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EXHIBIT 10.19
SUPPLY AGREEMENT
THIS AGREEMENT is made on 14 December, 1994, by and between XXXXX
MATERIAL HANDLING COMPANY ("XXXXX"), a kentucky, U.S.A. corporation, with its
principal offices at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, X.X.X. and
FUNK MANUFACTURING COMPANY ("'FUNK"), a Delaware corporation with its principal
offices at Industrial Park, Highway 169 N., Xxxxxxxxxxx, Xxxxxx 00000.
WHEREAS, XXXXX is engaged in the manufacture, distribution and sale of
various types of industrial trucks and service parts therefor;
WHEREAS, FUNK has the physical facilities and production capacity to
manufacture for XXXXX certain products, components and service parts for such
industrial trucks;
WHEREAS, FUNK desires to sell to XXXXX, and XXXXX desires to purchase
from FUNK, certain of the aforesaid products, components and service parts
therefor; and
WHEREAS, FUNK recognizes and understands the importance XXXXX places on
achieving and sustaining world competitive quality, cost and customer
satisfaction for the components and spare parts it purchases from suppliers;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the parties agree as follows:
1. DEFINITIONS.
For the purpose of this Agreement, the following terms shall have the meanings
indicated below:
1.1 "Products" means the products specified on Exhibit 1, attached hereto
and incorporated herein, as amended from time-to-time by written
agreement of the parties, together with such improvements,
modifications and replacements as are approved or authorized from
time-to-time by XXXXX.
1.2 The terms "Service Parts" and "Spare Parts" have the same meaning and
are defined as follows: Parts accessories manufactured or provided by
FUNK and used in repairing or maintaining Products, as well as complete
units of Products for aftermarket purposes.
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1.3 The terms "Component" and "Components" have the same meaning and are
defined as follows: Raw materials, components, subassemblies and other
material purchased, manufactured or provided by FUNK and used in the
production, repair or maintenance of the Products.
2. MANUFACTURE AND SALE OF PRODUCTS.
2.1 XXXXX agrees to purchase from FUNK and FUNK agrees to sell and deliver
to XXXXX, in accordance with the terms and conditions contained in this
Agreement, those Products and Spare Parts which are ordered by XXXXX
during the term of this Agreement. The benefits and opportunities
afforded to Xxxxx under this Agreement shall inure to the benefit of
all of XXXXX'x divisions, affiliates, subsidiaries and licensees.
3. ORDERS.
3.1 XXXXX will order Products from FUNK by issuing a blanket purchase order
on XXXXX'x standard form. The blanket purchase order will be issued to
confirm the current prices and standard terms of sale. The blanket
order will not constitute an order for Products. The Supplier Planning
Schedule ("Schedule") will be the document by which specific quantities
of Products are forecasted. The Schedules will state the quantities
forecasted and the specifications for those Products established in
accordance with this Agreement. The Schedules may also be used for
planning purposes to confirm schedules for previously ordered Products
and to estimate quantities and schedules for up to a full 12-month
period. Schedules will be issued monthly for the succeeding 12-month
period. Firm requirements will be transmitted to FUNK by XXXXX on the
Schedules. Upon receipt of the delivery schedule containing firm
requirements by FUNK, FUNK will deliver product to XXXXX in accordance
with this Agreement.
3.2 The quantities of Products scheduled in XXXXX'x Schedules and/or XXXXX
purchase orders are firm commitments for the following time frames:
Period A:
Quantities and dates planned in the latest Schedule become unchangeable eight
(8) weeks prior to the required ship date, with guaranteed on-time deliveries by
FUNK in such quantities and on such dates. In the event XXXXX requires schedule
changes within the eight (8) week firm period, FUNK shall use its best efforts
to meet such delivery dates.
Period B:
Quantities planned in the latest Schedule for the period nine (9) weeks to
twelve (12) weeks prior to the required ship date can be changed by XXXXX within
+/- 10%, with guaranteed on-time deliveries by FUNK for such changes.
All other quantities are estimates only and not guaranteed to be followed by
firm orders.
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3.3 All contracts of sale will be upon the terms and conditions set forth
in this Agreement and in XXXXX'x blanket purchase order, a copy of
which is attached hereto as Exhibit 2. FUNK may acknowledge each annual
blanket purchase order using FUNK's standard forms, however, no
different or additional terms or conditions set forth in such an
acknowledgment will add to or modify in any way the terms and
conditions of any contract of sale. FUNK will use its best efforts to
comply with requests by XXXXX for changes in delivery schedules and for
orders for Products in excess of forecasted quantities.
4. DELIVERY OF PRODUCTS.
4.1 Within five (5) working days after receipt of XXXXX'x Schedule(s) for
Products, FUNK will respond to the delivery schedule specified by XXXXX
with an acknowledgment. Otherwise, confirmation shall be deemed.
Delivery schedules established herein and/or in Section 3.2 hereof are
firm and may be modified only upon mutual agreement.
4.2 Deliveries will be F.O.B. FUNK's manufacturing facility to the
locations as specified by XXXXX. Prices will be equitably adjusted for
special packing or shipping preparations requested by XXXXX in writing.
FUNK shall purchase at least three hundred fifty (350) returnable
containers, with XXXXX bearing the cost of 200 such containers at
$235.00 per container, the cost of which will be amortized over the
first 2,000 Product units purchased by XXXXX under this Agreement at
$25.08 each. The cost of the balance of 150 containers shall be borne
solely by FUNK. If the parties agree that additional containers are
necessary, the cost of such additional containers will be amortized
over 2,000 Product units, unless XXXXX elects to purchase such
additional containers outright. FUNK will be the owner of all
returnable containers, and shall be responsible for all maintenance,
upkeep and replacement at its sole cost and expense, except if abused
or lost by XXXXX. XXXX shall not use any of the returnable containers
for any purpose other than shipping Products to XXXXX.
5. INSPECTION TEST.
5.1 All Products shall be received subject to XXXXX'x inspection and test.
XXXXX shall have the right at any time to reject any Products defective
in material or workmanship or to accept and correct the same at FUNK's
expense. Rejected Products may be returned to FUNK at FUNK's risk and
expense. If it is determined that the part is not defective, then at
Funk's option the part will be returned to XXXXX at XXXXX'x risk and
expense. XXXXX can not debit FUNK for original freight costs.
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6. CANCELLATION.
6.1 FUNK agrees that XXXXX may cancel any order without liability if FUNK
is unable to deliver the Products ordered within the time limits as set
forth in Sections 4.1 and 3.2. With respect to such orders as are
canceled pursuant to this Section 6.1, XXXXX agrees that FUNK may
utilize the Products involved to fulfill future orders of XXXXX.
7. PRICES, PAYMENT.
7.1 For orders scheduled to be shipped on or after 1 January 1995, prices
for Products will be as stated in Exhibit 3. These prices shall be the
basis for the adjustments referenced in Section 7.2. Prices for
Products at annual purchase levels of 10,000 units or more will result
in a price reduction of $9.96 per Product retroactive for each Product
purchased in the relevant annual period. Adjustments to prices for
actual quantities purchased will be made within thirty (30) days of end
of the calendar year in question.
7.2 XXXXX and FUNK shall cooperate to offset the impact of inflation upon
the prices set forth in Exhibit 3, and shall have the mutual goal of
cost containment throughout the relationship. Any increases or
decreases to cost, including freight costs, other than those exempted
by Section 7.5, exchange rate fluctuations, duties, tariffs and other
import fees will be borne equally between the parties. Any capital
investment required to reduce costs shall be borne equally by the
parties. Cost reduction/quality improvement meetings will be held at
locations designated by XXXXX four times per year at quarterly
intervals. Adjustments for variances from the baseline cost as set
forth in Exhibit 4 shall be made on no more than a calendar quarterly
basis within thirty (30) days from the end of the quarter and shall be
payable within sixty (60) days of the end of the quarter. The
adjustment shall cover all shipments made during the preceding quarter.
7.3 Price changes for engineering changes agreed upon and authorized by
XXXXX will be negotiated, provided, however, that such price changes
will be based on the material and labor impact on product cost. FUNK
and XXXXX will mutually agree on the date the price adjustment goes
into effect.
7.4 XXXXX will pay all invoices for Products and Spare Parts within sixty
(60) days from the date of invoice receipt.
7.5 XXXXX and XXXX will work together to identify the lowest viable
transportation cost and transit time. Unless otherwise directed by
XXXXX, FUNK shall arrange for transportation. Products shall be
suitably packed and protected for overseas and/or domestic shipment or
otherwise prepared for shipment so as to secure the lowest
transportation and insurance rates. FUNK shall be responsible for all
premium freight costs (including air transport costs) due to late
delivery, defects, mis-shipments, or other reasons directly under
FUNK's control.
7.6 Service Parts shall be priced as follows:
7.6.1 Prices for complete units of Products shall be the same as the
price of Products as stated in Exhibit 3.
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7.6.2 The price for component Spare Parts which are used in current
production Products will not exceed 1.15 times the component
cost of such Spare Parts as contained in the unit Product
price.
7.6.3 XXXXX retains the right to purchase the Ready-For-Use (RFU)
components identified in Exhibit 7, directly from the RFU
suppliers. The items identified in Exhibit 7 are subject to
renegotiation between the two parties, in accordance with the
schedule for negotiating price adjustments as set forth in
Section 7.3 of this Agreement.
7.6.4 The lead time for delivery of Spare Parts is
one-hundred-twenty (120) days, excluding initial stocking
quantities. XXXXX will be subject to a 5% surcharge and bear
responsibility for premium freight costs (if requested by
XXXXX) incurred to satisfy emergency orders due to reasons
directly under XXXXX'x control. FUNK shall be responsible for
all premium freight costs (including air transport costs) for
emergency orders due to late delivery, defects, misshipments,
or other reasons under FUNK's control.
7.6.5 FUNK shall provide Spare Parts which are out of production as
to XXXXX but which are being supplied to other FUNK customers,
at competitive prices (but in no event at prices which exceed
FUNK's lowest prices for comparable spare parts to other OEMs)
for a minimum period of ten (10) years after the date of
termination or expiration of this Agreement. Afterward, in the
event that FUNK wishes to discontinue supplying Spare Parts
which are out of production as to XXXXX to other FUNK
customers, FUNK and XXXXX will develop a transition plan for
out source, without impairing XXXXX'x commitment to maintain
service parts availability to its customers and dealers. No
individual part number shall be obsoleted without giving XXXXX
an option of making a "last time buy" at a special negotiated
price.
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7.6.6. FUNK agrees not to sell XXXXX specific parts to anyone other
than XXXXX without the expressed written permission of XXXXX.
In addition, FUNK agrees to use its best efforts to prevent
FUNK's suppliers from selling XXXXX specific parts to anyone
other than XXXXX or FUNK.
7.7 FUNK and XXXXX agree to discuss the institution of performance
incentives no later than July 31, 1995. These incentives shall
relate to FUNK's delivery performance and XXXXX'x payment
performance.
8. WARRANTY ON PRODUCTS.
8.1 FUNK warrants that the Products will conform to the specifications,
drawings, or other descriptions which are provided by XXXXX to XXXX
identified in Exhibit 5, attached and incorporated by reference herein,
and will be of good material and workmanship, and free from defects.
For purposes of this Agreement, any failure of a Product to be as
warranted is referred to as a "Defect." The warranty in this Section 8
extends to the future performance of the Products in XXXXX products
into which the Products are incorporated. XXXXX and XXXX agree that
XXXXX may, at any time hereafter, revise or otherwise modify the
aforesaid specifications identified in Exhibit 5. XXXXX shall be
responsible for all the costs of such modifications.
8.2 If any Defect as defined in Section 8.1 of this Agreement is discovered
in a Product prior to shipment from XXXXX'x location to a dealer or
customer, FUNK, at FUNK's option, will either supply XXXXX with
repaired or replacement Product at no charge or, if the Product can be
repaired by XXXXX, request XXXXX to repair the Product and pay or
reimburse XXXXX for replacement Parts or Products and for labor at an
initial rate of $32 per hour for XXXXX to correct the defect. This rate
is subject to increase by mutual agreement of the parties. For purposes
of warranty claims on Products pursuant to this Section 8, charges for
labor performed in a calendar year will be based on XXXXX'x "Standard
Times Guide" for warranty labor effective as of 1 January of each
calendar year.
8.3 If any Defect as defined in Section 8.1 of this Agreement is discovered
in a Product after it has been delivered as part of an industrial truck
to a dealer within twelve (12) months after the date of delivery to the
first retail purchaser, or in the first 2,000 hours of use, whichever
occurs first, FUNK will pay or reimburse XXXXX for the Spare Parts at
FUNK spare part pricing plus 20% for handling by XXXXX and XXXXX
dealers and labor (including any travel costs at an initial flat rate
of $64.00 per warranty claim) required to correct the defect. This rate
is subject to increase by mutual agreement of the parties. This
obligation will end eighteen (18) months after passing of risk per
Section 4.2 herein.
8.4 If any Defect as defined in Section 8.1 of this Agreement is discovered
in a Product at any time which poses a hazard which may cause personal
injury or property damage, the parties shall meet as soon as possible
to discuss such matter. XXXXX and FUNK shall use good faith efforts to
estimate the total cost of the parts and labor (plus reasonable travel
costs) to correct the defect, the reasonable labor and directly related
overhead expenses to locate and repair any industrial trucks into which
the defective product has been incorporated, and costs to provide
reasonable and proper notice and
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warnings to customers, owners and users of such industrial trucks, and
allocate responsibility for all such costs and expenses. FUNK shall pay
its share of such costs and expenses to XXXXX on a monthly basis based
upon completed Application for Adjustments ("AFA's") and XXXXX'x
documented costs and expenses.
8.5 When a written claim for warranty reimbursement is made, FUNK may,
promptly upon receipt of the claim, take the following actions:
x. XXXX may require XXXXX to return the Spare Parts or Products at FUNK's
expense to FUNK's facility indicated by FUNK.
b. If FUNK determines any such Spare Parts or Products share not
defective, FUNK will provide XXXXX with the data and analysis upon
which FUNK's determination is based. Otherwise, FUNK shall promptly pay
or reimburse XXXXX in accordance with the applicable warranty
provision.
Warranty claims have to be submitted to FUNK within one hundred, fifty
(150) days after date of failure or repair. Any warranty claim made by
XXXXX will be considered accepted by FUNK unless FUNK notifies XXXXX of
its denial of the claim with a written report stating the reason for
denial within ninety (90) days after notice that the parts or Products
are received at FUNK's facility. Initial return of warranty items will
be to XXXXX.
8.6 FUNK warrants that Spare Parts sold to XXXXX pursuant to this Agreement
will be free of defects with the specifications provided to FUNK and
will be of good material and workmanship for a period of one hundred,
eighty (180) days after delivery to the first retail purchaser. FUNK
will not be held liable for defects caused by storage or handling
outside of FUNK'S control.
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8.7 The warranties provided by this Agreement do not apply to defects in
Products or Spare Parts caused by delivery to XXXXX by parties other
than FUNK or FUNK's representatives or to defects directly attributable
to design of the Products or Spare Parts.
8.8 This warranty is in lieu of all other warranties of Product quality,
express or implied, and states FUNK's entire obligations with respect
to defects in Products or Parts. THERE ARE NO IMPLIED WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
9. QUALITY ASSURANCE.
9.1 FUNK warrants that it will establish and maintain a quality assurance
program which conforms to the criteria stated in Exhibit 5 and,
further, warrants that each Product and Spare Part sold by FUNK to
XXXXX pursuant to this Agreement will be manufactured (or if certain
parts are purchased, purchased and inspected) subject to and in
compliance with said quality assurance program.
9.2 XXXXX may, at its option and expense, continuously or periodically
review and inspect FUNK's quality assurance program and Product quality
at FUNK's facilities. FUNK will provide XXXXX'x representatives with
good faith cooperation and such access and facilities, including
testing and inspection devices and equipment, as may reasonably be
required by XXXXX'x representatives to conduct such review and
inspection. XXXXX will use its best efforts consistent with
accomplishing its review and inspection to avoid disruption or delay of
FUNK's operations. Inspection or review of FUNK's quality assurance
program or Products at FUNK's facilities will not constitute acceptance
of any Products and will not relieve FUNK of responsibility for any
defects in any Product.
9.3 FUNK further warrants that if FUNK at any time has reason to believe
that any defect in design or manufacture may be present in any Products
or Spare Parts sold or to be sold pursuant to this Agreement, FUNK will
immediately advise XXXXX and will cooperate with XXXXX to determine
whether the defect is present and, if so, will cooperate with XXXXX in
good faith to correct it.
9.4 Provided the Product components supplied to XXXXX hereunder meet or
exceed in all respects all XXXXX specifications and requirements except
the source of supply, including but not limited to those contained in
Exhibit 5, FUNK shall have the right to determine suppliers for Product
components. FUNK shall promptly notify XXXXX, in writing, of any
changes in suppliers and the effective date of the changes.
10. INSURANCE AND INDEMNIFICATION.
10.1 FUNK shall obtain and keep in effect (i) product liability insurance in
the amount of $5,000,000 per occurrence and $10,000,000 aggregate,
which shall provide protection to XXXXX against claims or suits for
personal injury, death or property damage caused by (or alleged to have
been caused by) a defect in material or workmanship of the Products and
Spare Parts or portion thereof supplied by FUNK under this Agreement;
and (ii) contractual liability coverage in the amount of $5,000,000 per
occurrence and
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$10,000,000 aggregate for the hold harmless clause set forth in this
section.
10.2 (i) Independent from the existence of product liability insurance,
FUNK agrees to defend, hold harmless and indemnify XXXXX
against any liability, loss, injury, claim, damage, suit or
proceeding and all expenses incident thereto (including
reasonable attorney fees and litigation costs) resulting from
claims or lawsuits commenced against XXXXX by parties seeking
monetary damages for bodily injury (including death) or
property damage caused by (or alleged to have been caused by)
arising from or connected with a defect in manufacture,
assembly or workmanship of the Products and Spare Parts or
portion thereof.
(ii) FUNK's liability to XXXXX under this section shall be limited
solely to claims arising in connection with any Product and
Spare Part or portion thereof supplied by FUNK pursuant to
this Agreement.
10.3 FUNK's obligations regarding indemnification shall survive the
termination or expiration of this Agreement for seven (7) years. FUNK
intends to keep in force product liability insurance for the same
period.
10.4 FUNK will furnish CLARK with a certificate from FUNK's insurance
carrier. FUNK will provide notice thirty (30) days prior to changes in
insurance coverage or cancellation by the insurance carrier.
11. PATENTS.
11.1 XXXXX represents and warrants that the Products and Spare Parts ordered
pursuant to this Agreement and their sale or use, alone or in
combination, according to XXXXX'x specifications or recommendations, if
any, will not infringe any U.S. or foreign patents, and XXXXX agrees to
defend, indemnify, hold harmless and protect FUNK, and any company
affiliated with FUNK, its successors, assigns, customers and users of
the Products and Parts, against all suits and from all damages
resulting from such alleged infringements, and XXXXX agrees that XXXXX
will, upon request, defend or assist in the defense at XXXXX'x expense
of any such suit.
12. TRADEMARKS ADVERTISING.
12.1 Each Product sold to XXXXX pursuant to this Agreement will have affixed
a nameplate and one (1) or more of the trademarks specified by XXXXX in
the distinctive form specified by XXXXX in a suitable place to be
designated by XXXXX. XXXXX may also upon request specify that all or
some of the Spare Parts to be sold to XXXXX by FUNK pursuant to this
Agreement will have such trademarks affixed in a suitable place to be
designated by XXXXX. XXXX will not acquire rights of any kind under any
of XXXXX'x trademarks, except the right to use them in the manner
permitted by this section, and will in no event sell, distribute, or
otherwise dispose of any Products or Spare Parts bearing any of XXXXX'x
trademarks to any person, firm or corporation other than XXXXX without
first removing the trademarks and obtaining XXXXX'x express written
consent.
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12.2 All publicity and advertising concerning the sale of Products and Parts
bearing XXXXX'x trademarks shall be prepared under XXXXX'x sole
direction and control. FUNK will not disclose the existence of this
Agreement, or any of its terms and conditions to any other person, firm
or corporation, or advertise or release any publicity concerning this
Agreement or the performance by either party without XXXXX'x written
consent in each instance, except as otherwise required by law.
13. REQUIRED ASSISTANCE.
13.1 XXXXX will provide qualified representatives as liaisons to assist FUNK
in resolving manufacturing start-up problems and to assist FUNK's
representatives as required with respect to manufacturing changes
affected by Product modifications.
13.2 XXXXX will attempt to resolve engineering or manufacturing problems by
written or telephone communications with FUNK's liaison, however, when
and as reasonably requested, FUNK will provide qualified
representatives to review and resolve problems at XXXXX'x location or
at the location of the Products. Each party will be responsible for its
own expenses with respect to such calls.
13.3 XXXXX will also provide an engineering representative as a liaison to
approve modifications that are suggested for prospective sales of
Products and for modification of Products in the field. XXXXX will
authorize and approve by written authorization to FUNK any appropriate
changes to the Product which may be required.
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14. TOOLING.
14.1 FUNK will obtain, install and pay for all tooling and holding fixtures
necessary for the manufacture, assembly and testing of Products within
FUNK.
14.2 Set forth in Exhibit 6, attached hereto and incorporated as part of
this Agreement, is a list of tooling and fixtures installed or to be
installed at supplier locations. All such tooling and fixtures have
been paid for by XXXXX, and ownership and title to all such tooling and
fixtures shall remain with XXXXX. FUNK agrees to execute any and all
documents requested by XXXXX in order to effect such transfer of
ownership.
14.3 All tooling and fixtures obtained by FUNK and exclusively used for the
manufacture or assembly of Products shall not be used in the
production, manufacture, assembly or design of any other products
except with the expressed written consent of XXXXX. Ownership rights to
Product tooling not used exclusively in the manufacture, assembly of
Products shall remain with the providing party.
FUNK agrees to maintain all such tooling and fixtures in good
condition, at its own expense.
FUNK also agrees to supply all perishable tooling required for its own
machine tools and manufacturing systems.
14.4 The parties agree that the tooling and fixture costs incurred by FUNK
in connection with its manufacture and assembly, of Products and Spare
Parts to XXXXX under this Agreement is $150,000. XXXXX shall pay for
such cost as follows:
The $150,000 tooling cost shall be reduced by $6.00 per Product sold to
XXXXX. At such time as XXXXX has purchased 25,000 Products, the
$150,000 tooling cost shall have been paid for by XXXXX in full, and
the Product price shall at that time be reduced by $6.00 per Product.
In connection with the $150,000 tooling cost, in the event that XXXXX
has failed to purchase 25,000 Products during the term of this
Agreement, following the expiration date of this Agreement, XXXXX shall
be liable for unamortized tooling costs of $6.00 per Product for each
Product less than 25,000 purchased by XXXXX.
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Upon the purchase of XXXXX of the number of Products set forth above to
fully amortize the cost of tooling or upon payment by XXXXX of the
unamortized tooling cost, ownership of all such tooling and fixtures
shall revert to XXXXX. XXXX agrees to execute any and all documents
requested by XXXXX in order to effect such transfer of ownership.
15. TERM AND TERMINATION.
15.1 The term of this Agreement shall expire 31 December 1999 and it will
continue thereafter unless terminated by either upon written notice
given at least eighteen (18) months prior to expiration of the initial
term or any time thereafter.
15.2 Either party may terminate this Agreement for failure by the other
party to perform or adhere to any material promises or obligations
undertaken pursuant to this Agreement by giving the other party sixty
(60) days' written notice within which to cure such default. If such
default is not cured within the sixty (60) day period, the party which
gave the notice may terminate this Agreement at any time thereafter
upon written notice to the other party.
15.3 Either party may terminate this Agreement immediately by written notice
to the other party if any of the following events occur:
1. Any attempted transfer or assignment of this Agreement or any
right or obligation hereunder by the other party unless the
assignment is otherwise permitted by this Agreement.
2. The filing of a voluntary petition in bankruptcy by the other
party.
3. The filing of a petition in bankruptcy by the other party.
4. The appointment of a receiver or trustee for the other party,
provided such appointment is not vacated within thirty (30)
days from the date of such appointment.
15.4 The termination of this Agreement will not affect or impair the rights,
liabilities and obligations of either party under any order issued
prior to the termination, will not relieve either party of any
obligation or liability accrued under this Agreement or pursuant to any
order issued prior to the termination, and will not relieve either
party of the continuing obligations pursuant to Section 8, Warranty on
Products, Section 9, Quality Assurance Section 10, Indemnity, Section
11, Patents, Section 7.8.5, Spare Parts, and Section 16,
Confidentiality, which obligations will survive any termination of this
Agreement.
16. CONFIDENTIALITY.
16.1 Any and all confidential information including, without limitation,
specifications, formulas, designs, drawings, trade secrets, patents,
manufacturing data, design data, engineering data, cost data and other
commercial or technical information, which one party discloses
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to the other party hereunder shall be kept secret and strictly
confidential by the other party and the other party agrees not to
utilize any such information for its own benefit or the benefit of any
third party whatsoever, nor to disclose it to any third party except
with the express and prior written consent of the disclosing party
during the term of this Agreement and for five (5) years thereafter.
16.2 All information and materials identified in Section 16.1, including all
copies thereof, shall promptly be returned by the other party to the
disclosing party upon the expiration or termination of this Agreement,
or at any time upon request of the disclosing party.
16.3 The ownership rights to the design of Products shall remain exclusively
with XXXXX.
17. FORCE MAJEURE.
17.1 Should an event of force majeure prevent or delay the total or partial
performance of the obligations resulting from this Agreement, the party
claiming force majeure is obligated to inform the other affected party
within fifteen (15) days from such occurrence at the beginning, as well
as at the end, of the respective force majeure. The term "force
majeure" as used in this Section 17 is understood to mean any
unforeseen event or occurrence beyond the control of the party
affected, or if foreseen, unavoidable and arising after the effective
date hereof, preventing or delaying the performance of obligations set
forth herein, including, by way of example and not by way of
limitation, actions by any wars, acts of God, accidents, lockouts,
strikes, or other work stoppages. No liability shall exist for failure
or delay of performance of obligations during the period of force
majeure. In the event FUNK declares force majeure, XXXXX shall be free
to resource any and all Products and components used in Products from
other sources, and FUNK shall provide all reasonable assistance in
connection therewith.
17.2 If FUNK is unable to deliver Products in accordance with XXXXX'x
schedules or releases by reason of force majeure for a period in excess
of six (6) months, then XXXXX may terminate this Agreement without
liability to FUNK.
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18. GENERAL.
18.1 Notices to be given by either party will be in writing and may be delivered
by either telegram or prepaid certified mail to the following addresses:
FUNK: FUNK MANUFACTURING COMPANY
Industrial Park, Xxxxxxx 000 X.
Xxxxxxxxxxx, Xxxxxx 00000
Attention: Director of Sales
XXXXX: XXXXX MATERIAL HANDLING COMPANY
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Director of Purchasing
With a copy to: XXXXX Material Handling Company
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Either party may change its address by written notice to the other party.
18.2 This Agreement will not be assigned by either party without the written
consent of the other party, except when the assignment is made to any
subsidiary or affiliate of the parties or to a successor to all or a
substantial part of the business of either of the parties. Unless
otherwise agreed, no assignment will relieve the assigning party of any
duty to perform or any liability for breach.
18.3 This Agreement encompasses the entire agreement between the parties
respecting the sale and purchase of the Products and Parts covered by
this Agreement and supersedes any and all previous agreements,
memoranda, negotiations or other understandings of the parties with
respect thereto.
18.4 Any failure by either party hereto to enforce, at any time, any term or
condition of this Agreement will not constitute, nor will it be
construed as, a waiver of that party's right thereafter to enforce each
and every term and condition of this Agreement.
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18.5 If for any reason any provision of this Agreement is invalid, illegal,
or unenforceable, then such provision will be deemed severable from the
other provisions of this Agreement, all of which remain in full force
and effect and binding on the parties to this Agreement.
18.6 This Agreement and all purchase orders issued pursuant to this
Agreement in the United States will be governed by and construed in
accordance with the laws of the State of Kentucky, U.S.A. Any
provisions in XXXXX'x standard purchase order terms specifying warranty
on Products or Parts or requiring arbitration of claims arising out of
any purchase order are deleted and will be void and have no force and
effect.
18.7 Any controversy or claim which arises out of or relating to this
Agreement, and any amendments thereto or any breach thereof, shall be
maintained only in the federal or state courts of Illinois, and both
parties submit themselves to the jurisdiction of such courts for all
purposes necessary or appropriate to enforce the provisions of this
Agreement. However, any such controversy or claim shall be referred as
promptly as possible to mediation before the Mediation Center of
Kentucky, Inc. before, and as a condition precedent to, the initiation
of any adjudicative action or proceeding.
18.8 The statement herein of a right, power, privilege or remedy of either
of the parties shall be cumulative and shall not preclude any other
right, power, privilege or remedy to which either party would otherwise
be entitled under applicable law.
18.9 Under various U.S. Customs laws and regulations, XXXXX may be liable
for substantial penalties and/or damages in the event false or
incomplete information is submitted to the U.S. Customs Service with
respect to merchandise imported for the account of or by XXXXX. In the
event XXXXX is subjected to any action for any such penalties and/or
damages based on information originating from FUNK, it is understood
and agreed by FUNK that FUNK will pay or otherwise reimburse XXXXX for
the full costs of defending against such actions, as well as pay or
otherwise reimburse XXXXX for any and all actual duty and penalty
payments which may be required as the result of such actions.
18.10 XXXXX hereby certifies that the tangible personal property described
herein is purchased for resale or other non-taxable use and not for a
taxable use or consumption unless otherwise indicated on the purchase
order.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate originals by their duly authorized representatives as of the day
and year first written above.
XXXXX MATERIAL HANDLING COMPANY FUNK MANUFACTURING
COMPANY
By: /s/ R.E. Xxxxxxx By: /s/ X.X. Xxxxxxx
---------------------------- -------------------------
Name: R E Xxxxxxx Name: X.X. Xxxxxxx
Title: President Title: V.P. & G.M.
Date: 15 December 1994 Date: 14 Dec. 1994
