This Agreement made the THIRTIETH (30) day of JULY 1984, by and
between ALENAX CORPORATION of 00 Xxxxxxxxxxx Xxxx, Xxxxxxxxx. Xxx Xxxx
00000, X.X.X. (ALENAX), and XXX XXXX INDUSTRY CO., LTD. of
399 Min Sheng Road, TAYA TAICHUNG, Taiwan, R.O.C. (XXX XXXX).
WHEREAS, XXX XXXX is engaged in the manufacture and sale of bicycle parts
and other specially designed and engineered machine products, and
WHEREAS, ALENAX is engaged in the development and sale of bicycles and
the parties wish to enter into an agreement in which XXX XXXX will supply
certain bicycle parts for ALENAX as specified in Exhibit 1:
NOW IN CONSIDERATION of the promises hereinafter expressed, the parties
do agree as follows:
1. Sale of Goods - XXX XXXX is to manufacture and se11 to ALENAX,
and ALENAX shall purchase from them bicycle parts, in the quantities
according to the production schedule listed upon the attached Exhibit 2.
XXX XXXX acknowledges that the parts it will manufacture are essential
to the assembly of the bicycle and that unless manufactured in strict
conformity with the plans and specifications, and delivered promptly
according to the scheduled delivery dates, ALENAX may be unable not
only to fulfill its orders, but also may incur liability from other
suppliers for failure to meet their schedules, and from its dealers
for failure to meet their orders and schedules). XXX XXXX agrees to
strictly comply with its obligations to prevent such liability and
indemnify ALENAX for any liability incurred.
2. Price - The price shall be as specified for the quantities on
Exhibit 2. The price shall be paid in U.S. Dollars by irrevocable
letters of credit supplied by ALENAX'S bank, or by such other method
as the parties may agree upon. The letters of credit will cover
shipments pursuant to purchase orders for one season, three (3)
months. It is recognized that the quantities listed in Exhibit 2
are forecasts only and a commitment to purchase shall only be made
by purchase order.
The prices as quoted shall remain fixed for a period of twelve
(12) months from the date of this Agreement. Thereafter, XXX XXXX
may adjust the price by so notifying ALENAX of the changes at least
sixty (60) days for the hub, transbar and see-saw, and ninety (90)
days for crank and lever before such change will go into effect.
Any orders placed shall be filled at the price in effect at the time
the purchase order is received.
3. Delivery - Delivery shall be made by XXX XXXX in accordance
with the instructions in Exhibit 3. ALENAX may direct shipment of the
parts to various other assemblers or other companies. XXX XXXX agrees
to honor such requests. It shall be XXX XXXX'X duty to arrange for
delivery to such designees and to make arrangements for and payment
of any custom duties that may be due. The parties agree that any
increased shipping costs, because of a change of shipping place based
upon normal commercial rates, actually charged to and paid by XXX XXXX
and any duties that it is obligated to pay shall be billed to ALENAX,
with proof of the amount within thirty (30) days after billing.
4. Manufacturing - XXX XXXX agrees to manufacture the parts in
strict
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conformity with the plans and specifications as submitted, a
copy of which is attached and indexed as Exhibit 4 to this contract.
ALENAX reserves the right to make changes and modifications in said
plans and specifications by telex or cable and XXX XXXX agrees that
in such event it will promptly change its tools so that production
can be continued. It will reserve the right to delay delivery to a
minimum period as discussed and agreed with ALENAX by telex or cable
for each change made by ALENAX. Any price adjustment in the cost of
the product caused by the change in the plans shall be telexed to
ALENAX within three (3) business days of receipt of change order.
The failure to so notify ALENAX shall be an absolute waiver of any
right to increase the price because of such change. ALENAX acknowledges
that if XXX XXXX meets all production schedules, specifications and
quality requirements as established by ALENAX, there will be no liability
to XXX XXXX.
XXX XXXX acknowledges that it has a competent engineering staff and is
fully capable of testing the parts to make sure that its production
strictly conforms to the plans and specifications. Such tests and the
test results will be made in such form and to such degree of accuracy
according to standards of the American Society of Mechanical Engineers
or other similar American professional group as may fully establish the
quality of the product. ALENAX shall have the right to have representatives
present at the testing and during production. Upon request XXX XXXX will
notify ALENAX of the production and testing dates, places and times.
XXX XXXX will certify the test results to ALENAX with the shipments.
XXX XXXX agrees to be solely responsible for any defect of manufacture
insofar as the parts fail to strictly conform to the plans and specifications.
5. Insurance - XXX XXXX agrees to provide product liability insurance
for the parts in amounts shown on the attached Exhibit 5. Such insurance
will be placed with companies authorized to do business and have offices
in United States of America. In the event of a claim arising out of or
relating to the manufacture of parts by XXX XXXX or arising as a result of
this contract, XXX XXXX agrees its insurance carrier's U.S. office is agent
to accept service of process in U.S.A.
6. Title - Title to the goods shall pass to ALENAX upon delivery to
the carrier to ship the goods to the destination. XXX XXXX will be
responsible at its cost for placing insurance in an amount sufficient to
fully protect ALENAX in the event of any loss or damage by the carrier or
for defective delivery. Proof of shipment shall be promptly forwarded to
ALENAX by XXX XXXX.
7. Cancellation - In the event of any substantial breach by XXX XXXX,
in the event that the delivery schedules are not being strictly met, in the
event of a changed policy with respect to exports or otherwise by the
Taiwan government, ALENAX may cancel this Agreement on three (3) days
notice. In such event, any wholly or partially undrawn upon letters of
credit at the date notice is received will be returned. If not otherwise
cancelled1 this Agreement shall extend for a period of one (1) year and be
subject to renewal by the parties thereafter. Unless otherwise indicated,
termination shall not affect orders already placed.
8. Assignment - XXX XXXX shall not assign its rights nor delegate the
performance of its duties under this Agreement without the prior written
consent of ALENAX, which may be withheld without reason.
9. Order Procedure - ALENAX shall order parts by telex and use its
standard purchase order forms to confirm orders to XXX XXXX. XXX XXXX
agrees that it will confirm the orders by telex within forty-eight (48)
hours or within two (2) business days of receipt. Any purchase order not
so confirmed shall be deemed accepted. Each purchase order shall specify
price, quantity, delivery dates, and consignee.
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ALENAX shall give ninety (90) days notice to XXX XXXX in setting schedules
or for changes and amendments to such schedules.
10. Tools & Dies - XXX XXXX will engineer and build the tools and dies
sufficient to manufacture the parts and any modifications thereof. The
tools and dies and the plans and drawings will at all times. belong to
ALENAX. XXX XXXX agrees to keep the tools and dies in a good workable
state of repair and to deliver them to ALENAX upon request. XXX XXXX
acknowledges it has received the sum of sixty thousand ($60,000) United
States Dollars as payment for the full cost of the same. It further agrees
that such sum will include all costs, inclusive of the maintenance that may
thereafter be needed. XXX XXXX will not permit any use of the tools and
dies except for ALENAX approved work, nor will it reveal the tools and
dies nor their plans or designs to any other person or corporation without
the prior written consent of ALENAX.
XXX XXXX further acknowledges that when a total of fifty thousand (50,000)
of the parts described in this contract are ordered, it will apply the sum
of fifty thousand ($50,000) United States Dollars (this excludes ten
thousand ($10,000) United States Dollars paid by XXX XXXX to Matuo for
crank mold] tooling cost to reduce the amounts due on the order of parts,
in lieu of any letter of credit or other payment method.
11. Patents - XXX XXXX acknowledges that the parts and all improvements
or modifications (called Developments) of the parts are deemed property of
ALENAX. In the event a patentable Development in the parts or any equipment
reasonably related to them, is made or designed by XXX XXXX, its servants,
agents, subcontractors, or suppliers then such Development will be the
exclusive property of ALENAX. XXX XXXX agrees, on behalf of itself and its
employees, it will make a full disclosure to ALENAX of any such Development
and to apply for a patent in ALENAX's name (at ALENAX's cost) to fully
assist ALENAX in its efforts to patent the Development anywhere in the
world the world, and to otherwise aid and assist ALENAX in perfecting and
protecting its rights to the Development. It will impose a similar
requirement on those that deal with it.
12. No Oral Statements Are Binding - The parties agree that no requests
to change or modify the product or its design, nor to change, modify or
terminate this Agreement shall be valid unless they be in writing and
signed by the parties or their agents who are authorized in writing to
execute the same.
13. Default - In the event of a failure of XXX XXXX to fully perform,
to manufacture to ALENAX designs, standards or if manufacturing and/or
material defects exist, ALENAX may cancel or suspend the contract upon
two (2) days written notice; it may return the parts for correction at
XXX XXXX'x expense; or it may exercise any other right it may have. In
the event of notification of cancellation or suspension of the contract,
XXX XXXX shall not thereafter draw against any letter of credit supplied
by ALENAX and the letter of credit shall be returned to ALENAX's bank.
XXX XXXX agrees that it will not draw against any such letter of credit
until the ordered goods are actually manufactured appropriate to this
contract, and delivered to the shipper as described in Paragraph 18.
The failure of ALENAX to enforce any right shall not be deemed a waiver
preventing later enforcement of the same, or other right.
14. Contract Period - The contract shall continue for a period of one
(1) year, and may be renewed thereafter by ALENAX. In the event either
party desires to terminate the contract, after the first year, they may
do so by giving the other party ninety (90) days advanced written notice
of intention to terminate. All orders placed up to the actual date of
will be honored.
15. Arbitration - In the event of a dispute of any kind or nature
arising under this Agreement or pertaining to the validity of this Agreement
or the performance thereof the party claiming the dispute shall notify the
other1 by telex, of the full details of the claim or dispute. In the event
the parties can not settle the same within thirty (30) days thereafter,
either party may demand arbitration. In the event of
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arbitration, the arbitration will be conducted in English under the
rules of the International Chamber of Commerce publication
"International Rules for Interpretation of Trade Terms" in Rochester,
New York, by an arbitrator appointed under these rules. Each party
agrees that the decision of the arbitrator will be binding and that there
will be no independent right to bring a legal proceeding except the right to
bring an action upon the arbitrator's award. The cost of arbitration will be
split equally between the parties and the arbitrator will have the right
to demand that a bond or deposit be posted to cover the same. In the event
either party refuses or fails to cooperate with the arbitration, the
arbitrator shall proceed based upon such information as the arbitrator
may have, and his judgment shall be binding as stated herein. The
Agreement will be interpreted under New York State law and deemed executed
there.
16. Representations - The parties agree that no oral representation
or statement not reduced to writing and initialed by the parties, shall
have any binding effect. It is the intention of the parties to disregard
any representation not incorporated in writing into this contract.
17. Export License - If required, XXX XXXX agrees to obtain and pay
for any export license or any charges, duties or expenses in relation
thereto or required to manufacture and export the product, that may be
required by Taiwan government of Taiwan or others.
18. Letters of Credit- The non-transferable Letters of Credit described
herein shall be issued to cover 100% of the purchase order value for the
products to be manufactured and shipped. Before drawing on the letter1
XXX XXXX shall supply to the bank issuing the letter of credit a set of
bills of lading showing delivery to a common carrier of the completed
goods described in the purchase order, for delivery to the assembly
company or such other company as ALENAX or its authorized agent may
designate, together with all risks insurance coverage, certification of
the goods according to contract requirements, and such other proof of full
performance as may be reasonably required. In the event shipment of the
completed product is to be made outside of Taiwan, then XXX XXXX shall also
supply the following documents, plus such other documents as may be required
to establish full performance:
(a) Marine and war risk insurance covering all risks for the full
amount of the invoice value, for the benefit of ALENAX placed in an
insurance company licensed to do business in U.S.A.
(b) A commercial invoice not to exceed the amount of the purchase
order;
(c) A customs invoice;
(d) A full set of on board bills of lading marked "Freight Collect"
evidencing shipment from Taiwan to the designated receiver of the order;
(e) Any export permit required;
(f) Certification of testing of the goods, according to contract
requirements.
(g) FORM 'A' CERTIFICATE OF COUNTRY OF ORIGIN.
19. Non-Disclosure and Non-Competition - XXX XXXX acknowledges that
the plans and specifications, the methods of manufacture, and the tools
dies and information about the same are trade secrets. The release of the
same to competitors of ALENAX would cause great damage. XXX XXXX
agrees that it will not release or disclose the same to anyone without
the prior written consent of ALENAX. XXX XXXX agrees not to use or
disclose drawings, specifications, technical information or other data
furnished by ALENAX except in furnishing supplies to ALENAX under this
Agreement. XXX XXXX agrees that any use or disclosure of ALENAX'S plans,
specifications, technical information, other data, tools and dies, will be
difficult or impossible to verify. Accordingly, XXX XXXX shall not
undertake to manufacture for itself or any third party, any lever
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propelled bicycles or tricycles or any parts therefor. Any breach of
this obligation shall entitle ALENAX to both an immediate injunction
and liquidated damages in the amount of one (1) million United States
Dollars. ALENAX will agree not to place business for any of its
special parts made by XXX XXXX with other manufacturers without prior
notice being given to XXX XXXX.
20. Notice - Any notice permitted or required may be personally
served, sent by telex, or served in any other method that will provide
delivery. It will be given on the earlier of actual receipt or two (2)
business days after telex.
21. Miscellaneous
(a) This Agreement shall bind the parties and their successor:;
(b) It may not be changed nor terminated orally, but only by an in
writing signed by the parties;
(c) The paragraph headings are for description and shall not intent of
the paragraphs.
(d) All terms used herein shall have the meaning defined in the
International Chamber of Commerce publication "International Rules
for Interpretation of Trade Terms".
IN WITNESS WHEREOF, the parties have set their hands and seals.
ALENAX CORPORATION
/s/Xxxxx Xxx/s/
By Xxxxx Xxx
XXX XXXX INDUSTRY CO., LTD.
/s/Xxxxxxx Xxxxx/s/
By Xxxxxxx Xxxxx
EXHIBIT 1
LIST OF SPECIAL ALENAX BICYCLE PARTS
TRANSBAR AND LEVER.
SEE-SAW IDLER.
REAR HUB ASSEMBLEY.
SERVICE PARTS FOR ALL ITEMS ABOVE.
ALL ABOVE AS PER DRAWINGS IN EXHIBIT 4.
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TRB SYSTEMS INC.
Ratification and Consent to Assignment
Reference is made to the Agreement dated 30 July, 1994 between Alenax
Corporation and Xxx Xxxx Industry Co., LTD. (the Agreement).
The parties hereto acknowledge that TRB Systems, Inc., a Delaware
corporation under common control with Alenax Corporation, is flow
engaged in the development and eventual sale of bicycles, utilizing
bicycle parts of the type referred to in the Agreement, in place of its
affiliate Alenax Corporation.
It is therefore agreed that the Agreement and all the rights and
obligations of Alenax thereunder are hereby assigned to TRB Systems,
Inc., that the Agreement is now in effect between Xxx Xxxx Industry Co.,
LTD. and TRB Systems, inc. that the date this assignment becomes effective
is April 15, l994,and that Xxx Xxxx and TRB Systems Inc. shall negotiate in
good faith the production schedule and prices.
Signed and ratified as of April 15,1994.
XXX XXXX Industry Co., LTD.
Title:
By: /s/ILLEGIBLE/s/ manager
ALENAX CORPORATlON TRB Systems Inc.
/s/Xxxxx Xxx/s/ /s/Xxxxx Xxx/s/
By:Xxxxx Xxx Xxxxx Xxx
Title: President President
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