EXHIBIT 10 (ii)
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MEMORANDUM OF AGREEMENT MADE AND ENTERED INTO THIS ELEVENTH DAY OF DECEMBER ONE
THOUSAND NINE HUNDRED AND NINETY-EIGHT.
B E T W E E N: IM(2) MERCHANDISING AND MANUFACTURING INC., a body politic and
corporate, duly incorporated and having its office at 00
Xxxxxx Xxxx, Xxxx x'Xxxx, Xxxxxx X0X 0X0, herein acting
through and represented by XXXXX XXXXXXXX, its PRESIDENT,
hereunto duly authorized as he so declares,
Hereinafter called the "COMPANY"
OF THE FIRST PART
A N D: THE TIREX CORPORATION CANADA INC., a body politic and
corporate, duly incorporated and having its office at 000 Xx.
Xxxxxxx Xx., Xxxxxxxx, Xxxxxx X0X 0X0. herein acting through
and represented by XXXXXXX X. XXXXX, its PRESIDENT, hereunto
duly authorized as he so declares,
Hereinafter called the "MANUFACTURER"
OF THE SECOND PART
WHEREAS the Company is a corporation whose principals have a certain expertise
in the manufacture of "crumb" rubber welcome mats and related products (the
"Goods");
WHEREAS the Manufacturer is presently a tire processing company and is desirous
of establishing a manufacturing facility with respect to the Goods;
WHEREAS the Company has the sales and marketing expertise to sell the Goods in
North America and elsewhere; and
WHEREAS the Company has entered into a contract for the sale of the Goods to The
Akro Corporation of Canton, Ohio, U.S.A., ("Akro");
WHEREAS the Company has acquired from Akro the exclusive license to use the
molds and tooling described in Exhibit B to the Akro contract (the "Proprietary
Designs");
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WHEREAS the parties are desirous of entering into an agreement whereby the
Manufacturer shall manufacture the Goods for sale to the Company on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, WITNESSETH THAT FOR AND IN CONSIDERATION OF THE PREMISES AND OF
THE MUTUAL PROMISES AND COVENANTS HEREIN CONTAINED THE PARTIES HERETO AGREE AS
FOLLOWS:
ARTICLE 1 PREAMBLE
1.1 The above preamble hereto shall be deemed to form part of this Agreement
as if incorporated in the body hereof.
ARTICLE 2 DEFINITIONS
2.1 "Akro Contract" means the contract entered into between the Company and
Akro on the 26th day of November 1998, a copy of which is annexed hereto
as Appendix I.
2.2 The term "Manufacturer", as used herein shall, unless the context of
this Agreement necessarily requires otherwise, include not only The
Tirex Corporation Canada Inc., but also The Tirex Corporation, a
Delaware corporation with offices at 000 Xx. Xxxxxxx Xx., Xxxxxxxx,
Xxxxxx, X0X 0X0, and all other corporations, partnerships and such other
entities now or in the future control by, under common control with, or
in control of The Tirex Corporation, jointly and severally.
ARTICLE 3 EXCLUSIVE DEALINGS
3.1 The Manufacturer shall manufacture the Goods exclusively for the Company
using the tooling and molds provided to the Manufacturer by the Company
from time to time in accordance with the samples which the Manufacturer
has heretofore delivered to the Company and which the Company
acknowledges as having been accepted and approved and, in accordance
with such other samples as may be approved by the Company from time to
time in the future.
3.2 The Company shall purchase exclusively from the Manufacturer such
quantities of the Goods as shall satisfy all of the Company's
requirements for resale during the term of this Agreement both with
respect to the Akro Contract as well as all other customers of the
Company. The following sales goals are estimates for planning purposes
only and reflect the quantities which the Company anticipates that it
will be obliged to deliver to Akro in accordance with the terms of the
Akro Contract and reflecting the prices which the Company shall be
charging to Akro. Such sales goals do not however reflect the Company's
requirements for sales to parties other than Akro and which, for greater
certainty, are hereby declared to be subject to all of the provisions of
this Agreement unless the context hereof clearly indicates the contrary.
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Calendar Year Amount - U.S. Dollars
------------- ---------------------
l999 $1,525,000
2000 3,000,000
2001 5,000,000
2002 7,500,000
2003 7,500,000
The Manufacturer acknowledges that it has taken cognizance of the
provisions of paragraph 5 of the Akro Contract which not only sets forth
the sales goals of such contract, but also the consequences of the
failure to meet a sales goal thereunder. The Manufacturer acknowledges
that if Akro fails to meet a sales goal as set forth in paragraph 5 of
the Akro Contract, and is consequently given an extension of six (6)
months to cure a shortfall, that the sales goals set forth above may be
modified accordingly. It is expressly understood that the failure of the
Manufacturer to meet a sales goal shall not constitute a default by the
Manufacturer under this Agreement.
3.3 The Company's obligations to purchase all of such requirements
exclusively from the Manufacturer shall be subject to the provisions of
Section 5.6 hereof.
3.4 The Manufacturer shall sell exclusively to the Company all of the Goods
manufactured by the Manufacturer during the term of this Agreement.
3.5 The Company shall have the right to determine the quantity of the Goods
which the Manufacturer is obliged to manufacture in virtue of this
Agreement provided that in the event that such quantity exceeds by more
than twenty-five percent (25%) the minimums specified above, the Company
shall give not less than ninety (90) days notice of such additional
requirements. The Manufacturer's obligations to supply such additional
requirements, and all other obligations of the Manufacturer hereunder
relating to delivery schedules and quantities shall be subject to the
fulfilment by the Company in a timely manner of its obligations under
this Section 3.5 and Sections 4.1.1 and 5.5 below.
ARTICLE 4 OBLIGATIONS OF THE COMPANY
4.1 It shall be the obligation of the Company to do all of the following:
4.1.1 to supply, without charge to the Manufacturer, all tooling and
molds which may be required by the Manufacturer in order to
manufacture the Goods, it being understood that such tooling and
molds shall remain the property of the Company. The obligation
of the Company to supply such tooling and molds shall be
fulfilled in a timely manner so as not to impede the ability of
the Manufacturer to fulfil its obligations under Article 3
within the required time frame;
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4.1.2 to actively promote the sale and marketing of the Goods;
4.1.3 to make all decisions in its reasonable discretion conceding
credit to customers of the Goods and to collect all proceeds of
sale;
ARTICLE 5 LICENSE
5.1 The Company hereby grants to the Manufacturer an exclusive license
throughout the term of this Agreement to use, develop and improve any
and all molding equipment based upon the Proprietary Designs but subject
to the rights of Akro with respect thereto.
5.2 The Manufacturer shall pay to the Company a license fee of SEVENTY
THOUSAND CANADIAN DOLLARS ($70,000.00 Canadian), as follows:
5.2.1 The sum of THIRTY THOUSAND DOLLARS ($30,000.00) upon the
execution of this Agreement; and
5.2.2 A further sum of FORTY THOUSAND DOLLARS ($40,000.00) which shall
be paid by the Manufacturer on behalf of the Company directly to
the Company's employee Xxxx Xxxxxxxx, at the rate of Ten
Thousand Dollars ($10,000.00) per month in advance, commencing
with the date of the signature of this Agreement, it being
understood that the said Xxxx Xxxxxxxx shall assist the
Manufacturer in setting up its manufacturing facility and that
all of the expenses of the said Xxxx Xxxxxxxx during such period
shall be paid by the Manufacturer as well, on a reasonable
basis.
5.3 It shall be the obligation of the Manufacturer to manufacture the Goods
in a timely manner in accordance with the standards necessary and
desirable for the purposes of this Agreement and in such quantities as
shall be required to meet the demand of the Company's customers in the
Territory (unless such quantities exceed the manufacturing capacity of
the Manufacturer). The Goods shall be manufactured in accordance with
the samples annexed hereto as Appendix II;
5.4 The Manufacturer acknowledges that its manufacturing capacity is, or
shortly shall be sufficient to meet the Company's delivery obligations
under the Akro Contract and more particularly the delivery schedule set
forth in Exhibit D thereof. Furthermore, the Manufacturer undertakes
that it will be in a position to supply ten thousand (10,000) mats per
week on or before February 15th, 1999, and twenty thousand (20,000) mats
per week by March 15th, 1999. Failure by the Manufacturer to comply with
such undertaking shall entitle the Company to demand a penalty of Twenty
Thousand Dollars ($20,000.00) for each week of delay up to a maximum of
four (4) weeks. Should such delay exceed four (4) weeks, the Company
shall have the option to terminate this Agreement by simple notice to
the Manufacturer.
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5.5 The Manufacturer shall have the right to cause its manufacturing
obligations to be performed, in part, by third parties, with the consent
of the Company, which shall not be unreasonably withheld, and subject to
the proviso that the Manufacturer and such third party shall be jointly
and severally liable for the fulfilment of all obligations hereunder
relating to the manufacture of the Goods to the extent that the
manufacture of such Goods is carried out by such third party, and with
the future proviso that the Company shall receive a written undertaking
from the Manufacturer and such third party confirming the foregoing at
the time that such consent is requested. The obligations of the Company
to provide tooling and molds to the Manufacturer shall apply as well to
any such third party.
5.6 In the event that the Manufacturer is unable to supply any additional
needs of the Company then the Company within the time frame of this
Agreement and\or within the time frame of the Akro Contract, the Company
shall be free to purchase Goods elsewhere to the extent of the
shortfall.
5.7 It shall be the responsibility of the Manufacturer to pay the cost of
purchasing and\or leasing all of the machinery or equipment required for
the manufacture of the Goods other than tooling and molds referred to
above, it being understood that such machinery and\or equipment shall be
and remain the property of the Manufacturer or the lessor of same.
ARTICLE 6 TERM OF AGREEMENT
6.1 The term of this Agreement shall commence as at January 1st, 1999, and
shall continue for a period of FIVE (5) YEARS, unless terminated earlier
in accordance with the provisions hereof. The Company shall have the
option to extend the term of this Agreement for a further period of
three (3) years by giving notice of such extension to the Manufacturer
not later than December 31st, 2002, and a further option to extend this
Agreement for a subsequent term of three (3) years by giving notice to
the Manufacturer not later than December 31st, 2005.
ARTICLE 7 PRICE AND PAYMENT
7.1 The price payable by the Company for the Goods shall consist of the
aggregate of:
7.1.1 the manufacturing costs ("Manufacturing Costs") of the Goods, as
indicated in Appendix I hereof. Said Manufacturing Costs have
been agreed by the parties and include the overhead of the
Manufacturer which is comprised only of the items listed in
Appendix II hereof; plus
7.1.2 the cost of shipping the Goods to the warehouse of the Company's
customer including, if applicable, duties, brokerage fees and
charges of like nature ("Shipping Costs"); plus
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7.1.3 forty-five percent (45%) of the profits as hereinafter defined.
The term "profits" shall mean the resale price charged by the
Company to its customers as set forth in the Company's invoices
(excluding sales taxes, value added taxes, and other items of
like nature which are charged to such customers and remitted by
the Company to the taxing authorities); minus the Manufacturing
Costs and Shipping Costs of the Goods in question.
Such price shall be paid by the Company to the Manufacturer in
accordance with the provisions of Section 7.3 below. For purposes of
this Agreement the term "profits" shall mean the total resale price
charged by the Company to Akro under the terms of the Akro Contract and
as set forth in the Company's invoices to Akro minus the Manufacturing
Costs, which Manufacturing Costs shall be calculated as follows:
7.1.2.1 The costs listed on Appendix I shall remain in force for
a period of twelve (12) months from the date of
commencement of this Agreement. Thereafter, in the event
that the Manufacturer is desirous of increasing the
amounts specified in Appendix I, it may only do so upon
at least one hundred and eighty (180) days notice to the
Company. Any such increase in cost must be based upon an
actual increase in the out-of- pocket costs to the
Manufacturer of producing the Goods, including actual
increases in the out-of-pocket costs to the Manufacturer
of only those items of overhead list on Appendix IV
hereof and no others, and any new costs so determined
shall again remain in force for a period of at least
twelve (12) months. The Manufacturer reserves the right
to negotiate with the Company in good faith to increase
its prices for other legitimate reasons, it being
understood however that no such increase shall be
effected unless it can be passed on to the customers of
the Company, with a reasonable markup, so that the
Company participates in the profits derived from such
increase.
7.2 In the event of a dispute concerning the justification of a price
increase the matter shall be submitted to arbitration by a single
arbitrator who is a partner in a major international accounting firm
which has an office in Montreal and to be selected by agreement of the
parties, and failing such agreement by a Judge of the Superior Court for
the District of Montreal.
7.3 The Company shall provide to the Manufacturer a copy of each purchase
order which the Company receives from its customers ("Customer Purchase
Order"), and upon which each purchase order from the Company to the
Manufacturer
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("IM(2) Purchase Order") is based. The Manufacturer shall invoice the
Company for the price of the Goods calculated in the manner set forth
above in Section 7.1. In calculating the Profits portion of such
purchase price foreign currency received by the Company shall be valued
in Canadian dollars based upon the actual conversion of such dollars
made by the Company at its bank in Montreal at the time that the Company
receives payment of such foreign currency, or if no such conversion is
made by the Company, at the value which the Company would have received
if such funds had been converted to Canadian dollars on the date that
the Company received payment. The terms of payment of the IM(2) Purchase
Order shall be one percent (1%),(ten [10] days net), forty-five (45)
days from delivery to customers warehouse.
7.4 Losses resulting from bad debts shall be absorbed by the Company and
shall not be taken into account in the calculation of profits.
ARTICLE 8 DELIVERY
8.1 All Goods shall be delivered by the Manufacturer in accordance with
whatever delivery schedule has been mutually agreed upon by the parties
in writing unless caused by default of the Company to meet its
obligations under Section 3.5 hereof, if the Manufacturer fails to
deliver the Goods in accordance with the delivery schedule the Company
shall be entitled to:
8.1.1 partially cancel the applicable order as to the affected Goods
and require Manufacturer to deliver all available Goods; or
8.1.2 cancel the applicable order for default; or
8.1.3 maintain the applicable order, accept late delivery and recover
amounts paid by the Company in connection with the failed
transaction as a direct consequence of such failure.
ARTICLE 9 ORDERS
9.1 Subject to the terms and conditions hereof, Manufacturer shall accept
any order for Goods from the Company or other party which, by mutual
agreement of the parties hereto, is entitled to order Goods hereunder.
Any terms and conditions in any such orders that are inconsistent with
or in addition to the terms and conditions hereof shall not be binding
upon Manufacturer unless Manufacturer expressly accepts them in writing.
Manufacturer is not authorized to ship any Goods unless and until an
order has been issued therefor. Subject to the terms and conditions of
Section 7.1.2.1 above, any preparation or work performed by Manufacturer
prior to receipt of an order shall be at Manufacturer's expense.
ARTICLE 10 PACKING, MARKING AND CUSTOM INVOICES
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10.1 The packaging for the Goods shall conspicuously state that the Goods
have been designed by the Company and they shall bear such trademarks as
are designated by the Company in a manner, style, size and colour
determined and specified by the Company in writing. Any and all other
notations or markings of any kind shall be subject to the prior written
approval of the Company bearing in mind the provisions of the Akro
Contract. Subject to the foregoing, the Manufacturer shall not be
identified in any respect on the Goods, or on any packaging materials
associated therewith. All shipments shall be suitably packed, marked and
shipped in accordance with all requirements stated herein, all
applicable laws, regulations, codes and other governmental requirements
and all requirements of the applicable carrier. A separate delivery
sheet on each local shipment is required, regardless of whether
deliveries of two or more shipments are made at the same time. Packing
slips must accompany each shipment and Manufacturer shall provide
duplicate invoices for each shipment. Subject to the terms and
conditions of Section 7.1.2.1 Manufacturer shall bear the cost of all
boxing, packing and crating. Each shipping container shall be marked,
and each packing slip and invoice shall be written in the English
language, all in accordance with the Company's written instructions.
Prior to any exportation, one copy of the required customs invoice shall
be enclosed in a waterproof envelope or wrapper clearly marked "customs
invoice" and securely attached to the outside of the shipping container
except as specifically authorized by the Company in writing,
Manufacturer shall not make any use of any trade names, trademarks or
any other proprietary information materials or rights of the Company.
ARTICLE 11 INSPECTION
11.1 The Company shall be allowed (but not obligated) to inspect the Goods
and reject any portion thereof that fails to conform to this Agreement.
As reasonably requested by the Company, the Company shall also be
entitled (but not obligated) to visit Manufacturer's premises during
ordinary business hours to conduct inspections of the Goods and observe
Manufacturer's testing of the Goods. The parties acknowledge and agree
that any inspection of the Goods by the Company is not likely to result
in any determination as to whether the Goods conform to the requirements
of this Agreement (i.e. that they are consistent with the samples
provided to the Company). The Company shall have all remedies provided
by applicable law in connection with any nonconforming Goods.
ARTICLE 12 WARRANTY
12.1 Manufacturer warrants that the Goods as delivered shall conform to all
samples supplied by Manufacturer, will not degrade in any material
respect, and will be merchantable and fit for their intended purposes
and comply with all applicable laws, regulations and standards. The
warranties shall remain in effect as provided in Exhibit F of the Akro
Contract. There are no other warranties of any kind not specified or
referenced herein or in separate written agreement of the parties.
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12.2 In the event any of the Goods fail at any time during the applicable
warranty period to meet the foregoing requirements, the Company may, at
its option:
12.2.1 require Manufacturer at its own expense to make such adjustments
or replacements as may be necessary to meet the reasonable
requirements of the Company's customer;
12.2.2 elect to accept or retain any such Goods, subject to appropriate
adjustment to the purchase price of the goods;
12.2.3 pursue any other remedy provided by applicable law.
In any event, Manufacturer shall promptly reimburse the Company for any
and all direct loss, damage and expenses incurred as a result of the
delivery and\or use of such nonconforming Goods.
ARTICLE 13 TRADE MARKS AND DESIGNS
13.1 All trade marks and designs used by the Company in the description of
the Goods shall remain the property of the Company or its distributors,
other than the xxxx "Rutex" which is and shall remain the property of
the Manufacturer.
ARTICLE 14 CONFIDENTIALITY
14.1 Each of the parties hereto agree to keep all of the terms of the present
Agreement confidential unless it is exempted from so doing in writing by
the other party except to the extent required by the U.S. Securities
laws, Manufacturer shall not advertise or publicize the fact that the
Company is using Manufacturer's services, or has contracted for the
purchase of the Goods from Manufacturer without first obtaining the
Company's consent, which shall not be unreasonably withheld. Any
know-how, information or materials which either party has heretofore
disclosed or hereafter discloses to the other shall at all times be
deemed the confidential and proprietary information of the party
disclosing such matter and shall be kept confidential by the other
party, and shall not be used or disclosed by the other party for any
purpose other than the performance of such other party's obligation
pursuant to this Agreement. Confidential and proprietary information
shall not be deemed to include know-how, information or materials which
are generally available to the public at the time of disclosure.
ARTICLE 15 TOOLING
15.1 At all times full and complete ownership rights relative to the tooling
referenced or described in Exhibit "B" (the "Tooling"), shall be in
accordance with the provisions of the Akro Contract. No ownership rights
are conferred upon Manufacturer by virtue of this Agreement or the
arrangements referred to herein. Manufacturer shall not encumber the
Company's property in any way or subject
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the same to any claim, levy, attachment, lien or other proceeding or
process affecting, limiting or challenging in any way the Company's
ownership rights except in the event of non-payment of the Company's
obligations towards the Manufacturer.
15.2 Manufacturer agrees that it shall not use the Tooling for any purpose
other than those directly relating to the manufacture and supply of the
Goods for the Company, without the prior written consent of the Company.
15.3 Subject to the terms and conditions of Section 15.1 above, upon
termination of this Agreement, including the expiration of any
applicable notice period, Manufacturer shall allow the Company or its
authorized contractor full access to Manufacturer's facilities for
purpose of disassembling and removing the Tooling.
ARTICLE 16 TERMINATION
16.1 Either party may terminate this Agreement at any time for cause provided
that the terminating party notifies the other party of the cause and
gives such party sixty (60) days in which to effect a cure. If such cure
is not reasonably acceptable to the terminating party, or if such cure
is not effected within the aforementioned sixty (60) day period, then
the termination shall be effective immediately following such sixty (60)
day period. Termination for cause shall include but not be limited to
the following causes:
16.1.1 any material breach of this Agreement by the non-terminating
party; or
16.1.2 the filing of a bankruptcy petition by or against the non-
terminating party, the appointment or application for a
receiver, examiner or custodian with respect to the non-
terminating party's assets and liabilities, or the making of an
assignment for the benefit of creditors or other agreement
relating to the liquidation of all or substantially all of the
non- terminating party's assets; or
16.1.3 the making of any material misrepresentation by the non-
terminating party to the other party; or
16.1.4 the persistent and unjustified failure of the Manufacturer to
deliver Goods in accordance with any agreed upon delivery
schedule;
16.1.5 the parties failing to agree on price, after good faith
negotiations, of all styles within the product line comprising
the Goods;
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16.2 In addition, the Company, subject to the provisions of Section 3.5, may
terminate any order or any part of any order in the event that:
16.2.1 the Goods comprised therein are defective or otherwise do not
conform to this Agreement; or
16.2.2 Manufacturer fails to deliver any Goods in accordance with any
agreed upon delivery schedule.
Further, the Company may terminate its distribution of any style in the
product line on thirty (30) days prior notice to Manufacturer if the
Company reasonably determines that its profits margin or sales
applicable to such styles in the product line are not adequate. Any such
termination of a style by the Company shall not give rise to any
remedies for the Manufacturer or otherwise affect any rights of the
parties under this Agreement.
ARTICLE 17 PRODUCT WARNINGS
17.1 Manufacturer agrees to supply the Company with written MSDS date and
applicable product warnings applicable to the Goods, including, but not
limited to use instructions, guidelines and restrictions.
ARTICLE 18 TECHNICAL ADVICE
18.1 Technical advice furnished by either party in connection with the
obligations of the other party shall be based upon information believed
to be reliable, but neither party shall assume any obligation or
liability for such advice or the results obtained by the other party in
reliance thereon.
ARTICLE 19 INDEMNIFICATION
19.1 Manufacturer hereby agrees to defend, indemnify and hold harmless the
Company, its successors and assigns, from and against any and all
losses, liabilities, claims, actions, judgments, damages and expenses,
including, without limitation, reasonable attorneys' fees arising out of
or in connection with:
19.1.1 the manufacture or use of the Goods, including, but not limited
to any defective condition of the Goods;
19.1.2 any breach of this Agreement by Manufacturer; or
19.1.3 any act or omission by Manufacturer, its employees, agents or
contractors.
19.2 The Company hereby agrees to defend, indemnify and hold harmless
Manufacturer, its successors and assigns from and against any and all
losses,
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liabilities, claims, actions, judgments, damages and expenses,
including, without limitation, reasonable attorneys' fees arising out of
or in connection with:
19.2.1 the Company's failure to meet its obligations towards its
customers in connection with any breach of this Agreement by the
Company; or
19.2.2 any act or omission by the Company, its employees, agents or
contractors; or
19.2.3 claims of design or patent infringement on molds or tooling.
ARTICLE 20 REMEDIES
20.1 In the event of any failure of performance hereunder, the non-defaulting
party shall have all rights and remedies contained herein, together with
any and all rights and remedies provided at law and/or in equity.
ARTICLE 21 NOTICE
21.1 Except as otherwise expressly set forth in this Agreement, all notices
required to be given or delivered hereunder shall be in writing and
shall be deemed to have been given when delivered personally, or by
documented courier delivery service, or sent by facsimile with
confirmation of receipt by the addressee. Notices shall be sent to the
addresses listed below, unless and to the extent that other addresses
are given by the parties in conformance herewith:
If to Manufacturer:
The Tirex Corporation Canada Inc.
000 Xx. Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx X0X 0X0
Attn: Mr. Xxxxx Xxxxx
Fax: (000) 000-0000
If to The Company:
IM(2) Merchandising & Manufacturing Inc.
00 Xxxxxx Xxxx
XXXX X'XXXX XX X0X 0X0
Attn: Mr. Xxxxx Xxxxxxxx
Fax: (000) 000-0000
ARTICLE 22 LANGUAGE
22.1 The parties agree that this Agreement may be translated into other
languages for ease of administration, but that as between the parties
hereto the English version
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of this Agreement shall for all intents and purposes be controlling. Les
parties conviennent et acceptent que le present contrat soit redige dans
la langue anglaise et acceptent qu'il soit traduit en d'autres langues
pour des fins d'administration. Toutefois, entre les parties, la version
anglaise du present contrat doit dans tous les cas avoir preseance.
ARTICLE 23 INSURANCE
23.1 At all times during the term of this agreement, Manufacturer shall
maintain in full force and effect, at Manufacturer's sole cost and
expense, comprehensive public liability insurance coverage and products
liability insurance coverage against claims for personal injury, death
or property damage in limits of not less than $3,000,000.00 per
occurrence for bodily injury and not less than $1,000,000.00 per
occurrence for property damage, or such other minimum limits as the
Company shall reasonably request in writing. All insurance shall be
obtained from companies licensed to do business in the Territory
reasonably acceptable to the Company. All insurance policies shall
require sixty (60) days prior notice to the Company of cancellation or
other material change in coverage. All insurance policies shall name the
Company as an additional insured and Manufacturer shall provide to the
Company a certificate of insurance coverage issued by an applicable
insurance carriers upon request.
ARTICLE 24 RELATIONSHIP OF PARTIES
24.1 The parties acknowledge and agree that they are independently
contracting parties and that no joint venture, partnership or
incorporated association is established hereby. Except as otherwise
expressly stated herein, any costs, liabilities and/or obligations
incurred by a party in connection with the manufacture, sale and
purchase of the Goods shall be borne solely by such party. Neither party
is the agent of the other party and neither party shall take any action
on behalf of the other party in any agency capacity.
ARTICLE 25 COUNTERPARTS
25.1 This Agreement may be executed in one or more counterparts, any one of
which need not contain the signature of more than one party, but all
counterparts taken together shall constitute one and the same Agreement.
ARTICLE 26 SEVERABILITY WAIVER
26.1 Whenever possible each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable law. If
any provision of this Agreement is held to be prohibited or invalid
under applicable law by a court of competent jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. No delay by either party in
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exercising any right or remedy under this Agreement shall operate as a
waiver thereof nor will any single or partial exercise of any right or
remedy preclude any other or further exercise thereof or the exercise of
any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies
provided by law.
26.2
26.3
26.4
26.5
26.6
26.7
26.8
ARTICLE 27 SURVIVAL
27.1 The provisions of Section hereof shall survive any termination of this
Agreement.
ARTICLE 28 GOVERNING LAW
28.1 This Agreement shall be governed by and construed under the internal
laws of the Province of Quebec without giving effect to principles of
conflict of laws thereof.
ARTICLE 29 ENTIRE AGREEMENT
29.1 This Agreement shall constitute the entire agreement of the parties and
supersedes all prior agreements, oral or written, relating to the sale
and purchase of the Goods on or after the effective date hereof. The
parties agree to be bound by the terms and conditions hereof and all
specifications and documents referenced herein or attached hereto.
Except as expressly provided herein, this Agreement may be modified only
in writing signed by both parties. Any attempted acknowledgment of an
order containing terms and conditions inconsistent with or in addition
to the terms and conditions hereof shall not be binding upon either
party. No waiver of any of the terms or conditions hereby shall be
effective unless made in writing signed by both parties.
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IN WITNESS WHEREOF THE PARTIES HERETO HAVE EXECUTED AND DELIVERED THIS AGREEMENT
AS OF THE DATE FIRST ABOVE WRITTEN.
IM(2) MERCHANDISING &
MANUFACTURING INC.
By/s/ Xxxxx Xxxxxxxx
---------------------------------
Title President
THE TIREX CORPORATION CANADA INC.
By/s/ Xxxxxxx X. Xxxxx
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Title President
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