
Customer for tracking and fulfillment. The process is outlined fully in an agreed upon SOP.
Replenishment levels and fulfillment will be the responsibility to Customer.
Inventory Accuracy: Xxxxxx + Xxxxx will be responsible for providing monthly cycle counts
on all locations within the defined Fast Start network. For all inventory adjustments (as
discovered during cycle counts or any other inventory discrepancy process), Xxxxxx + Xxxxx and
Customer will follow jointly agreed-upon SOPs to reconcile the network inventory to the Xxxxxx +
Xxxxx and Customer systems.
Key Performance Indicators: For the Fast Start Program, KPIs will be defined by Xxxxxx +
Xxxxx. Reports to capture KPI information will be designed and available during or after Fast
Start, but will not be used to goal or measure the Fast Start Program. Escalations to correct FE
ordering behaviors will also be tracked and reported.
Levels of Service: For the Fast Start Program, the highest service levels of 8 and 24 hours
will be a goal, but not requirement due to the limited number of stocking locations and delivery
distances. However, when possible, K+N will meet or exceed these service levels.
All international shipments are covered under standard XXXXXX + XXXXX terms and conditions will apply.
Reporting:
Xxxxxx and Xxxxx will offer the following reports during Fast Start:
Open Inbound Receipt
Orders by Day
Order Activity (detailed report of order activity)
Open Orders
Closed Orders
Completed Receipts
Product Location Report (in Excel file format)
Out-of-scope or Longer-Term Program Services:
| | • | | Co-mingling or managing distributor-owned inventory. |
| |
| | • | | Shipping and monitoring the inventory of 1st in Country shipments through the K+N Fast Start program.
Supporting 1st in Country shipments through Xxxxxx + Xxxxx Freight Forwarding and
Xxxxxx + Xxxxx Customs |
-12-
| | | | Brokerage is not considered part of this program, and will be facilitated through a
direct relationship between Customer and those Xxxxxx + Xxxxx divisions. |
| |
| | • | | Bar Coding program. |
| |
| | • | | Parts Planning Tool. |
| |
| | • | | Assistance with the returns process for parts from international locations. |
| |
| | • | | Visibility and tracking of inventory outside of the Fast Start Program network as defined in the Statement of
Work, to include, but not limited to direct shipments from vendors and manufacturers, shipments from the
Madison repair and production stock. |
| |
| | • | | Inventory substitution logic or processes. |
| |
| | • | | Part Pickup process through Xxxxxx + Xxxxx to request pickup of tools for return. |
| |
| | • | | Serial number tracking. |
| |
| | • | | Scrapping and Purge operations. |
| |
| | • | | Consolidated billing. |
| |
| | • | | Direct supplier shipments to Fast Start inventory locations. |
| |
| | • | | Offering a closed-loop system for returns and tracking returns of FE/customers/-distributors (field aging). |
| |
| | • | | Additional stocking locations. (When jointly agreed-upon by Customer and Xxxxxx + Xxxxx, additional
locations will operate under a separate SOW. Hours of operations for each location will be defined separately.
Pricing for these operations are included under their specific pricing structures.) |
| |
| | • | | Xxxxxx + Xxxxx acting as Importer of Record when possible. |
| |
| | • | | Taiwan operations. If added, will create new statement of work and pricing structure for location. |
| |
| | • | | Euro Part return process. |
North American Operations
Stocking Locations: North American stocking locations are defined as: Atlanta, Baltimore,
Los Angeles, and Chicago under a 3rd party vendor network. Pricing for these
operations is included under a North American pricing structure. Hours of operations to be
determined by site.
Outbound Order Processing: North American stocking locations will process outbound
orders as outlined in jointly defined SOPs.
Return Processing Services: Xxxxxx + Xxxxx will assist Customer in the returns process by
shipping the proper return information with outbound part and tool orders.
Receiving Process: Xxxxxx + Xxxxx will receive replenishment shipments against
automatically generated ASN (advanced shipping notices) generated by an outbound order, or manually
created ASNs triggered by an electronic (e-mail) shipment notification from Customer in order to
increase inventory levels. Xxxxxx + Xxxxx will also follow an agreed-upon procedure for blind
inventory receipts.
Cycle Counting: The North American stocking location network will perform monthly cycle
counts.
Initial Setup and Inventory Transfer: The North American inventory network will control
Customer inventory as transferred from the current TomoTherapy North American operations and
Madison service parts inventory. Distributor and Technician-held parts are not included in the
initial inventory transfer.
European Operation
Stocking Locations: A European stocking location will be agreed-upon jointly by Xxxxxx +
Xxxxx and Customer. Pricing for this operation is included under a separate European pricing
structure. Hours of operation to be determined by site.
-13-
Outbound Order Processing: The European stocking location will process outbound orders
as outlined in jointly defined SOPs.
Return Processing Services: Xxxxxx + Xxxxx will assist Customer in the returns process
by shipping the proper return information with outbound tool orders only.
Receiving Process: Xxxxxx + Xxxxx will receive replenishment shipments against
automatically generated ASN (advanced shipping notices) generated by an outbound order, or manually
created ASNs triggered by an electronic (e-mail) shipment notification from Customer in order to
increase inventory levels. Xxxxxx + Xxxxx will also follow an agreed-upon procedure for blind
inventory receipts.
Cycle Counting: The European stocking location will perform monthly cycle counts.
Hong Kong Operations
Hong Kong Operations: A Hong Kong stocking location will be defined jointly by Xxxxxx +
Xxxxx and Customer. Pricing for this operation is included under a pricing structure for this
location separately. Hours of operation to be determined by site.
Outbound Order Processing: The Hong Kong stocking location will process outbound
orders as outlined in jointly defined SOPs.
Return Processing Services: Xxxxxx + Xxxxx will assist Customer in the returns process by
shipping the proper return information with outbound tool orders only.
Receiving Process: Xxxxxx + Xxxxx will receive replenishment shipments against
automatically generated ASN (advanced shipping notices) generated by an outbound order, or manually
created ASNs triggered by an electronic (e-mail) shipment notification from Customer in order to
increase inventory levels. Xxxxxx + Xxxxx will also follow an agreed-upon procedure for blind
inventory receipts.
Cycle Counting: The Hong Kong stocking location will perform monthly cycle counts.
-14-
EXHIBIT B
PRODUCTS
The Products consist of medical device service parts supporting cancer radiation treatments. This
inventory includes high-tech and other sophisticated computer parts as well as supporting
peripherals, such as cables.
-15-
EXHIBIT C
PRICING
Pricing on this Exhibit C is for the services described on Exhibit A and Exhibit D in the Logistics
Service Agreement dated September 8, 2005 between TomoTherapy and Xxxxxx+Xxxxx,
Inc (K+N). This pricing is effective as of Xxxxx 0, 0000
XxX’s pricing is broken down regionally. Pricing will be reviewed as regions are added or as
business characteristics change.
| | | 1.0 Charges Applicable For Activity In The United States: |
| | 1.1 | | Storage Charges. |
| |
| | | | These charges apply to storage activity at K+N managed locations and is billed monthly in
advance based on estimated square footage needs with a minimum charge as indicated.
Variations in square footage utilized will be evaluated monthly. |
Chicago — $[ * ] per square foot/400sf min.
Baltimore — $[ * ] per square foot/400sf min.
Atlanta — $[ * ] per square foot/400sf min.
Los Angeles — $[ * ] per square foot/400sf min.
Fees for additional sites to be mutually agreed upon on a per site basis.
| | 1.2 | | Monthly Charges. |
| |
| | | | Monthly charges apply to the categories described below and are billed monthly in advance,
subject to quarterly review as described in the Agreement. |
| | • | | Missing/Damaged Freight Claims Processing: $[ * ] per month. This charge applies
to track and trace functions and customer services related to freight movement between TomoTherapy and K+N RSL’s and
from RSL to RSL. The charge will be evaluated quarterly based on order volume. This charge is billed
monthly, in advance. |
| |
| | • | | Management Fee: $[ * ]. The management fee covers overall network management from K+N’s central
operations center. The fee is billed monthly in advance, and is subject to quarterly
review based on volume and business characteristics changes. |
| | 1.3 | | Order Processing Charges. |
| |
| | | | Order processing charges reflect the management of the activity described, but do not include
the movement of freight. These fees are billed monthly, in arrears. |
| | • | | Less Than Truck Load Order Rate: $[ * ] per order requiring LTL service level. |
| |
| | • | | Next Flight Out Order Rate: $[ * ] per order requiring NFO service level. |
| |
| | • | | International Order Rate: $[ * ] per order requiring International service level. International order defined
as any shipment crossing national borders. |
-16-
| | • | | Parcel Service Order Rate: $15.00 per order requiring parcel delivery service
level. |
| | 1.4 | | Handling and Delivery Charges |
| |
| | a. | | Handling: |
| | • | | Inbound Handling Rate: TomoTherapy will compensate K+N
$[ * ] per inbound piece. Charges billed monthly in arrears. |
| |
| | • | | Outbound Pick/Pack: TomoTherapy will compensate K+N $[ * ] per outbound piece. Charges are
billed monthly in arrears. |
| |
| | • | | After Hour Rates (min. lhr): When an RSL is required to open to meet a scheduled delivery between
the hours of 5PM and 8AM local RSL time Monday through Friday, a $[ * ] per hour after hours
fee shall apply. |
| |
| | • | | Special Projects At RSL (min. lhr): A Special Project is a significant task, which is beyond the work
described in the Scope of Services. These tasks will be billed at $[ * ] per hour. |
| | • | | Same Day Delivery (Car/Van): A request for delivery the same
business day with a promised
delivery within 8hrs. Such a service will be billed at $[ * ] per order (plus applicable mileage charge
after 25 miles) |
| |
| | • | | Next Day Delivery (Car/Van): A request for a delivery on the next business day after 8AM. Such a
service will be billed at $[ * ] per order (plus applicable mileage charge after 25 miles) |
| |
| | • | | Car/Van Mileage Charge (after 25 miles): $[ * ] per mile |
| |
| | • | | Same Day Delivery (Truck): A request for delivery the same business day with a promised delivery
within 8hrs. Such a service will be billed at $[ * ] per order (plus applicable mileage charge after 25
miles) |
| |
| | • | | Next Day Delivery (Truck): A request for a delivery on the next business day after 8AM. Such a
service will be billed at $[ * ] per order (plus applicable mileage charge after 25 miles). |
| |
| | • | | Truck Mileage Charge (after 25 miles): $[ * ] per mile |
| |
| | • | | Wait Time Charge: The first fifteen minutes are included in the
base rate for each delivery. K+N will
charge TomoTherapy $[ * ] per fifteen minutes beginning on the sixteenth minute.
Wait time fees shall also apply to After-hour deliveries. |
| | c. | | Next Flight Out Pricing: |
NFO
Service Zone Map and Matrix between all points in the Continental
USA & Canada
| | | | | | | |
| Zone 12 - Canada | | Xxxx 00 - Xxxxxx | | Xxxx 00 - Xxxxxx | | Zone 15 - Canada |
| British Columbia
| | Manitoba | | Ontario | | New Brunswick |
| Alberta
| | | | Quebec | | Nova Scotia |
| Saskatchewan
| | | | | | Xxxxxx Xxxxxx Island |
|
| | | | | | Newfoundland |
-17-
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| | | E | | | | E | | | | E | | | | D | | | | D | | | | C | | | | C | | | | B | | | | C | | | | A | | | | B | | | | I | | | | H | | | | F | | | | G | | | | J | |
| 11
| | | E | | | | E | | | | E | | | | D | | | | D | | | | D | | | | D | | | | C | | | | D | | | | B | | | | A | | | | I | | | | I | | | | F | | | | G | | | | J | |
| 12
| | | E | | | | F | | | | H | | | | H | | | | H | | | | H | | | | H | | | | H | | | | I | | | | I | | | | I | | | | — | | | | — | | | | — | | | | — | | | | — | |
| 13
| | | H | | | | H | | | | H | | | | H | | | | F | | | | G | | | | H | | | | H | | | | H | | | | H | | | | I | | | | — | | | | — | | | | — | | | | — | | | | — | |
| 14
| | | H | | | | H | | | | H | | | | H | | | | G | | | | F | | | | G | | | | F | | | | G | | | | F | | | | F | | | | — | | | | — | | | | — | | | | — | | | | — | |
| 15
| | | I | | | | I | | | | I | | | | I | | | | I | | | | I | | | | I | | | | I | | | | I | | | | G | | | | G | | | | — | | | | — | | | | — | | | | — | | | | — | |
| 16
| | | J | | | | J | | | | J | | | | J | | | | J | | | | J | | | | J | | | | J | | | | J | | | | J | | | | J | | | | — | | | | — | | | | — | | | | — | | | | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | First
Flight Door-to-Door Service (KNLFFS) | |
| | | Rate Scale | | | Rate Scale | | | Rate Scale | | | Rate Scale | | | Rate Scale | | | Rate Scale | | | Rate Scale | | | Rate Scale | | | Rate Scale | | | Rate Scale | |
| Weight (Lbs.) | | A | | | B | | | C | | | D | | | E | | | F | | | G | | | H | | | I | | | J | |
| Minimum
| | | 160.0 0 | | | | 160.0 0 | | | | 160.0 0 | | | | 160.0 0 | | | | 1.60.0 0 | | | | 200.0 0 | | | | 200.0 0 | | | | 200.0 0 | | | | 200.0 0 | | | | 255.0 0 | |
| Per Lb.
| | | 2.20 | | | | 2.20 | | | | 2.20 | | | | 2.20 | | | | 2.20 | | | | 2.85 | | | | 2.85 | | | | 2.85 | | | | 2.85 | | | | 3.59 | |
| 500#s
| | | 2.12 | | | | 2.12 | | | | 2.12 | | | | 2.12 | | | | 2.12 | | | | 2.79 | | | | 2.79 | | | | 2.79 | | | | 2.79 | | | | 3.52 | |
| l,000#s
| | | 2.06 | | | | 2.06 | | | | 2.06 | | | | 2.06 | | | | 2.06 | | | | 2.72 | | | | 2.72 | | | | 2.72 | | | | 2.72 | | | | 3.45 | |
Rates
do not apply for intra-Canada traffic.
-18-
The First Flight rates include pick-up and delivery Monday through Friday between 8:00 AM and
5:00 PM within 20 miles of the terminal location. Beyond 20 miles, an additional charge of
$2.35/mile one way will be assessed for pick-up and/or delivery, whichever is applicable.
First Flight shipments picked up and/or delivered outside the time frames stated above will
incur additional charges of:
| | | | | |
| Monday
through Friday - 5:01 PM to 7:59 AM
| | | $[ * ] | |
| Saturday
- all hours
| | | $[ * ] | |
| Sunday and
legal holidays - all hours
| | | $[ * ] | |
The following surcharges are applicable if services are required:
| | | | | | |
| Attempted
pick-up/delivery (AM/PM points)
| | $[ * ] minimum or $[ * ]/cwt |
| Attempted
pick-up/delivery (2/2* points)
| | $[ * ] or $[ * ]/cwt |
| C.O.D. service
| | $[ * ] minimum or [ * ]%
of the C.O.D. amount |
| Convention Center/Hotel pick-up/delivery
| | $[ * ] minimum or $[ * ]/cwt |
| Dedicated
pick-up/delivery vehicle (other than normal route truck)
| | $[ * ] for straight
truck |
|
| | $[ * ] for tractor/trailer |
| Inside
pick-up/delivery
| | $[ * ] minimum or $[ * ]/cwt |
| Lift gate service
| | $[ * ] per pick-up/delivery |
| NAV Fee
(Canada air shipments only)
| | [ * ]% of base air freight charge |
| Re-consignment fee
| | $[ * ] per shipment |
| Re-delivery service
| | $[ * ] minimum or $[ * ]/cwt |
| Residential
pick-up/delivery
| | $[ * ] minimum or $[ * ]/cwt |
| Storage
| | First 5 business days free; thereafter |
|
| | $[ * ] per pallet
position (4‘ x 4‘ x 4‘) per month |
| Terminal fee
(Canada shipments only) | | | $[ * ] |
| Two man
pick-up/delivery
| | $[ * ] per hour |
| Unpacking & Debris Removal
| | $[ * ] minimum or $[ * ]/cwt |
| Waiting time
| | $[ * ] per 1/4 hour, first 15 minutes free |
| 2.0 | | Charges Applicable For Activity In Asia Pacific (All in Hong Kong dollars) |
-19-
These charges apply to storage activity at K+N managed locations and billed monthly in
advance based on estimated square footage needs with a minimum charge as indicated. Variations in
square footage utilization will be evaluated monthly.
Hong
Kong — [ * ] per square foot. [ * ] square foot minimum.
Fees for additional sites to be mutually agreed upon on a per site basis.
These charges apply to the categories described below and are billed monthly in advance, subject
to quarterly review as described in the Agreement
| | | | Management Fee: [ * ] per month. |
| |
| | 2.3 | | Handling and Delivery Charges: |
| |
| | a. | | Handling: |
| | • | | Inbound Handling Rate: TomoTherapy will compensate K+N [ * ] per
inbound piece. Charges billed monthly in arrears. |
| |
| | • | | Outbound Pick/Pack: TomoTherapy will compensate K+N [ * ] per inbound piece. Charges billed
monthly in arrears. |
| |
| | • | | Documentation Preparation: [ * ] per document needed for
deliveries within greater Hong Kong. |
|
| |
| | • | | Monthly Cycle Counts: [ * ] per hour. Minimum 5 hours. |
| | • | | Local Delivery: Local deliveries are defined as shipments destined
for locations within Hong Kong.
Such services will be billed at [ * ] per kg per delivery location plus tunnel and parking fees. Minimum [ * ] per delivery. |
| |
| | • | | International Delivery: International deliveries are defined as shipments requiring the crossing of
national borders. Such services will be billed per the rates of the K+N provider chosen to perform the
delivery. |
| |
| | • | | Heavy Lift Charges: Shipments weighing between 200 and l,000kgs will be billed an additional [ * ] per shipment. Shipments weighing between 1,000 and l,500kgs will be billed an additional [ * ] per shipment. Charges for shipments over l,500kgs will be mutually agreed upon. |
| 2.4 | | Import/Export Charges: |
| | • | | All In Rate: Terminal charges, airline documentation, handling and documentation charges,
devanning: [ * ] per kg. Minimum [ * ] per shipment. |
| |
| | • | | Import/Export Declaration (per outlay):
[ * ]% of goods value. Minimum [ * ] per document. |
| |
| | • | | Import/Export Declaration Handling (if required): [ * ] per entry up to 10 lines. [ * ] per
additional line item. |
| |
| | • | | Survey Fee (if any): [ * ] per shipment. |
| |
| | • | | Customs Inspection (if any): [ * ] per shipment. |
| | | 3.0 Charges Applicable For Activity In The European Union (AH in Euros except where noted) |
These charges apply to storage activity at K+N managed locations and billed monthly in advance
based on estimated square footage needs with a minimum charge as indicated. Variations in square
footage utilization will be evaluated monthly.
Brussels — [ * ] per square meter. 50 square meter minimum.
Fees for additional sites to be mutually agreed upon on a per site basis.
-20-
These charges apply to the categories described below and are billed monthly in advance,
subject to quarterly review as described in the Agreement.
Management
Fee: $[ * ](USD)
| | 3.3 | | Handling and Delivery Charges: |
| |
| | a. | | Handling: |
| | • | | Inbound Handling Rate: TomoTherapy will compensate K+N [ * ] per
inbound piece. Charges billed monthly in arrears. |
| |
| | • | | Outbound Pick/Pack: TomoTherapy will compensate K+N [ * ] per inbound piece. Charges billed
monthly in arrears. |
| |
| | • | | Documentation Preparation: [ * ] per document needed for deliveries within Belgium. |
| |
| | • | | Monthly Cycle Counts: [ * ] per hour. Minimum 5 hours. |
| | • | | Local Delivery: Local deliveries are defined as shipments
destined for locations within Belgium. Such services will be billed at [ * ] per kg and [ * ] per km per delivery location plus tunnel and parking
fees. |
| |
| | • | | International Delivery: International deliveries are defined as shipments requiring the crossing of
national borders. Such services will be billed per the rates of the K+N provider chosen to perform the
delivery. |
| | 3.4 | | Import/Export Charges: |
| | • | | All In Rate: Terminal charges, airline documentation, handling and documentation charges,
devanning: .06 per kg. Minimum [ * ] per shipment. |
| |
| | • | | Import/Export Declaration (per outlay): [ * ] per document. |
| |
| | • | | Import/Export Declaration Handling (if required): [ * ] per entry up to 10 lines. [ * ] per additional
line item. |
| |
| | • | | Survey Fee (if any): [ * ] per shipment. |
| |
| | • | | Customs Inspection (if any): [ * ] per shipment. |
| 4.0 | | Supplemental Service Charges: |
| | 4.1 | | Special Projects At K+N: |
| |
| | | | A “Special Project” is a significant task, which is beyond the work described in the
Scope of Services. If either party believes that a task qualifies as a Special Project
the parties will meet and agree upon scope and compensation prior to implementation. |
| |
| | 4.2 | | Information Technology Services: |
| |
| | | | K+N charges include maintenance of functionality existing as of September 21, 2005.
Supplemental requirements and new projects will be priced as Special Projects. |
| | 5.1 | | CSL Billing: |
| |
| | | | K+N will provide TomoTherapy billing on the first of each month. The billing will be in PDF format
with accompanying backup documentation for all charges in Excel format. This billing will include all
K+N management fees, order processing charges, freight claims processing fees and the K+N Logistics
Manager implant charges. In addition this billing will include all RSL related activities and storage fees.
To include: |
| | 5.1.1 | | RSL storage. |
| |
| | 5.1.2 | | Inbound receiving charges. |
| |
| | 5.1.3 | | Outbound receiving charges. |
| |
| | 5.1.4 | | After-hours surcharges. |
-21-
| | 5.1.5 | | RSL delivery charges, including mileage charges. |
| |
| | 5.1.6 | | NFO charges. |
| |
| | 5.1.7 | | Wait charges. |
| |
| | 5.1.8 | | Cycle counts (where applicable). |
| |
| | 5.1.9 | | Document preparation (where applicable). |
| |
| | 5.1.10 | | RSL special projects. |
| | 5.2 | | Freight Forwarding Billing: |
| |
| | | | In addition to monthly CSL billing K+N will provide billing on the first of each
month to TomoTherapy from its Freight Forwarding Office in Chicago. This billing will
include all fees associated with international shipping and receiving from TomoTherapy’s
Madison location as well as shipments and receipts from K+N RSLs and Freight Forwarders
worldwide. The billing will be provided in an Excel spreadsheet accompanied by hard copy
backup of all charges. Billing will include: |
| | 5.2.1 | | Terminal charges. |
| |
| | 5.2.2 | | Airline documentation. |
| |
| | 5.2.3 | | Handling and documentation charges. |
| |
| | 5.2.4 | | Devanning |
| |
| | 5.2.5 | | Import/Export declaration |
| |
| | 5.2.6 | | Import/Export declaration handling. |
| |
| | 5.2.7 | | Survey fees. |
| |
| | 5.2.8 | | Customs inspection. |
-22-
EXHIBIT D
INTERNATIONAL SERVICE
Scope.
1.1 International Services. XXXXXX + XXXXX will perform certain international
services to manage the transportation and distribution of Customer’s Products. International
Services will include utilization of common carriers and contract carriers as specified in Section
1.2 (collectively called “Carriers”) for air, sea and rail transportation. International Services
also includes the storage and local delivery of Product utilizing non-U.S. distribution centers.
1.2 Carrier Contracts: XXXXXX + XXXXX as Customer’s Agent. Movement of Customer’s
Products will be made pursuant to agreements for carriage. Customer agrees that XXXXXX + XXXXX is
acting as a limited agent for Customer when it selects Carriers, arranges for transportation and
otherwise performs International Services under this Agreement. In no event shall Customer hold
XXXXXX + XXXXX responsible for the failure of any Carrier to perform its obligations under the
Carrier Contracts or for the acts or omissions of the Carriers.
1.3 Selection of Carriers. XXXXXX + XXXXX will use objective measurements and/or
shipment profile information identified by Customer when selecting carriers.
1.4 Authority. In providing the International Services described above, with the advice and
consent of Customer, XXXXXX + XXXXX shall have actual authority to (i) direct the day to day
logistical operations of Customer’s carrier resources consistent with this Agreement, and (ii) to
purchase carrier transportation services for the benefit of Customer in accordance with XXXXXX +
NAGEL’s standard practice as supplemented by guidelines (if any) established between XXXXXX + XXXXX
and Customer.
1.5 Special Requirements. If Customer requires XXXXXX + XXXXX to conform to any special
requirements or procedures with respect to the International Services which are not set forth in
this Agreement (“Special Requirements”) then Customer shall notify XXXXXX + XXXXX in writing of
such requirements or procedures. Special Requirements shall not be effective until consented to by
XXXXXX + XXXXX in writing and, in any event, shall be subject and subordinate to the terms and
conditions of this Agreement.
1.6 Customer Retained Responsibilities. XXXXXX + NAGEL’s
ability to provide the International Services as specified in this Agreement depends upon
Customer’s Performance of its obligations under this Agreement,
including without limitation: (i)
providing XXXXXX + XXXXX with current, accurate and complete information
with respect to the Products to be shipped, including without limitation, hazard characteristics
and product weights and NMFC Product Descriptions for each product to be shipped; (ii) providing
XXXXXX + XXXXX with accurate Product weights; (iii) providing appropriate documents authorizing
XXXXXX + XXXXX to communicate with Carriers on Customer’s behalf, and (iv) such other
responsibilities which are reasonable and customary. XXXXXX + XXXXX will promptly notify Customer
when it believes that Customer’s performance (or lack of performance) is adversely impacting upon
XXXXXX + NAGEL’s ability to provide the International Services.
1.7 Assistance with Claims for Loss or Damage. XXXXXX + XXXXX agrees to provide
reasonable and appropriate assistance with claims for loss of or damage to Products in accordance
with XXXXXX + NAGEL’s then current Freight Claims Procedure. All liability for lost, damaged,
delayed or misdelivered Products in any way related to the transportation services will be the
responsibility of the applicable Carrier or the Customer pursuant to the applicable terms of
carriage and/or or the respective Carrier Contract. Products are not insured by XXXXXX + XXXXX
against loss or injury however caused under Carrier Contracts.
1.8 Electronic Communication. Unless otherwise specified in Exhibit A, the
primary communication channel for routine shipment information will be in accordance with XXXXXX +
NAGEL’s electronic communications policies and procedures and via XXXXXX + NAGEL’s systems.
Initially, it is anticipated that a file containing data for all active shipments in a standard
format will be transmitted to Customer as required on an ongoing basis. The parties intend that
only non-routine matters or inquiries be handled by specific inquiry via facsimile, e-mail or
telephone between Customer and XXXXXX + XXXXX. Customer understands and accepts the risk that data
transmitted by Customer over the Internet may be delayed or misdirected causing errors in the
performance of the services for which XXXXXX + XXXXX is not responsible.
1.9 Management Reports. Management reports will only include data for shipments which
are managed by XXXXXX + XXXXX. Management reports furnished to Customer will be in XXXXXX + NAGEL’s
standard format unless otherwise agreed and may include Customer shipping costs, transit times,
shipper, consignee, shipper numbers, order numbers, mode, carrier, commodity, pieces, weight,
density and other relevant data requested by Customer and maintained by KUEHNE +
-23-
XXXXX. On a periodic basis, XXXXXX + XXXXX may also evaluate and report to Customer the
performance of the Carriers measured against their obligations under the Carrier Contracts.
2. Pricing for International Services. The pricing for
International Services provided under this Agreement shall be presented to Customer based on the
type of service requested (either per regional location for storage and local transport or by mode
of transport for air/sea freight services). Any limitation of liability as referenced herein or
influenced by a description of articles as referenced on a xxxx of lading is subject to the
understanding that, where applicable, alternative pricing may be available at a higher charge and
increased limits of liability. Such increased liability shall be subject to restrictions imposed by
individual Carrier.
-24-
