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EXHIBIT 10.11
OEM SALES AND PURCHASE AGREEMENT
THIS AGREEMENT, made the ___ day of ____________, 199_ between the WAUKESHA
ENGINE DIVISION OF DRESSER INDUSTRIES, INC., a Delaware corporation,
hereinafter called "WAUKESHA", and ________________, hereinafter called "OEM".
1. PRELIMINARY STATEMENT
WAUKESHA manufactures and sells internal combustion engines. OEM
wishes to purchase from WAUKESHA and WAUKESHA wishes to sell to OEM
AT, VHP, VGF, VSG and Intermediate engines hereinafter called
"WAUKESHA Products". OEM incorporates Waukesha Products into
equipment packages utilized for petroleum market including gas and air
compression hereinafter called "OEM Products".
2. SALES AND PURCHASES
WAUKESHA shall sell to OEM and OEM shall purchase from WAUKESHA,
WAUKESHA Products on the terms stated in this Agreement. Except as
otherwise provided in this Agreement, the terms of sale by WAUKESHA to
OEM shall be WAUKESHA's Standard Terms of Sale, which are included in
the Power Partners Policy Manual.
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If this agreement differs in any way from OEM's order or terms, then
Waukesha's performance is expressly made conditional on OEM's assent
to any terms or conditions of Waukesha. Any terms or conditions which
conflict with Waukesha's terms and conditions shall have no effect.
3. PRICES AND PAYMENT
OEM shall pay WAUKESHA or WAUKESHA Products, the prices mutually
agreed upon from time to time which shall be confirmed in writing and
become a part of this Agreement. Payment by OEM to WAUKESHA for
WAUKESHA Products delivered to OEM shall be due and payable on a net
thirty (30) day basis pursuant to invoices rendered by WAUKESHA to
OEM. Alternative payment terms must be agreed upon in advance of
order placement with WAUKESHA.
4. RIGHTS
WAUKESHA grants OEM the right to purchase and sell such WAUKESHA
Products in conjunction with OEM Products. OEM agrees to purchase,
incorporate and sell WAUKESHA Products where suitable in the
construction of OEM Products.
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5. TRADEMARKS AND LIMITATIONS
Nothing herein shall be construed as granting OEM any license or right
to manufacture any engine parts or service parts for WAUKESHA
Products.
Since OEM will be manufacturing products using the WAUKESHA Products
as components and since OEM will be selling the products it has
manufactured, OEM shall not utilize any trade names of WAUKESHA, nor
any of WAUKESHA's trademarks in promoting the sale of such products
without first obtaining the prior written consent of WAUKESHA, which
consent may be withheld by WAUKESHA in its absolute discretion.
6. RISK
OEM shall purchase WAUKESHA Products, incorporate them into OEM
Products and sell and service the OEM Products at its risk and in its
name and for its account, and shall not undertake any engagements on
behalf of WAUKESHA.
Notwithstanding the foregoing, OEM agrees to consult with WAUKESHA
regarding the potential use for WAUKESHA Products purchased by OEM and
to permit WAUKESHA to veto the right of OEM to sell such engine in a
market or application for which WAUKESHA determines its engine is
unsuitable.
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7. TECHNICAL INFORMATION AND CONFIDENTIALITY
WAUKESHA shall have no obligation to provide OEM with any design or
manufacturing drawings, technical information or know-how for WAUKESHA
Products.
OEM shall have no obligation to provide WAUKESHA with any design or
manufacturing drawings, technical information or know-how for OEM
Products.
Each party shall hold in strict confidence all designs, drawings,
technical information and know-how, that it may at any time receive
from the other party, and will not use or transmit any of same for any
reason or purpose without the prior written consent of the other
party.
This undertaking is valid as long as the Agreement is effective and
for three (3) years following termination of the Agreement.
8. SUPPLY
WAUKESHA shall at all times continue to timely provide Products to OEM
as required by OEM for so long as OEM purchases WAUKESHA Products,
provided; however, that, if WAUKESHA hereafter discontinues the
manufacture, sale and supply of any engine, then WAUKESHA shall have
no continuing
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obligation to supply OEM with such engine. In the event that WAUKESHA
chooses to discontinue to manufacture and supply hereunder, it will
give OEM ample notice of such discontinuance.
9. CHANGES
WAUKESHA reserves the right to make changes to its WAUKESHA Products.
WAUKESHA will normally give OEM notice of such changes. WAUKESHA
shall have no obligation to build WAUKESHA Products of old designs for
OEM.
10. TERM
This Agreement shall continue in effect until terminated by either
party on not less than three (3) months notice to the other party.
11. DELIVERY
WAUKESHA Products shall be delivered FOB Carrier, plant of
manufacture. OEM shall notify WAUKESHA of the carrier selected by OEM
sufficiently in advance of delivery so as to enable WAUKESHA to make
timely delivery. WAUKESHA shall be responsible for the proper packing
of the Products and all
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other steps needed to properly transport the Products to the carrier.
12. WARRANTIES
WAUKESHA's warranty compensation to OEM shall be as per WAUKESHA's
warranty terms included in the Power Partners Policy Manual.
13. INDEMNITY
OEM hereby indemnifies and holds WAUKESHA harmless from and against
all liability, loss, damages, costs and expenses, including reasonable
attorneys' fees, which WAUKESHA may sustain or incur by reason of any
action or omission of OEM.
14. ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between WAUKESHA and
OEM. No amendment shall be valid unless in writing and signed by the
duly authorized representative of the party sought to be bound.
However, the OEM Power Partners manual and other material may be
reasonably modified or changed by Waukesha at any time for any reason.
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15. DISPUTE RESOLUTION
The parties shall attempt to resolve any dispute arising our of or
relating to this Agreement promptly by negotiation between executives.
If the matter has not been resolved within sixty (60) days of a
party's request for negotiation, either party may initiate the
arbitration as hereinafter provided.
Any controversy arising under or in relation to this Agreement shall
be settled by arbitration, before a panel of three arbitrators in the
United States of America in the City of Milwaukee, Wisconsin, in
accordance with the Commercial Arbitration Rules then in force of the
American Arbitration Association. Such arbitration shall be conducted
in English and shall be binding upon the parties, and judgment upon
the award of the arbitrators may be entered in any court having
jurisdiction thereof. The laws of Wisconsin shall apply to this
contract and all matters in relation to it.
WAUKESHA ENGINE DIVISION,
DRESSER INDUSTRIES, INC.
By:
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Title:
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Date:
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OEM:
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By:
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Title:
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Date:
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