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EXHIBIT 10.5
This Agreement is made between:
(1) THE ASSOCIATED OCTEL COMPANY LIMITED having its registered office at
Xxxxx 0, 0xx Xxxxx, Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx Square, London,
W1X 6DT, England ("Seller"); and,
(2) GREAT LAKES CHEMICAL (EUROPE) LIMITED having its registered office at
Xxxxx Avenue, Aycliffe Industrial Estate, Xxxxxx Xxxxxxxx, Xxxxxx, XX0
0XX ("Buyer").
WHEREAS:
A) Buyer is in need of 10% sodium hydroxide solution ("Product") ; and,
B) Seller desires to supply the Product to Buyer; and,
C) Buyer desires to purchase the Product from Seller;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES, THE UNDERTAKINGS OF THE
PARTIES PURSUANT TO THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, IT
IS AGREED AS FOLLOWS:
1. TERM
1.1 The Term of this Agreement shall commence on the Distribution Date (as
defined in the Transfer and Distribution Agreement) and shall continue
until terminated: (i) by either party on or after 31 December 1998,
such termination not to be effective unless preceded by at least six
(6) months written notice given by the party wishing to terminate; or,
(ii) by Buyer upon written notice to Seller that Buyer shall
immediately take or pay for all Product in inventory of Seller and any
Product as to which Seller has irrevocably begun manufacture.
2. QUANTITY
2.1 Buyer will purchase Product from Seller.
2.2 Quantities of Product to be ordered by Buyer are set forth on App. 2.2
of Appendix 3.
2.3 At least three months before the end of each calendar year, Buyer
shall provide a forecast of its anticipated purchases of Product
during the forthcoming calendar year broken down by calendar quarter
and shall update its forecast requirements on a quarterly basis for
the remainder of the year in question.
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2.4 Certain maximum quantities Seller is obligated to provide are set
forth on App. 2.4 of Appendix 3.
2.5 Minimum order quantities are set forth on App. 2.5 of Appendix 3.
3. QUALITY
3.1 All Product supplied shall conform to the specification shown in
Appendix 1 or any other specification substituted by written agreement
between the parties, as determined by the analytical methods shown in
Appendix 1 or by any other analytical methods substituted by written
agreement between the parties ("the Product Specification").
3.2 Each separate lot of Product supplied shall be in a homogenous state
immediately prior to being delivered.
3.3 All Product delivered shall be covered by a certificate of analysis
signed and dated on behalf of the Seller showing the lot number,
weight, order number and quality parameters as defined in Appendix 1.
3.4 Buyer shall, at Buyer's expense, upon giving reasonable notice to
Seller, have the right to inspect Seller's quality assurance
procedures as a quality assurance audit.
3.5 Seller shall not make any change in process, facilities, or raw
materials used to manufacture Product in accordance with ISO
procedures, except with the prior consent of Buyer which shall not be
unreasonably withheld.
4. INSPECTION AND LIABILITY LIMITATION
4.1 Promptly after receiving each shipment of Product, Buyer shall examine
such Product for any damage, defect, non-conformance or shortage.
Buyer shall notify Seller within thirty (30) days of receipt of
Product if the Product does not comply with the Product Specification.
Failure of Buyer to notify Seller within the thirty (30) day period of
non-conformity with such specification shall constitute irrevocable
acceptance of Product by Buyer and shall ban Buyer from making any
claim that such Product is non- conforming in any respect (under any
theory, including without limitation, negligence, strict liability,
contract, warranty or otherwise).
4.2 Except for breaches of the warranties in Section 11, Buyer's exclusive
remedy shall be for damages, and Seller' total liability for any and
all
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losses and damages arising out of any cause whatsoever (whether such
cause be based in contract, negligence, strict liability, other tort
or otherwise) shall in no event exceed the market price as determined
by Seller for the quantity of Product in respect to which such cause
arises, or at Seller's option, the replacement of such Product, and in
no event shall Seller be liable for incidental, consequential or
punitive damages resulting from any such cause.
4.3 If either Party furnishes technical or other advice to the other
Party, whether or not at the request of the Party receiving the
technical or other advice, with respect to processing, further
manufacture, other use or resale of the Products, the Party supplying
the advice shall not be liable for, and the Party receiving the advice
assumes all risk of, such advice and the results which flow from it.
5. PRICES
5.1 The pricing for product supplied shall, unless otherwise agreed in
writing, be the pricing shown in Appendix 2.
5.2 The pricing shown on Appendix 2 does not include value added tax now
or hereafter levied, which shall be for Buyer's account. Neither Party
shall be liable for any tax imposed upon the other Party's income or
privilege of doing business.
6. PURCHASE ORDERS
6.1 Buyer shall purchase Product from Seller as evenly as possible during
the course of each year consistent with its needs. Buyer shall place
written orders on Seller for Product not less than thirty days before
the required delivery date and Seller shall deliver such Product in
accordance with Buyer's orders. Certain maximum quantities Seller
shall be obligated to provide are set forth on App. 6.1 of Appendix 3.
7. DELIVERIES
7.1 Seller shall deliver Product in tank wagons supplied by Seller.
7.2 Delivery shall be made CPT (Incoterms, 1990) Buyer's plant at Amlwch,
Anglesey. Title shall pass upon delivery.
8. INVOICES
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8.1 Invoices shall be submitted to Buyer at Xxxxx Avenue, Aycliffe
Industrial Estate, Xxxxxx Xxxxxxxx, Xxxxxx, XX0 0XX Attn. Accounts
Payable or such other address as Buyer shall notify to Seller.
9. TERMS OF PAYMENT
9.1 Payment shall be made on or before the 30th day of the month following
the month of invoice by electronic transfer to a bank account
nominated in writing by Seller to Buyer.
10. OTHER MATTERS
10.1 Buyer and Seller shall have the rights set forth in App. 10.1 of
Appendix 3.
10.2 Buyer and Seller shall have the rights set forth in App. 10.2 of
Appendix 3.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Seller warrants to Buyer that the manufacture and delivery of Product
will not infringe any patent, trademark, copyright, trade secret or
other intellectual property rights of any third party in any
jurisdiction. Buyer warrants to Seller that use, reuse, further
manufacture, sale or resale of the Product will not infringe the
patent, trademark, copyright, trade secret or other intellectual
property rights of any third party in any jurisdiction. Each Party
(the Indemnifying Party) shall defend, indemnify, and save harmless
the other Party, its Affiliates, and their respective officers,
directors and employees from and against any loss, damage, liability
or expense (including attorneys fees) arising from any breach of
either of the foregoing warranties made by the Indemnifying Party.
12. FORCE MAJEURE
12.1 Seller's failure or inability to make, or Buyer's failure or inability
to take, any delivery or deliveries when due, or the failure or
inability of either party to effect timely performance of any other
obligation required of it hereunder, if caused by a "force majeure" as
hereinafter defined, shall not constitute a default hereunder
or subject the party affected by the force majeure to any liability
to the other; provided, however, that such excuse for the force
majeure shall only apply if (a) the party so affected shall promptly
notify the other of the existence thereof, of its expected duration,
and of the estimated effect thereof upon its ability to perform its
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obligations hereunder, and (b) such party proceeds in a commercially
reasonable manner to overcome the same promptly. Such party shall
promptly notify the other party when such force majeure circumstance
has ceased to affect its ability to perform its obligations hereunder.
The quantity to be delivered hereunder shall be reduced to the extent
of the deliveries omitted for such cause or causes, unless both
parties agree that the total quantity to be delivered hereunder shall
remain unchanged. During a force majeure period, Seller will allocate
its total production of such goods among its various requirements
therefore (e.g., manufacturing and sales) in an equitable manner.
During the time that Seller is unable to make deliveries or otherwise
perform, it shall not be obligated to procure, or to use its best
efforts to procure, any quantity of goods sold hereunder from any
alternate producer or supplier. As used herein, the term "force
majeure" shall mean and include any act of God, nature or the public
enemy; accident; explosion; operational malfunction or interruption;
fire; storm; earthquake; flood; drought; perils of the sea; strikes;
lockouts or labor disputes; riots; sabotage; embargo; war (whether or
not declared and whether or not the United Kingdom is a participant);
legal restriction or limitation or compliance therewith; failure or
delay of transportation; shortage of, or inability to obtain, raw
materials, supplies, equipment, fuel, power, labor, or other
operational necessity; interruption or curtailment of power supply; or
any other circumstance beyond the reasonable control of the party
affected thereby. A party shall not be required to resolve labor
disputes, or disputes with suppliers of raw materials, supplies,
equipment, fuel or power, except in accordance with such party's
business judgment as to its best interest.
13. TERMINATION
13.1 Either Party shall have the right to terminate this Agreement
effective upon written notice to the other Party (the Defaulting
Party) if one or more of the following described events of default
shall occur:
13.1.1 the Defaulting Party shall fail to materially comply with any
term or requirement contained in this Agreement and such
failure to comply shall not have been cured thirty (30) days
after written notice thereof to the Defaulting Party
provided, however, that: (1) in the event a failure to comply
cannot be cured within thirty days, this Agreement shall not
be subject to termination under this provision if the
Defaulting Party commences, and thereafter diligently pursues,
a cure within the thirty day period; and, (2) no advance
written notice or opportunity to cure shall be necessary in
order to terminate this Agreement pursuant to Sections 13.1.2
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through 13.1.7; or
13.1.2 the filing by the Defaulting Party of a voluntary petition in
bankruptcy or a voluntary petition or answer seeking
reorganization, rearrangement or readjustment of its debts or
for any other relief under the bankruptcy or insolvency act or
law of any jurisdiction, now or hereafter existing, or any
other agreement by the Defaulting Party indicating consent to,
approval or acquiescence in, any such petition or proceeding;
or
13.1.3 the application by the Defaulting Party or the consent or
acquiescence of the Defaulting Party in the appointment of a
receiver or trustee for all or a substantial part of any of its
properties; or
13.1.4 the making by the Defaulting Party of a general assignment for
the benefit of creditors; or
13.1.5 the inability of the Defaulting Party or the admission of the
Defaulting Party in writing of its inability to pay its debts
as they mature; or
13.1.6 the filing of an involuntary petition against the Defaulting
Party seeking reorganization, rearrangement or readjustment of
its debts, or for any other relief under the bankruptcy or
insolvency act or law of any jurisdiction, now or hereafter
existing, or the involuntary appointment of a receiver or
trustee of the Defaulting Party for all or a substantial part
of its property or assets, or the issuance of a warrant of
attachment or execution of similar process against a
substantial part of the property of the Defaulting Party and
the continuance of such for sixty (60) days undismissed or
undischarged; provided, however, that in the event of an
appointment of a receiver or trustee, this Agreement shall not
terminate if the receiver or trustee agrees to assume the
Defaulting Party's liabilities and obligations under this
Agreement; or
13.1.7 the assignment by the Defaulting Party of this Agreement or any
of its rights under this Agreement in violation of Paragraph 17
(ASSIGNMENTS).
13.2 Rights Surviving Termination. The termination of this Agreement shall
not affect the rights and liabilities of either Party arising during
the period for which it is effective or release either from the
obligation to pay arising
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under this Agreement during its effective period.
14. ENTIRE AGREEMENT, MODIFICATION
14.1 This Agreement constitutes the entire understanding between the
parties and there are no other agreements or understandings, written
or oral, between the parties with respect to the subject matter of
this Agreement.
14.2 The Parties contemplate that, from time to time during the term of
this Agreement, either or both of the Parties will utilize various
documents in order to conveniently facilitate the purchase and
delivery of Product, and that these documents (including, but not
limited to, purchase orders, delivery orders and negotiable and
non-negotiable instruments of title) may include terms and conditions
different from those of this Agreement. The Parties agree that these
documents shall not modify the terms and conditions of this Agreement,
and that terms and conditions contained in such documents which
purport to modify this Agreement shall have no force or effect. The
Parties also contemplate that there will be routine dealings between
their employees. Each party acknowledges that the employees of the
other party have no authority to waive, modify or interpret this
Agreement. Each party agrees that statements, representations,
warranties and promises of the other party's employees supplemental
to, or varying from, the terms and conditions of this Agreement shall
not be binding and each party shall conduct its business without
reliance upon or regard to such statements, representations,
warranties and promises.
14.3 This Agreement may be modified only by a written document signed by
both of the Parties which specifically references this Section 14 and
this subsection 14.3 cannot be orally waived or modified.
15. WAIVER
15.1 No waiver, acquiescence or forbearance by either party hereto of any
breach or default this Agreement, and no course of conduct or dealings
between the parties which varies from the terms and conditions of this
Agreement, shall: (i) be deemed a waiver as to any subsequent and/or
similar breach or default by either party; or, (ii) constitute or be
deemed a modification of this Agreement; or, (iii) affect the rights
or obligations of the parties under this Agreement in any way.
16. INDEMNITY
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16.1 Buyer shall defend, indemnify and hold Seller, its Affiliates and
their respective officers, employees, affiliates, successors or
assigns, harmless from and against any and all suits, claims, losses,
liabilities, demands, judgments, costs, fines, penalties or expenses
(including, without limitation, attorneys' fees) with respect to
bodily injury, personal injury, property damage or economic injury
sustained by any person and resulting or arising, or allegedly
resulting or arising, directly or indirectly, from the sale,
transportation, possession, processing, treatment, storage, disposal,
further manufacture, use, other reuse or resale of the Product
delivered to Buyer by Seller or any other product incorporating the
Product. This provision shall survive expiration or other termination
of this Agreement and shall be unlimited in amount.
17. ASSIGNABILITY
17.1 Neither party shall without the consent in writing of the other party
assign any of its rights or obligations arising from this agreement,
such consent not to be unreasonably withheld or delayed.
18. NOTICES
18.1 Notices and other communications sent by either party to the other in
pursuance of the provisions of this agreement shall be in writing and
shall be sent to the recipient at the address shown above as its
registered office or at such other address as either party may notify
the other in writing is to be substituted as the address of the
notifying party. Where Seller is the recipient, a copy shall also be
sent to Seller at X.X. Xxx 00, Xxx Xxxxx Xxxx, Xxxxxxxxx Port, South
Wirral, L65 4HF, England, to the attention of both the Purchasing
Manager and the Company Secretary.
The copy to the Company Secretary shall be sent by facsimile to
151-356-6298 or such other number as may be notified from time to
time.
19. INTERPRETATION
19.1 The headings of the clauses of this agreement have been inserted for
convenience only and they shall not affect its interpretation.
20. DISPUTES
20.1 Any disputes between the parties arising out of or in connection with
this agreement shall be referred to the chief executive officers of
the parties (or their nominees) for resolution. Failing such
resolution, such disputes
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shall be settled by alternative dispute resolution or arbitration, if
both parties agree to such a course, but failing agreement such
disputes shall be settled by the English courts applying English Law.
On behalf of THE ASSOCIATED OCTEL COMPANY LIMITED
Signature: _________________________________
Name: ______________________________________
Position: __________________________________
Date: ______________________________________
On behalf of GREAT LAKES CHEMICAL (EUROPE) LIMITED
Signature: _________________________________
Name: ______________________________________
Position: __________________________________
Date: ______________________________________
