1/6/97
REQUIREMENTS AGREEMENT
THIS REQUIREMENTS AGREEMENT (the "Agreement"), made effective as of
January 6, 1996, is by and between POROUS MEDIA CORPORATION, a Minnesota
corporation which has its principal place of business at 0000 Xxxxxxx Xxxx, Xx.
Xxxx, Xxxxxxxxx 00000 ("Porous"), and WTC INDUSTRIES, INC., a Minnesota
corporation which has its principal place of business at 00000 00xx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 ("WTC").
BACKGROUND
A. Porous manufactures and assembles cyst filters, as identified by
internal Porous product number DFE12025M03B-Y (which product, together with all
improvements, enhancements and modifications thereto, whether now existing or
hereafter arising, plus all other cyst filters produced by Porous and sold to
WTC, shall be referred to herein as the "Filters").
B. WTC assembles, markets and sells throughout the world the
PENTAPURE(R) water purification system (formerly referred to as the OASIS water
purification system) and the SPRING(TM) water filtration system, both of which
are personal water treatment systems that can be used to remove cryptosporidium
and giardia cysts, as well as other particulates and organisms, from water.
Those two products, together with all improvements, enhancements and
modifications to those two products, whether now existing or hereafter arising,
shall be referred to herein as the "Systems".
C. The Systems require cyst filters similar to the Filters manufactured
by Porous.
D. Porous has agreed to manufacture and sell to WTC all of WTC's
requirements for Filters, and WTC has agreed to purchase all of its requirements
of cyst filters for its Systems exclusively from Porous, in accordance with the
terms and conditions of this Agreement.
Wherefore, the parties agree as follows:
TERMS
ARTICLE I
EXCLUSIVITY; MINIMUM QUANTITIES
1.1 Exclusive. During the 5-year period commencing April 1, 1997 and ending
March 31, 2002 (the "Term"), WTC shall purchase from Porous all of
WTC's requirements for cyst filters used in the Systems (including
WTC's requirements for cyst filters used in replacement parts and
cartridges for the Systems), and Porous shall sell to WTC all of WTC's
cyst filter requirements for the Systems. Porous agrees not to sell
Filters during the Term to third parties for use in products which
compete with the Systems or for resale as an aftermarket replacement
part for the Systems.
1.2 Minimum Purchases and Sales. During each 12-month period beginning on
April 1 throughout the Term (each such 12-month period is a "Year"),
WTC shall purchase a minimum of 100,000 Filters from Porous and Porous
shall sell to WTC all of WTC's cyst filter requirements for the Systems
during each Year.
1.3 Definitions.
(A) For all purposes of this Agreement, Filters will be deemed to
be "purchased" by WTC and "sold" by Porous in the Year in
which WTC delivers the purchase order for those Filters to
Porous, but only if WTC pays Porous the amount due under the
invoice for those Filters by the date payment is due pursuant
to Sections 6.4.
(B) Each 3-month period beginning on April 1, July 1, October 1
and January 1 throughout the Term is a "Quarter".
ARTICLE II
TOOLING; MANUFACTURING INFORMATION
2.1 Tooling. WTC shall deliver all of the tooling (the "Tooling") for cyst
filters used by WTC's current cyst filter supplier to Porous as soon as
possible after the date hereof, but in no event later than 45 days
after the effective date of this Agreement. Upon the termination, for
any reason, of this Agreement, Porous must promptly return the Tooling
to WTC, at Porous's sole expense, in the same condition the Tooling was
in on the date WTC delivered the Tooling to Porous, normal wear and
tear excepted. At all times, WTC retains title to the Tooling and
Porous must not transfer or subject the Tooling to any lien or other
encumbrance. Porous must only use the Tooling for the sole purpose of
producing Filters for WTC.
2.2 WTC Information.
(A) WTC shall deliver to Porous, contemporaneously with the
execution of this Agreement, copies of the xxxx of materials
and specifications for the Systems, a copy of the list of
vendors currently supplying materials and parts to WTC for the
Systems and copies of such other information, documentation
and drawings directly related to the Systems as Porous may
reasonably request to enable Porous to manufacture the Systems
(collectively, the "WTC Information"). Until this Agreement is
terminated, Porous may request updates of the WTC Information
at the end of each Quarter to reflect ongoing developments in
the WTC Information.
(B) Porous acknowledges that the WTC Information is confidential
and constitutes proprietary information of WTC. Except as
provided in Article XV, Porous shall not make any use of the
WTC Information, either for itself (except solely to meet its
obligations under this Agreement) or for the benefit of any
third party. Porous shall use all reasonable efforts to
prevent any disclosure of the WTC Information to any third
party, including, without limitation, Porous's employees and
agents for whom knowledge of the WTC Information is not
essential to the performance of Porous's obligations under
this Agreement, except as provided in Article XV.
(C) Except as provided in Article XV, upon the termination of this
Agreement, for any reason, Porous shall promptly redeliver all
written WTC Information, contained in or on any media, to WTC,
including, without limitation, all copies of the WTC
Information, on whatever media, and all other materials
containing or reflecting any information about the WTC
Information (whether prepared by WTC or otherwise) and Porous
shall not retain any copies, extras or other reproductions, in
whole or in part, of the WTC Information, and such redelivery
shall be certified in writing by an authorized officer of
Porous supervising such redelivery.
(D) Notwithstanding the provisions of Sections 2.2(A) through (C),
Porous is not under any obligation to preserve the
confidentiality of, or be restricted in the use of, any
information which
(1) becomes generally available to the public other than
as a result of a disclosure by Porous or Porous's
directors, officers, employees, agents or advisors,
or
(2) becomes available to Porous on a non-confidential
basis from a source other than WTC, its officers,
employees, agents, or its advisors, provided that
such source is not bound by a confidentiality
agreement with or other obligation of secrecy to WTC
or another party.
ARTICLE III
FORECAST FOR FILTERS
On the first business day of each Quarter, WTC shall provide Porous
with a written 6-month forecast of its estimated monthly Filter orders for the
six-month period beginning on such day (a "6-Month Forecast") as well as a
forecast of its estimated Filter orders each remaining Year in the Term. Porous
acknowledges that such forecasts are for Porous's convenience only and agrees
that none of the forecasts create any liability or obligation of WTC to submit
orders or make purchases matching or approximating those forecasts.
ARTICLE IV
ORDERING
WTC shall order all Filters under this Agreement by delivering to
Porous a written, non-cancelable purchase order. Each purchase order shall
include a description of the Filter ordered (including the internal Porous
product number), the quantity, the delivery date(s) and destination(s) for
Filters ordered (the "Order Terms"). Porous shall not be required to deliver any
Filters sooner than 30 days after WTC has delivered the purchase order for those
particular Filters. Upon receipt of each purchase order, Porous must deliver the
Filters orders pursuant to the order and this Agreement.
ARTICLE V
SHIPPING
5.1 Timing of Delivery. During each calendar month, Porous must deliver for
shipment to WTC the number of Filters ordered by WTC in each purchase
order delivered to Porous during each such month no later than 5
business days after the delivery date specified in each such purchase
order, up to a maximum of 125% of the estimated number of Filters
listed in the most recent 6-Month Forecast for that month. Porous must
use its best efforts to deliver for shipment to WTC that number of
Filters ordered in excess of that percentage as promptly as reasonably
possible. Porous acknowledges and agrees that time is of the essence
with respect to the delivery of Filters in accordance with this Section
5.1.
5.2 Shipping. Filters must be shipped F.O.B. Porous's plant. Porous shall
make packaged products available to UPS, or such other carrier as WTC
may request, at Porous's place of business for shipping to the
destination(s) specified in each of WTC's purchase orders. At the time
Porous makes a delivery of ordered Filters, it shall simultaneously
provide WTC with a certification to the effect that the Filters
delivered meet or exceed the minimum performance specifications
described in Article VII below.
5.3 Carrier Expenses. WTC shall pay and be responsible for all expenses of
carrier expenses and shall bear the risk of loss once Porous has
delivered the packaged products to a carrier as provided in paragraph
5.2 above.
ARTICLE VI
PRICE TERMS; PAYMENT
6.1 Price. The price charged WTC by Porous for each Filter purchased by WTC
which has the internal Porous product number DFE12025M03B-Y is
determined by the cumulative number of such Filters purchased each
Year. The first 50,000 such Filters purchase in each Year by WTC must
be sold by Porous for $1.80 per Filter. After the cumulative number of
such Filters purchased by WTC reaches 50,000 units, the price of each
such Filter will decrease in accordance with the prices set forth in
the following table:
CUMULATIVE QUANTITY PURCHASED PRICE/FILTER
----------------------------- ------------
50,001 through 100,000 $1.65
100,001 through 175,000 1.50
175,001 through 400,000 1.30
400,001 through 1,000,000 1.10
1,000,001 through 2,500,000 0.90
2,500,001 through 5,000,000 0.85
5,000,001 and over 0.80
6.2 Price Adjustments. The prices set forth in Section 6.1 shall be each be
increased by 2.5% per year effective April 1, 1998 and each subsequent
April 1st.
6.3 Invoicing and Payment. Porous must date each invoice for each purchase
order WTC delivers to Porous no earlier than the date on which all of
the Filters requested under each purchase order have been shipped. WTC
must pay the amount of the invoice net 30 from date of invoice.
6.4 Guarantee. Notwithstanding the foregoing, WTC has contemporaneously
delivered to Porous a Guarantee in the form attached hereto as Exhibit
A pursuant to which Xxxxxx X. Xxxx, Xx. has personally guaranteed WTC's
obligations under this Agreement, subject to a maximum cumulative
liability under the guarantee of $100,000 (the "Guarantee").
ARTICLE VII
PERFORMANCE STANDARDS
All Filters delivered to WTC by Porous must, at a minimum, meet the
performance specifications set forth on Schedule 7 attached to this Agreement.
ARTICLE VIII
LIMITED WARRANTY; PRODUCT LIABILITY
8.1 Warranty.
(A) Porous warrants to WTC and all purchasers of WTC products
containing the Filters sold to WTC during the Term, that for a
period of six (6) months from the date of shipment from the
originating factory that at the time of shipment the Filters
will be free from defects in material and workmanship for
normal use and service, such defects including, without
limitation, a failure of the Filters to meet the performance
standard set forth in Article VII. This warranty does not
extend to Filters subjected to misuse, neglect, accident or
improper installation, or to Filters which have been altered
or repaired by anyone other than Porous. WTC, or any person
receiving the Filters sold to WTC during the Term, shall
contact Porous as soon as any defect becomes known and, upon
delivery of the defective Filter(s) to Porous, Porous must
promptly repair or replace the defective Filter(s). Porous's
sole obligation under this warranty is limited to repair or
replacement of the defective Filter(s), as Porous deems
appropriate, or refund of the purchase price. If Porous elects
to repair the defective Filter(s) and if Porous is unable to
repair those Filter(s) after two attempts, Porous must
promptly replace the defective Filter(s). All repaired or
replaced Filters will be shipped to WTC with transportation
charges paid by Porous to any destination in the United
States, excluding Alaska and Hawaii. For the latter two states
and all other countries, transportation charges will be paid
by Porous to the nearest port of export. If, after notifying
Porous of a defect, WTC returns the Filter(s) to Porous for
repair and Porous reasonably determines that it has not
breached the foregoing warranty, WTC will be assessed Porous's
regular reconditioning charges.
(B) THIS WARRANTY IS OFFERED IN LIEU OF ANY OTHER WARRANTY,
EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. POROUS SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT
OR CONSEQUENTIAL DAMAGES ARISING FROM DEFECTIVE FILTERS.
ARTICLE IX
REMEDIES AND LIMITATION OF LIABILITY
9.1 Product Warranty. With respect to Porous's warranty obligations under
Section 8.1, WTC's exclusive remedy is replacement or refund. Porous
will not be liable to WTC, or its agents or purchasers, or to any third
party, for any indirect, collateral, special, incidental or
consequential loss, personal injury, damage or expense (including
without limitation, loss of profits, or goodwill and any losses arising
from claims by third parties) arising, directly or indirectly, from the
sale or use of the Filters whether such claim is based on warranty,
tort, contract, negligence, strict liability or on any other basis.
Under no circumstances will the liability of Porous to WTC under
Article VIII exceed the amount paid by WTC to Porous for the Filters.
ARTICLE X
PATENTS
10.1 Indemnification. Porous shall indemnify and hold harmless WTC and any
other person or entity receiving the Filters sold to WTC during the
Term against any claim of a third party that the Filters manufactured
by Porous infringe any United States Letters Patent; provided, however,
that if WTC furnishes specifications to Porous, WTC shall hold Porous
harmless against any such claims which arise out of compliance with the
specifications. In the event that any Filters manufactured by Porous
are held to constitute infringement and their use is enjoined, Porous
must, if Porous is unable, after using its best efforts and within a
reasonable period of time, to secure for WTC the right to continue
using such Filters, either by suspension of the injunction or by
securing a license or otherwise, at Porous's sole own expense, either
replace the infringing Filters at WTC's place of business with
non-infringing Filters, or modify the infringing Filters so that they
become non- infringing, or accept from WTC the return of the enjoined
Filters and refund to WTC the purchase price thereof.
10.2 Discontinuance of all Sales and Purchases. Whenever Porous deems it
necessary or expedient for the protection of Porous's patent rights or
for the prevention of patent infringement litigation to discontinue the
sale of Filters, WTC, upon receipt of written notice from Porous that
Porous intends to discontinue the sale of Filters, shall make no
further sales or use of the Filters manufactured by Porous and, except
for payments due WTC pursuant to the following sentence, neither Porous
nor WTC will have any further obligations under this Agreement and this
Agreement will immediately terminate. WTC must return all Filters then
held by WTC to Porous, at Porous' sole expense, and Porous must
promptly tender payment to WTC in an amount equal to the amount paid by
WTC for those returned Filters.
ARTICLE XI
TERM AND TERMINATION
11.1 Term and Termination. The term of this Agreement commences as of the
effective date hereof and continues until the last date of the Term,
unless earlier terminated as provided below:
(A) Porous may terminate this Agreement if (i) WTC is dissolved or
becomes insolvent (as that term is defined in the United
States Bankruptcy Code), (ii) WTC voluntarily commences or
there is commenced involuntarily against WTC (and such
involuntary action remains undismissed for a period of 60
days) a case under the United States Bankruptcy Code, (iii)
WTC materially breaches any of its obligations under this
Agreement and fails to cure such breach within 30 days of
written notice of such breach. WTC will be deemed to have
materially breached this Agreement if WTC fails to pay Porous
for Filters in accordance with Section 6.4 or if WTC fails to
meet the minimum purchase requirements under Section 1.1.
(B) WTC may terminate this Agreement if (i) Porous is dissolved or
becomes insolvent (as that term is defined in the United
States Bankruptcy Code), (ii) Porous voluntarily commences or
there is commenced involuntarily against Porous (and such
involuntary action remains undismissed for a period of 60
days) a case under the United States Bankruptcy Code, (iii)
Porous materially breaches any of its obligations under this
Agreement and fails to cure such breach within 30 days of
written notice of such breach, or (iv) WTC ceases to
manufacture the Systems and pays Porous the termination fee
provided in Section 14.2. Porous will be deemed to have
materially breached this Agreement if Porous fails to deliver
the number of Filters required by WTC pursuant to Sections 1.1
and 1.2, breaches its obligations under Article II or VII or
breaches its delivery obligations under Section 5.1.
(C) Termination pursuant to Sections 10.2, 14.3 or 14.4.
11.2 Remedies on Breach. If this Agreement is terminated, the non-breaching
party shall have all legal and equitable remedies available to it,
including, but not limited to, the right to recover damages for breach
of this Agreement (including reasonable attorneys' and accountants'
fees and interest at a commercially reasonable rate).
11.3 Guarantee. In the event of a termination of this Agreement pursuant to
Section 11.1(A), the Guarantee shall remain in full force and effect
through the Term and Porous shall have the right, in addition to all
other legal and equitable rights available to it, to collect the full
amount guaranteed thereby to the extent not already received by Porous.
11.4 Survival. Notwithstanding the expiration or termination of this
Agreement, the indemnification obligations under Sections 8.2, 10.1 and
13.1 will continue until all applicable statutes of limitations have
run. Porous's obligations under Section 2.2 and WTC's obligations under
Section 12.1 will survive the expiration or termination of this
Agreement.
ARTICLE XII
CONFIDENTIALITY AND DEVELOPMENT
12.1 Porous Information. Other than the WTC Information, all information,
drawings, research materials, equipment and apparatus designs and other
confidential documents disclosed or delivered to WTC by Porous pursuant
to this Agreement, as well as the terms of this Agreement and all
knowledge of the business relationship between WTC and Porous
(collectively, the "Porous Information"), shall be treated by WTC as
confidential information of Porous and WTC must use all reasonable
efforts to prevent the disclosure of the Porous Information to third
parties by WTC, its officers and employees, without the prior written
consent of Porous.
12.2 No WTC Obligation. Notwithstanding the provisions of Section 12.1, WTC
is not under any obligation to preserve the confidentiality of, or be
restricted in the use of, any information which
(A) becomes generally available to the public other than as a
result of a disclosure by WTC or WTC's directors, officers,
employees, agents or advisors, or
(B) becomes available to WTC on a non-confidential basis from a
source other than Porous, its officers, employees, agents, or
its advisors, provided that such source is not bound by a
confidentiality agreement with or other obligation of secrecy
to Porous or another party.
ARTICLE XIII
[INTENTIONALLY DELETED]
ARTICLE XIV
ASSIGNMENT; SALE
14.1 Limitation on Assignments. This Agreement and the rights and
obligations hereunder are personal to the parties hereto and may not be
assigned in whole or in part by either party without the prior written
consent of the other, provided that either party may assign this
Agreement in connection with a sale of all or substantially all of its
assets (a "Business Sale") if the assignee assumes this Agreement by
means of a written instrument delivered to the other party to this
Agreement. No such assignment shall relieve the assigning party of its
obligations under this Agreement to the other party to the Agreement.
14.2 Termination Fee. In the event of a Business Sales by WTC, WTC shall
have the right to terminate this Agreement by payment to Porous of a
termination fee (the "Termination Fee") in an amount calculated jointly
and in good faith by WTC and Porous as follows:
(A) Monthly Earnings. "Monthly Gross Earnings" means (i) Net Gross
of Porous for the 12- month period ending on the last day of
the month immediately preceding the Business Sale, divided by
(ii) twelve.
(B) Gross Earnings. "Gross Earnings" means, for any period of
calculation, Porous's gross sales, less returns and discounts,
of Filters sold to WTC, less Porous's cost of goods sold, less
the direct labor and production expenses associated with those
gross sales (including, without limitation, the depreciation
and amortization expense associated with the production of the
Filters), all as determined in accordance with generally
accepted accounting principals (consistently applied with
prior periods) for such period.
(C) Termination Fee. The Termination Fee must equal the present
value (based on an annual discount rate equal to one-half of
one percent above the prime or reference rate of First Bank
National Association then in effect) of the Monthly Gross
Earnings, under the assumption that Porous would have earned
the Monthly Gross Earnings in each month remaining in the
Term, including the month in which the Business Sale is
closed.
14.3 Termination. Upon payment of the Termination Fee, this Agreement will
immediately terminate, neither WTC nor Porous will have any further
obligations or rights under this Agreement, and Porous shall return to
WTC and make no further use of the WTC Information.
14.4 Porous. Porous must not assign its rights or delegate its duties under
this Agreement without WTC's prior written consent, which consent may
not be unreasonably withheld. Porous must not permit the assignment of
any of its rights or the delegation of any of its obligations under
this Agreement by operation of law or otherwise. If Porous breaches
this Section 14.4, this Agreement will immediately terminate and
neither WTC nor Porous will have any further rights or obligations
under this Agreement.
14.5 Generally. For purposes of this Article XIV, an assignment of rights
and a delegation of duties includes the sale or transfer of all or a
controlling quantity of the stock of one of the parties or the sale of
that party's entire business or substantially all of that party's
assets.
ARTICLE XV
DISSOLUTION, BANKRUPTCY, INSOLVENCY
If WTC (i) is dissolved or becomes insolvent (as that term is defined
in the United States Bankruptcy Code), (ii) voluntarily commences, or there is
commenced involuntarily against WTC (and such action remains undismissed for a
period of 60 days), a case under the United States Bankruptcy Code, or (iii)
ceases to manufacture the Systems, then (A) Porous will have the right to
manufacture and market the Systems throughout the world, and WTC must grant
Porous a perpetual, non-exclusive, royalty-free license to manufacture and
market the Systems upon any such event and (B) Porous may use the WTC
Information solely for its own use and may disclose WTC Information to those
Porous employees and agents for whom the WTC Information is essential for the
production and marketing of the Systems by Porous and (C) Porous will have no
further obligations under Section 2.2(C).
ARTICLE XVI
MISCELLANEOUS
16.1 Notices. All notices required or permitted to be given under this
Agreement must be in writing and are deemed given when delivered in
person, or three business days after being deposited in the United
States mail, postage prepaid, registered or certified, addressed as set
forth below, or on the next business day after being deposited with a
nationally- recognized overnight courier service addressed as set forth
below, or upon dispatch if sent by facsimile with telephonic
confirmation of receipt from the intended recipient to the telecopy
number set forth below:
(A) If to WTC, addressed to:
WTC Industries, Inc.
00000 - 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Xx.
Facsimile No. (000) 000-0000
with a copy to:
Xxxxxxxxx & Xxxxxx P.L.L.P.
00 Xxxxx 0xx Xxxxxx
0000 XXX Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxx
Facsimile No. (000) 000-0000
(B) To Porous, addressed to:
Porous Media Corporation
0000 Xxxxxxx Xxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx/Xxxxxxx Xxxxxxxx
Facsimile No. (000) 000-0000
with a copy to:
Robins, Xxxxxx Xxxxxx & Ciresi
0000 XxXxxxx Xxxxx
000 XxXxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
Facsimile No. (000) 000-0000
or to such other address or to such other person as WTC or Porous shall
have last designated by notice given in accordance with the provisions
of this Section 16.1, except that any notice of a change of address
will not be deemed effective until actually received by the party to
whom notice is directed.
16.2 Waiver. The failure in any one or more instances of a party to insist
upon performance of any of the terms, covenants or conditions of this
Agreement, to exercise any right or privilege conferred in this
Agreement, or the waiver by said party of any breach of any of the
terms, covenants or conditions of this Agreement, must not be construed
as a subsequent waiver of any such terms, covenants, conditions, rights
or privileges, but the same will continue and remain in full force and
effect as if no such forbearance or waiver had occurred. No waiver is
effective unless it is in writing and signed by an authorized
representative of the waiving party.
16.3 Successors and Assigns. This Agreement shall apply to, benefit and bind
not only the parties to this Agreement but also their respective
permitted assigns and successors in interest.
16.4 Entire Agreement; Written Modification Only; Severability.
(A) This Agreement constitutes the entire agreement between Porous
and WTC concerning the subject matter hereof. This Agreement
supersedes all prior communications, statements,
representations and understandings, whether oral or written,
on the subject matter hereof, including, but not limited to,
that certain Agreement between Porous and WTC Industries, Inc.
dated April 21, 1994. Porous shall not be bound by any
additional or different terms in WTC's purchase order unless
specifically agreed to by Porous and WTC.
(B) This Agreement may only be amended or modified by a writing
signed by a duly authorized officer of WTC and Porous and that
writing states expressly the parties' intent to modify this
Agreement. Neither prior course of dealing, trade usage nor
performance is a modification except as expressed in an
appropriate signed writing.
(C) The provisions of this Agreement are intended to be
interpreted and construed in a manner so as to make such
provisions valid, binding and enforceable. In the event any
provision of this Agreement is determined to be partially or
wholly invalid, illegal or unenforceable, then (i) such
provision shall be deemed to be modified or restricted to the
extent necessary to make such provision valid, binding and
enforceable; or (ii) if such provision cannot be modified or
restricted in a manner so as to make such provision valid,
binding and enforceable, then such provision shall be deemed
to be excised from this Agreement and the validity, binding
effect and enforceability of the remaining provisions of this
Agreement shall not be affected or impaired in any manner.
16.5 Headings and Captions. The headings and captions of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
16.6 Governing Law; Statute of Limitations. This Agreement shall be
construed in accordance with, and governed by, the internal laws of the
State of Minnesota, including, without limitation, the provisions of
the Uniform Commercial Code as adopted by the state of Minnesota,
without regard to that state's provisions for conflict of laws.
Whenever a term defined in the applicable provisions of the Uniform
Commercial Code is used herein, the definition contained in such
provisions shall control. Any action for breach of this Agreement must
be commenced within one (1) year after the cause of action has accrued
unless such provision is not permitted by applicable law.
16.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which is an original and all of which together
constitute but one agreement.
16.8 Non-exclusivity. Except as provided in Article IX, the rights,
remedies, powers and privileges provided in this Agreement are
cumulative and not exclusive and are in addition to any and all rights,
remedies, powers and privileges granted by law, rule, regulation or
instrument.
16.9 Third Parties. Except as provided in Sections 8.1 and 10.1, nothing in
this Agreement, whether expressed or implied, is intended to confer any
rights or remedies under or by reason of this Agreement on any other
person other than the parties to this Agreement and their respective
successors and assigns, nor is anything in this Agreement intended to
relieve or discharge the obligation or liability of any third person to
any party to this Agreement and this Agreement is not intended to and
does not create any third party beneficiary rights whatsoever.
16.10 Force Majeure. In the event that either party to this Agreement is
unable to perform any obligation under this Agreement due to Acts of
God, acts of the public enemy, or other unforseen circumstances beyond
its control, in each case that could not reasonably have been
anticipated and do not involve any negligence on the part of the party
who is thus unable to perform, the performance of such obligation under
this Agreement shall be temporarily excused during the period of such
inability to perform.
ACCEPTED AND AGREED TO:
POROUS MEDIA CORPORATION
By ______________________________________
Its _____________________________________
WTC INDUSTRIES, INC.
By ______________________________________
Its _____________________________________
Schedule 7
PERFORMANCE STANDARDS
When tested according to NSF International Standard 53, the filters
must reduce the number of 3- to 4- micrometer particles from an influent
challenge level of at least 50,000 per milliliter by at least 99.95%.
