Exhibit 10.3
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. SUCH PORTIONS ARE DESIGNATED "[***]."
AGFA/PCA 2002 SALES CONTRACT
This Agreement ("Agreement"), effective as of February 4, 2002 (the "Effective
Date"), is made by and between Agfa Corporation, a Delaware corporation, with
its principal place of business at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx Xxxx, Xxx
Xxxxxx 00000 (hereafter referred to as "Seller" or "Agfa"), and PCA
International, Inc., a North Carolina corporation with an address at 000
Xxxxxxxx-Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000 (currently Agfa Account
Number US00071881) (hereinafter referred to as "PCA" or "Buyer").
WHEREAS, Agfa and Buyer wish to enter into a long-term relationship for the
supply by Agfa to Buyer and purchase by Buyer from Agfa of certain products on
the terms and conditions stated below;
NOW, THEREFORE, Agfa agrees to sell to Buyer, and Buyer agrees to purchase from
Agfa, during the delivery period hereinafter provided, certain Agfa Products (as
defined herein) subject to the terms and conditions set forth below:
1. TERM:
a. This Agreement shall commence on February 4, 2002 and shall
continue for a period of approximately five (5) years, ending on
January 28, 2007, unless terminated earlier pursuant to other sections
of this Agreement.
b. This Agreement is non-cancelable except as provided herein.
The parties will use good faith and reasonable efforts to negotiate a
renewal of this Agreement six (6) months before the expiration of this
Agreement.
2. 1999 CONTRACT:
This Agreement replaces the Sales Contract between Buyer and Agfa that
was effective May 3, 1999 (the "1999 Contract"), which will become null
and void upon the execution of this Agreement, except for payment by
Buyer for actual purchases made under the 1999 Contract prior to the
Effective Date. Agfa Products received by Buyer on or after the
Effective Date shall be covered by this Agreement.
3. PRODUCTS:
a. The products covered by this Agreement are:
i. Agfacolor(R) Paper Type 11 or equivalent (the
"Agfa Paper");
ii. Agfacolor(R) long roll film or equivalent
(collectively the "Agfa Film"); and
iii. related Agfa photographic processing chemical
products (the "Agfa Chemistries").
b. Each of the foregoing is referred to in this Agreement as an
"Agfa Product" and are referred to in this Agreement collectively as
the "Agfa Products."
c. Buyer hereby acknowledges and agrees that the Agfa Products
sold hereunder are and/or will be purchased solely for Buyer's own use
or consumption and not for resale. The resale of the Agfa Products by
Buyer to a reseller or OEM not owned by Buyer is prohibited.
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d. Agfa hereby acknowledges and agrees that Agfa is the importer
of record for the Agfa Products sold hereunder.
4. QUANTITY:
During the term of this Agreement, PCA shall purchase 100% of its
requirements in North America for film, photographic paper and related
chemistry from Agfa, except that from time to time, Buyer may purchase
minimum quantities of competitive products, not to exceed one percent
(1%) of Buyer's annual consumable requirements in North America, for
testing and evaluation purposes.
5. PRICES AND TERMS:
The prices of Agfa Products and the terms of payment shall be found on
Schedule A, Pricing Schedule and Payment Terms, attached hereto and
made a part hereof.
Prices are exclusive of taxes, which, if applicable, will be shown
separately on the invoice. PCA is responsible for payment of all
applicable federal/state/local taxes or fees (except those based on
Agfa's income or earnings) unless a valid tax exemption certificate is
sent to Agfa. If any such taxes or fees are paid by Agfa, PCA will
promptly reimburse Agfa therefor.
6. ADVERTISING ALLOWANCE:
a. From the Effective Date until January 31, 2004, Buyer will
receive an advertising allowance as set forth on Schedule A (the
"Advertising Allowance"). Agfa will give the Advertising Allowance by
issuing a credit to Buyer's Agfa account two business days before month
end with the remaining two days to be included in the subsequent
month's rebate credit. This will reduce PCA's current month's
outstandings with Agfa. PCA shall advise Agfa before the end of each
month in which an Advertising Allowance is earned which invoice(s) PCA
wishes the Advertising Allowance to be credited against. From February
1, 2004, through January 28, 2007, Buyer's Advertising Allowance shall
be credited directly on the invoice with a discount off of the net
prices in lieu of the advertising allowance rebates as set forth in
Schedule A.
b. The Advertising Allowance shall be earned by Buyer for
promoting Agfa's products and name in the United States and Canada. In
consideration for the Advertising Allowance, Buyer will incorporate the
Agfa product name and logo on substantially all television advertising,
printed advertising, and merchandising materials printed, such as
newspapers, slicks, banners, in-store signage, all direct mail pieces,
and in-store fliers.
c. As used in this Agreement, "Actual Purchases" means purchases
of Agfa Products by Buyer, calculated at invoice price less any
discounts taken for any reason other than discounts taken on account of
the Advertising Allowance and less any returns.
7. FORECASTS; DELIVERY:
a. Buyer shall provide Agfa, on a monthly basis, with a monthly
written rolling purchases forecast for each of the following six (6)
months. So long as such forecasts are made in good faith by Buyer, such
forecasts shall neither represent a minimum purchase requirement nor a
limit on Buyer's purchases during the forecast periods.
b. Buyer shall submit purchase orders for the particular Agfa
Products at least three (3) weeks in advance of delivery. All purchase
orders shall be firm. All accepted orders shall be delivered not more
than three (3) business days after the scheduled delivery date
specified in the order or otherwise approved by Buyer. Any terms in
Buyers' purchase orders that are in addition to or in
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conflict with any of the terms of this Agreement, including the
Schedules hereto, shall not be binding on Agfa.
c. All Agfa Products shall be delivered FOB at (i) Buyer's
production facilities in either Matthews, North Carolina or Charlotte,
North Carolina, or (ii) Buyer's rented warehouse facility in Charlotte,
North Carolina, in each case as specified in Buyer's purchase order.
Notwithstanding anything to the contrary contained in this Agreement,
transfer of title and ownership (including risk of loss) of Agfa
Products from Agfa to Buyer shall occur upon delivery of Agfa Products
to Buyer at any of the facilities referenced in clauses (i) and (ii) of
the first sentence of this Section 7(c).
d. Buyer shall be responsible for all costs incurred in
connection with the Agfa Products purchased pursuant to this Agreement
(A) for storage and related services by the warehouse facility
referenced in clause (ii) of the first sentence of Section 7(c) of this
Agreement, and (B) for transportation from such warehouse facility to
Buyer's production facilities referenced in clause (i) of the first
sentence of Section 7(c) of this Agreement (collectively, the
"Warehouse Costs"); provided, however, that Agfa shall be responsible
for any Warehouse Costs which exceed the amount set forth in Schedule A
in any calendar year, provided, further, that in no event shall Agfa be
required to pay more than the amount set forth in Schedule A in
Warehouse Costs in any calendar year unless Agfa specifically agrees to
pay Warehouse Costs in excess of such amount in connection with one or
more particular purchase orders.
8. INFORMATION RIGHTS AND CREDIT MATTERS:
Buyer hereby authorizes Agfa to investigate Buyer's credit from time to
time and Buyer shall provide, if requested by Agfa's Credit Department,
Buyer's audited annual, or unaudited semi-annual or quarterly financial
statements.
Buyer's credit limit shall not be reduced during the term hereof unless
Buyer shall fail to pay for one or more deliveries according to the
terms of payment contained in Schedule A, and such default shall not be
cured on or before thirty (30) days from Buyer's receipt of written
notice of such failure to pay from Agfa (such unpaid and uncured amount
shall be referred to herein as the "Past Due Amount"). In such event,
Buyer's credit limit may be reduced by such Past Due Amount and Agfa
may withhold further shipments until all Past Due Amounts have been
paid.
Agfa recognizes Buyer anticipates that the volume of Products that it
will be purchasing hereunder will increase over the term of this
Agreement (as approximated in Schedule A hereof), and that the payment
terms will decrease in accordance with Schedule A hereof. Agfa agrees
that it will reasonably extend credit to Buyer to accommodate such
increases in Products purchased and declining terms of payment.
In the event that the available credit to Buyer is reduced due to the
failure of Buyer to timely cure a failure to pay or in the event the
available credit to Buyer is exceeded due to purchases greater than the
volumes contemplated in Schedule A, the following provisions shall
apply to amounts in excess of the available credit ("Excess Amount").
Agfa shall notify Buyer, in writing, that the credit limit has been
exceeded ("Excess Notice") and Buyer shall have thirty (30) days from
the date of such Excess Notice to pay the Excess Amount. Agfa shall not
withhold shipments of Agfa Products unless Buyer fails to pay any
Excess Amount on or before thirty (30) days from Buyer's receipt of
such Excess Notice, and Agfa shall resume shipments once all Excess
Amounts have been paid. In the event that there are outstanding Excess
Notices and Buyer's total outstanding debt to Agfa for purchases of the
Agfa Products hereunder shall fall below the available credit limit,
such Excess Notices shall be cancelled and of no further effect. All
payments received by Agfa from Buyer shall first be applied to Past Due
Amounts and then to Excess Amounts.
Buyer may not apply any deductions, adjustments or credits to any
invoice. Any unauthorized deduction shall be of no effect and shall be
null and void. In the event of any clerical or
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mathematical error, Agfa is hereby authorized to and reserves the right
to correct such errors, as well as to offset rebates and other credits
against past due amounts.
Buyer shall use its best efforts to notify Agfa Customer Service in
writing of any disputes concerning Agfa's invoices within thirty (30)
days from the date of invoice. No deductions may be claimed or applied
by Buyer more than one (1) year from the date on which the claimed
deduction was earned.
Agfa reserves the option, among other remedies, to suspend further
deliveries if Buyer is in violation of financial covenants under any of
its credit agreements, which are not cured or amended within ninety
(90) days, or immediately suspend further deliveries if bankruptcy,
arrangement of creditors, insolvency, or receivership proceedings are
brought by or against Buyer.
As security for payments due Agfa, Buyer hereby grants Agfa a purchase
money security interest in and to all of the products purchased or
licensed from Agfa and their proceeds until all moneys due to Agfa are
paid in full, and a limited power of attorney to execute and file
appropriate UCC forms or other documents on Buyer's behalf to perfect
Agfa's security interest. Buyer shall perform all acts necessary to
protect Agfa's security interest. Agfa may file this Agreement or a
copy of it as a financing statement. Agfa agrees, upon Buyer's written
request, to subordinate Agfa's first lien security interests in the
Products to institutions (other than other product vendors to Buyer)
that have agreed to provide institutional financing to Buyer.
If Agfa is successful in obtaining payment from Buyer and/or a judgment
for payment for amounts due hereunder, Buyer shall pay Agfa for all
costs and expenses of collection, including without limitation,
reasonable attorneys' fees and costs of litigation.
If payment is not received by Agfa within the stated term, in addition,
Buyer shall pay a finance charge in the amount of one and one-half
percent (1 1/2%) or the maximum amount allowed by law, whichever is
lesser, on any past-due amount.
9. LIMITED WARRANTY:
a. All Agfa Products sold to Buyer shall conform to their
then-current published Agfa product specifications. If the
specifications of the Products significantly, materially and adversely
change in form, fit or function during the term of this Agreement, then
Buyer is excused from purchasing such changed Products.
b. If, for any reason, goods sold by Agfa to Buyer do not meet
such requirements, Agfa agrees to replace such goods at no additional
cost to Buyer, provided that the following conditions have been met:
i. Buyer shall take all reasonable efforts to
save all allegedly defective and used film, chemistry, and
paper for examination and verification by Agfa;
ii. All film shall be used prior to its expiration
date;
iii. Agfa shall receive from Buyer within ten (10)
days from the date of discovery written notice describing the
nature of the defect, quantity, and emulsion numbers involved;
and
iv. All inventories must be properly rotated.
c. LIMITATION OF REMEDY: AGFA'S SOLE OBLIGATION AND THE SOLE AND
EXCLUSIVE REMEDY OF BUYER IS LIMITED TO ISSUING A CREDIT ON BUYER'S
AGFA ACCOUNT IN THE AMOUNT OF THE NET PRICE OF PRODUCTS VERIFIED BY
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AGFA TO BE DEFECTIVE IN MANUFACTURE, LABELING OR PACKAGING. PROVIDED,
HOWEVER, THAT IN THE CASE OF FILM PRODUCTS WHOSE DEFECTIVE CONDITION
HAS BEEN DISCOVERED ONLY AFTER SUCH FILM PRODUCT HAS BEEN PROCESSED,
THE AMOUNT OF THE FOREGOING CREDIT SHALL BE 135% OF THE NET PRICE
CHARGED BY AGFA HEREUNDER FOR SUCH DEFECTIVE FILM PRODUCTS. IN
ADDITION, IN THE CASE OF PAPER PRODUCTS WHOSE DEFECTIVE CONDITION HAS
BEEN DISCOVERED ONLY AFTER SUCH PAPER PRODUCT HAS BEEN PROCESSED, THE
AMOUNT OF THE FOREGOING CREDIT SHALL BE NO MORE THAN 135% OF THE NET
PRICE CHARGED BY AGFA HEREUNDER OF THE SQUARE FOOTAGE Of BUYER'S END
USER CUSTOMER'S ORDER THAT HAS BEEN ADVERSELY AFFECTED BY SUCH
DEFECTIVE PAPER PRODUCT. EXCEPT FOR THE APPLICATION OF SUCH CREDITS,
PRODUCTS ARE SOLD WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
d. LIMITATION OF LIABILITY: IN NO EVENT SHALL AGFA, ITS
SUPPLIERS, LICENSORS, OR AFFILIATES, OR THEIR OFFICERS, DIRECTORS,
EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OF USE, DATA OR GOODWILL,
BUSINESS INTERRUPTION, DOWNTIME, OR ANY INDIRECT, SPECIAL, INCIDENTAL,
EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT
LIMITED TO LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR
OTHERWISE, EVEN IF AGFA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND EVEN WHERE SUCH DAMAGES ARE CAUSED BY AGFA OR ITS
SUPPLIERS, LICENSORS OR AFFILIATES. THE REMEDY OF CONSEQUENTIAL DAMAGES
SHALL NOT BE AVAILABLE EVEN IN THE EVENT THE SOLE AND EXCLUSIVE REMEDY
OF REPLACEMENT FAILS OF ITS ESSENTIAL PURPOSE. IN NO CASE SHALL AGFA'S
LIABILITY WITH RESPECT TO ANY OF THE AGFA PRODUCTS EXCEED THE PRICE
PAID TO AGFA BY BUYER FOR THE PRODUCT AT ISSUE.
10. TRADEMARKS:
a. Buyer shall refer to Agfa as the manufacturer of the Agfa
Products in its advertising, literature, or otherwise, and to that
effect shall refer to and use the "AGFA" name and rhombus and
applicable Agfa trademarks (the "AGFA TRADEMARKS") in connection with
the advertising, promotion, and distribution of the Agfa Products. In
advertising, promoting, and distributing the Agfa Products, Buyer shall
abide by Agfa's policies regarding advertising and trademark usage as
established from time to time by Agfa, including, without limitation,
the particulars of the Corporate Design Manual, which has been provided
to Buyer, and as it may be modified by Agfa from time to time. Buyer
shall not alter, remove, or tamper with the labeling on or of any of
the Agfa Products, except as specifically approved by Agfa in writing
in advance.
b. Each time a registered trademark of Agfa or its affiliates is
used, Buyer will print it in between inverted commas and the words
"registered trademark of Agfa-Gevaert Leverkusen/Mortsel-Antwerp" shall
be included with an addendum or footnote.
c. To maintain the reputation of the AGFA TRADEMARKS, Buyer
shall, from time to time as requested by Agfa, supply Agfa with
specimens of its use of the AGFA TRADEMARKS. Furthermore, Buyer hereby
authorizes Agfa to enter and inspect Buyer's premises and to take
samples for inspection during normal business hours at least two times
in any calendar year upon prior reasonable notice.
d. THIS AGREEMENT, INCLUDING THIS SECTION 10, IS NOT INTENDED TO
GIVE AND DOES NOT GIVE BUYER ANY RIGHTS OR LICENSE WHATSOEVER IN OR TO
ANY TRADEMARKS, TRADE NAME, PATENT, COPYRIGHT, OR OTHER
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INTELLECTUAL PROPERTY RIGHT OF AGFA OR OF ITS PARENT OR THEIR
AFFILIATES. DURING THE TERM OF THIS AGREEMENT AND THEREAFTER, BUYER
SHALL NOT CLAIM OWNERSHIP OF NOR CHALLENGE AGFA'S OWNERSHIP OR
REGISTRATION OF THE TRADEMARK AGFA, AGFA RHOMBUS, THE TRADE NAME AGFA,
OR ANY XXXX OR NAME USED BY AGFA OR ITS RELATED COMPANIES AND THEIR
SUCCESSORS.
e. THIS SECTION 10 STATES ALL OF THE RESPONSIBILITIES OF AGFA
CONCERNING PATENT, TRADEMARK, COPYRIGHT, OR OTHER INTELLECTUAL
PROPERTY INFRINGEMENT.
11. CONFIDENTIALITY:
a. It is understood that, in the course of negotiating this Agreement
and during the term of this Agreement, the parties expect to exchange
certain pricing data, marketing strategies, product plans, product
information, and/or marketing information, which are confidential and
proprietary. Accordingly, Buyer and Agfa shall each treat such
information of the other as confidential during the term of this
Agreement and for a period of two (2) years after the expiration or
termination or cancellation of this Agreement.
b. Such obligation of confidentiality shall not apply to any
information which is:
i. generally available from public sources at any time
before or after it is disclosed hereunder; or
ii. obtained from a third party not associated with or
employed by one of the parties to this Agreement who has, in good
faith, and without being restricted by obligation of
confidentiality, passed it on to the party to whom it is
disclosed hereunder.
c. Each of Buyer and Agfa also agree not to divulge such confidential
information of the other to third parties and, insofar as reasonably
possible, each of Buyer and Agfa shall impart or disclose such
confidential information only to such of its employees, agents, or
associates as have a "need to know."
d. It is understood that the provisions of this Section 11 shall not
terminate upon the expiration or termination or cancellation of this
Agreement or upon the entering into any other agreement between the
parties, and that nothing in this Agreement shall obligate either
party to disclose any particular information to the other.
12. OTHER TERMS AND CONDITIONS:
a. General.
(i) General. The minimum acceptable order is $500.00 at net
billing prices and only items contained herein may be used to meet the
$500.00 minimum order requirement. No drop shipments will be made. The
resale of any Agfa Product to a reseller not owned by Buyer is
prohibited and shall constitute grounds for immediate termination of
this Agreement or adjustment of Buyer's discounts without prior
notice, in Agfa's sole discretion. Each delivery, at the option of
Agfa, shall constitute a separate sale with the same effect as though
made under a separate contract covering only the amount thereof.
(ii) If Agfa is unable to supply the quantities of Products
ordered by Buyer within the delivery times agreed by Buyer and Agfa
for the affected orders, and if Buyer and Agfa reasonably agree that
the only remedy is for Buyer to purchase, during the period of such
Product
6
shortage only, equivalent products from another vendor, then Agfa will
pay to Buyer the difference between the price that would have been
paid by Buyer for the affected orders and the net price actually paid
by Buyer for the equivalent products. Buyer shall use its best efforts
to negotiate the lowest possible price for equivalent products so as
to minimize to the greatest extent possible the amount to be paid by
Agfa under this paragraph. As an alternative, Agfa and Buyer may agree
that Agfa may purchase equivalent substitute products from other
vendors to fill Buyer's orders during such period of product shortage,
and Buyer shall accept such equivalent products in fulfillment of
Buyer's orders, for Agfa Products, and Agfa will charge Buyer for such
equivalent products at the prices set forth herein for the Products.
(iii) Seller will carry forty-five (45) days worth of inventory
of the Products in the United States based on Buyer's forecasts.
(iv) Damages, Shortages and Errors. Inasmuch as all shipments
are receipted by the delivering carrier as being in good order, Buyer
must check all shipments immediately on arrival for carton count and
to verify that the types of Products that Buyer ordered were shipped.
Demand for proof of delivery must be made in writing to Agfa Customer
Service within thirty (30) days from the date of invoice. Buyer's
failure to do so shall conclusively be deemed admission of delivery
and waiver of proof thereof.
(v) Return Goods Policy. With the exception of returns due to
errors in carton count, the incorrect Products being shipped or
Products being returned in accordance with the limited warranty set
forth herein (Section 9), all Products are sold without return
privileges. Returns for carton count or incorrect shipments require
prior authorization from Agfa Customer Service. Items delivered to
Buyer in error may be returned only within the first ninety (90) days
after delivery, as long as they are returned to Agfa unused in their
original container and in resellable condition. A Return Authorization
Number must be obtained from Agfa and must be posted on the outside of
the shipping container prior to return.
(vi) Entire Agreement. All previous understandings, agreements
and commitments, oral or written, made between the parties hereto are
merged into and superseded by this Agreement, which represents the
entire Agreement between the parties hereto relating to the subject
matter hereof. Except as otherwise stated herein, no amendment or
change hereof shall be effective or binding upon the parties hereto
unless reduced to writing and signed by an authorized representative
of both Agfa (in Agfa's case, a Vice President-level employee or
higher) and Buyer. In the event of any conflict between the terms of
this Agreement and the terms of any purchase order or release order,
the terms of this Agreement shall prevail.
b. Termination:
(i) Agfa has the right, among other remedies, to terminate
this Agreement provided that Agfa has given Buyer the opportunity to
cure the default for a period of thirty (30) days after receipt of
written notice from Agfa in the event that: (a) Buyer neglects or
fails to perform or observe any material obligations to Agfa under
this Agreement (including but not limited to payment of invoices),
other than payment of Excess Amounts within the payment dates set
forth in Schedule A, subsection d hereof (which is addressed in
section 8, above); or (b) Buyer is in violation of financial covenants
under any of its credit agreements, which are not cured or amended
within ninety (90) days.
(ii) In the event that bankruptcy, an assignment for the
benefit of creditors, insolvency, or receivership proceedings are
brought by or against Buyer that are not dismissed within sixty (60)
days, Agfa shall have the right to terminate this Agreement any time
after the expiration of such 60 day period.
(iii) In the event Buyer fails to comply with any provision of
Section 10 (Trademarks), Agfa may terminate this Agreement, provided
that Agfa has given Buyer the
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opportunity to cure the default for a period of thirty (30) days after
receipt of written notice from Agfa. Upon termination of this
Agreement, Buyer shall not make use of any trademarks that might be
confused in their pronunciation, matter of writing, design, or
meaning, or otherwise with trademarks belonging to Agfa or its
affiliates.
(iv) Buyer has the right, among other remedies, to terminate
this Agreement in the event Agfa is unable (other than due to force
majeure), after written notice and thirty (30) days opportunity to
cure such failure, to provide goods in compliance with the quality
standards required herein, and production specifications of the Agfa
Products or to provide timely delivery, as required herein, for more
than five percent (5%) of the Agfa Products ordered by Buyer during
any ninety (90) day period.
c. Force Majeure. The non-performance of Agfa of its obligation to
deliver any merchandise ordered hereunder shall be excused if such
non-performance is occasioned by any strike or any other labor
trouble, flood, fire, accident, or any other casualty, act of God,
war, adoption or imposition of governmental restrictions, shortage of
or inability to obtain raw materials, damage by the elements, failure
of equipment or other cause of like or unlike nature beyond the
control of Agfa. In the event of such force majeure, if Agfa is unable
to supply the quantities of Products ordered by Buyer within the
delivery times agreed by Buyer and Agfa for the affected orders, and
if Buyer and Agfa reasonably agree that the only reasonable remedy is
for Buyer to purchase, during the period of such Product shortage
only, equivalent products from another vendor, then Agfa will pay to
Buyer the difference between the price that would have been paid by
Buyer for the affected orders and the net price actually paid by Buyer
for the equivalent products. Buyer shall use its best efforts to
negotiate the lowest possible price for equivalent products so as to
minimize to the greatest extent possible the amount to be paid by Agfa
under this paragraph. As an alternative, Agfa and Buyer may agree that
Agfa may purchase equivalent substitute products from other vendors to
fill Buyer's orders during such period of product shortage, and Buyer
shall accept such equivalent products in fulfillment of Buyer's
orders, for Agfa Products, and Agfa will charge Buyer for such
equivalent products at the prices set forth herein for the Products.
In the event that shipments are suspended or delayed for ninety (90)
days or more due to such force majeure, Buyer may terminate this
Agreement upon written notice to Agfa.
d. PCA will pay Agfa the amount set forth in Schedule A within ten
(10) days of signing this Agreement for the MSC300 minilab and other
equipment and accessories listed on Schedule D attached hereto and
incorporated herein (the "Equipment"). The Equipment has already been
delivered to and accepted by PCA. The Equipment is located at the Go
Portraits location at the Carolina Place Mall in Pineville, North
Carolina. THE EQUIPMENT IS PROVIDED "AS IS" AND "WHERE IS," WITH ALL
FAULTS AND WITHOUT WARRANTY OF ANY KIND. AGFA MAKES NO REPRESENTATIONS
ABOUT THE SUITABILITY OF THE EQUIPMENT FOR PCA'S INTENDED REQUIREMENTS
OR PURPOSES. AGFA DOES NOT WARRANT THAT THE EQUIPMENT WILL OPERATE
WITHOUT INTERRUPTION OR ARE ERROR-FREE. AGFA EXPRESSLY DISCLAIMS ALL
EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED
TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NONINFRINGEMENT.
13. NOTICES:
Notices required or permitted hereunder shall be in writing and (a)
delivered in person, (b) mailed by certified or registered mail,
postage prepaid, return receipt requested, or (c) by express or
overnight courier, directed to the following addresses, or to such
other address(es) as a party may hereafter specify by notice given as
herein provided. Each such notice or other communication shall be
effective (x) immediately if delivered in person, and (y) if given by
mail or express or overnight courier, when deposited in the mails or
with the express or overnight courier, postage prepaid.
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Notices to Agfa: With a copy to:
Agfa Corporation Agfa Corporation
Attn: President, Consumer Imaging Attn: General Counsel
000 Xxxxxxxxxx Xxxx 000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000-0000 Xxxxxxxxxx Xxxx, XX 00000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Notices to Buyer:
PCA International, Inc.
Attn: Xxxxx Xxxx
000 Xxxxxxxx-Xxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
14. MISCELLANEOUS MATTERS:
a. This Agreement shall be binding upon the parties hereto and their
respective heirs, administrators, executors, successors and assigns;
provided that Buyer shall not transfer or assign its rights or
delegate its performance hereunder or otherwise with respect to any
order for Agfa Products covered by this Agreement, without the express
written consent of Agfa.
b. Failure to enforce at any time performance of any of the provisions
hereof shall in no way be construed to be a waiver of the provisions
of this Agreement or to affect the right of any party hereafter to
enforce any provisions hereof. The waiver of any breach of any term or
condition hereof shall not be deemed to be a waiver of any other
breach of the same or any other term or condition.
c. If any provision of this Agreement or portion thereof, or the
application thereof to any person or circumstance, is invalid or
unenforceable, the remainder of this Agreement or the application of
the provisions or any portions thereof to other persons or
circumstances shall be unaffected thereby. The Section and Schedule
headings contained in this Agreement are for reference purposes only,
are not intended to define or limit the contents of any Section or
Schedule and shall not in any way affect the meaning or construction
of this Agreement. Unless otherwise expressly stated herein,
references to Sections and clauses shall refer to Sections and clauses
of this Agreement. Unless the context requires otherwise, references
in this Agreement to a document shall include the schedules, exhibits
and other attachments to such document.
d. The relationship between Buyer and Agfa is solely that of
independent contracting parties, and Buyer is not or shall not be
construed to be a partner, joint venturer, fiduciary, employee, agent,
franchisee, licensee, or representative of Agfa for any purpose
whatsoever. This Agreement does not create, nor is it intended to
create, a fiduciary relationship or any fiduciary obligations by
either party to the other. Buyer shall not have any authority to
assume or create any liability, obligation or responsibility, express
or implied, on behalf of or in the name of Agfa or to bind Agfa in any
manner whatsoever, except on authority specifically so delegated, and
Buyer shall not represent to the contrary to any person.
e. This Agreement shall be governed by and construed according to the
laws of the State of New Jersey without regard to conflict of law
principles. Any legal action relating to this Agreement, or otherwise
arising out of the parties' contemplated business relationship
hereunder, will be venued exclusively in the State or Federal courts
in New Jersey.
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f. The prevailing party in any legal action based upon this Agreement
shall pay to the other party to this Agreement all costs and expenses
of litigation caused by the other party's breach of any provision of
this agreement, including without limitation reasonable attorneys'
fees.
g. Subrogation: In the event of any payment, replacement, or other
satisfaction for damaged, lost, or destroyed goods under this
agreement, Seller shall be subrogated to all of Buyer's rights of
recovery therefore against any person or `organization. Buyer shall
execute and deliver any and all instruments and papers and do whatever
else is necessary to secure such rights. Buyer shall not do anything
to prejudice such rights.
10
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date(s)
stated below, but this Agreement shall be effective as of the date first written
above:
AGFA CORPORATION PCA INTERNATIONAL, INC.
/s/ Xxxx Xxxx /s/ Xxxxx X. Xxxx
-------------------------------------- --------------------------------------
(Signature) (Signature)
President AGFA Corp CI CEO
-------------------------------------- --------------------------------------
(Title) (Title)
3/19/02 3/19/02
-------------------------------------- --------------------------------------
(Date) (Date)
11
PCA INTERNATIONAL, INC.
2002 SALES CONTRACT
SCHEDULE A
PRICING SCHEDULE AND PAYMENT TERMS
PRICES AND TERMS (as referred to in Section 5 of the Agreement):
a. The price of the Agfa Paper to be sold by Agfa and purchased
by Buyer pursuant to this Agreement shall be [***] per square foot Type
11 or equivalent.
b. The prices of the Agfa Film to be sold by Agfa and purchased
by Buyer pursuant to this Agreement shall be as follows:
XPS 160 long roll 100 foot 35mm unperf. - [***] per roll
XPS 160 long roll 100 foot 46mm unperf. - [***] per roll
c. The prices of the Agfa Chemistries to be sold by Agfa and
purchased by Buyer pursuant to this Agreement shall be [***] discount
from the net price on the then-current Consumer Imaging price list. A
copy of the current Consumer Imaging price list for chemistry is
attached as Schedule B.
d. Terms of payment for the Agfa Products to be purchased
hereunder shall be as follows:
Orders shipped between February 4, 2002 and February 2, 2003,
inclusive: Invoices due Net 270 days from Date of Invoice.
Orders shipped between February 3, 2003 and February 1, 2004,
inclusive: Invoices due Net 210 days from Date of Invoice.
Orders shipped between February 2, 2004 and January 30, 2005,
inclusive: Invoices due Net 180 days from Date of Invoice.
Orders shipped between January 31, 2005 and January 28, 2007,
inclusive: Invoices due Net 90 days from Date of Invoice.
e. Agfa recognizes that PCA is currently the exclusive vendor of
portrait photography services to Wal-Mart, and, as such, is committed
to such growth and expansion of its permanent studios as Wal-Mart may
request. Because PCA's capital resources may become temporarily
strained as a result of such expansion from time to time, Agfa has
agreed (see Sections 8 and 12(b)(iii) hereof) to provide Buyer written
notice and allow Buyer thirty (30) days opportunity to cure defaults in
payments before Agfa may suspend further deliveries or terminate this
Agreement for such payment default.
f. Payments may but shall not be required to be made to Agfa by
electronic wire transfer.
g. Prices as stated herein shall remain in effect for the period
of this Agreement.
ADVERTISING ALLOWANCE (as referred to in Section 6 of the Agreement):
From the Effective Date until January 31, 2004, Buyer will receive an
advertising allowance rebate of [***] of the Actual Purchases (the "Advertising
Allowance"). For orders shipped between February 1, 2004, and January 28, 2007,
Buyer's Advertising Allowance shall be credited directly on the invoice with a
[***] discount off of the prices listed on this Schedule A in lieu of the
advertising allowance rebates.
-----------------------------------
[***] Redacted pursuant to a request for confidential treatment.
12
WAREHOUSE COSTS (as referred to in Section 7(d) of the Agreement):
Agfa shall be responsible for any Warehouse costs which exceed [***] in any
calendar year, provided, further, that in no event shall Agfa be required to pay
more than [***] in Warehouse Costs in any calendar year unless Agfa specifically
agrees in writing to pay Warehouse Costs in excess of such amount in connection
with one or more particular purchase orders.
MINILAB PAYMENT:
PCA will pay Agfa [***] within ten (10) days of signing this Agreement for the
MSC300 minilab and other equipment and accessories listed on Schedule D attached
hereto and incorporated herein (the "Equipment").
ANTICIPATED VOLUMES OF PRODUCTS ORDERED BY BUYER
Buyer's projected 60-month gross purchase volume (based on anticipated
requirements) for color paper, film, and chemistry before the Advertising
Allowance is [***].
The projected purchase volume is broken down as follows by time periods:
Projected
Time Period Purchase Volume
----------- ---------------
From the Effective Date through Jan. 3l, 2003 [***]
From Feb. 1, 2003 through Jan. 31, 2004 [***]
From Feb. 1, 2004 through Jan. 31, 2005 [***]
From Feb. 1, 2005 through Jan. 31, 2006 [***]
From Feb. 1, 2006 through Jan. 31, 2007 [***]
-----
TOTAL [***]
The projected purchase volume is broken down as follows by Products:
Color Paper [***]
Film [***]
Chemistry [***]
------------
TOTAL [***]
[***]
[***]
[***]
[***]
[***]
-----------------------------------
[***] Redacted pursuant to a request for confidential treatment.
13
PCA INTERNATIONAL, INC.
2002 SALES CONTRACT
Agfacolor Chemical Price list - Effective May 1, 2001
SCHEDULE B
Catalog # Description Size Case Q. List
--------- ----------- ---- ------- ----
5GY6E 70 CD-R f. 2 x 12.5 Gallon 1 78.68
BTR5T 70 CD-XX x. 2 x 50 Liter 1 147.26
BQDBT 70 CD-LR Part A f. 300 Liter 1 141.56
BQDCV 70 CD-LR Parts B/C f. 300 Liter 1 141.56
XXXXX 00 XXXXX XX-X f. 6 x 50 Liter 1 86.49
B55UG 70 LIGHT BL-R 10 Gallon 1 147.58
B278R 70 LIGHT BL-J f. 6 x 50 Liter 1 134.72
5CNFL 70,BL-J/LE f. 3 x 100 Liter 1 86.49
BPBYO FX-Universal 3 x 5 Liter 1 19.80
BPBZQ FX-Universal 60 Liter 1 69.74
5GX7C XXXXXX-X 00 Xxxxx Xxxx 1 115.00
S9YGO 70 Fl XX x. 9 x 5 Liter 1 16.44
BlY14 70 FI XX x. 6 x 12.5 Xxxxx 1 21.70
BW97Q, 71 CD-R f. 4 x 10 Liter 1 42.64
B934Q 71/72 CD-XX x. 4 x 10 Liter 1 73.47
BW98S 71 BL-R f. 2 x 5 Liter 1 42.77
BW99U 71 FX-R f. 2 x 10 Liter 1 12.31
5D4ZW 71/72 SB-R XX x. 16 x 10 Liter 1 32.51
5DRU5 FP 100 Tank Kit 1 85.00
5G9UX FP 200/210 Tank CD 2X 1 59.38
5G9VZ FP 200/210 Tank BL 2X 1 59.38
5G9W2 FP 200/210 Tank FX 2X 1 59.38
5G9X4 FP 200/210 Tank SB 2X 1 11.88
5G9Y6 fp.210 Easy Film Box I CD 4X 1 76.05
5G9Z8 fp.210 Easy Film Xxx 0 XX-XX-XX 0X 0 00.00
X000X 00 XX-X f. 2 x 5 Liter 74.61
B937W 72 FX-R f. 2 x 10 Liter 27.74
BI8Z5 72 FX-R f. 120 Liter (1) 1 145.44
5D7BV 72 SB-R XX x. 6 x 50 Liter 1 59.99
BZXWJ 73 BL-R f. 8 Liter 1 26.12
BZXXL 73 FX-R f. 3 x 8 Liter 1 23.53
S9X1P Acetic Acid 60% 3 x 5 Liter 40.48
S9YEK 70 LIGHT BL-S f. 2x 100L 1 13.66
BUX5S AP 70/71/72/73 Process Control Pack of 25 1 13.20
Strips
FFTJL QC Networks for Windows 1 600.00
5GIRS XXX 000 Tank Kit w/tools 1 91.60
5GZ17 XXX 000 Tank Kit 128.88
B8KUR XXX 000 F-CD Repl. f 4x5L 36.74
B8KVT XXX 000 F-BL Repl. f.2x5L 74.61
B8KWV XXX 000 F-FX Repl. f 2x5L 13.87
5D41Y XXX 000 F-SB LF Repl. f 16x5L 16.25
B8KYZ XXX 000 P-CD Repl. f. 3 x 5 L 67.44
5FFUB MSC 100-MSC 300 P-CD Repl. f. 2 x 50 L 1 399.99
5C3EC XXX 000 P-BX Repl. f. 4 x 5 L 1 59.10
5FFT8 MSC 100-MSC 300 P-BX Repl. f. 50 L 1 139.99
5E988 XXX 000 P-SB Repl. f. 16 x 5 L 1 76.69
5FFS6 MSC 100-MSC 300 P-SB Repl. f. 6 x 50 L 1 268.75
14
Catalog # Description Size Case Q. List
--------- ----------- ---- ------- ----
5FFXH MSC 200/MSC 300 P-CD Repl. f. 3 x 10 L 1 134-88
5FFWF MSC 200/MSC 300 P-BX Repl. f. 4 x 20 L 1 117.99
5FFVD MSC 200/MSC 300 P-SB Repl. f. 8 x 20 L 1 143.33
5FFYK MSC 200/MSC 300/d-lab.3 Tank Kit 1 156.45
5FPKS d-lab.3 P-CD Repl. f. 3 x 10 L 1 141.62
0XXXX x-xxx.0 P-BX Repl. f. 4 x 20 L 1 123.89
5FPMW d-lab.3 P-SB Repl. f. 8 x 20 L 1 150.51
5G91B d-lab. 2 Easy Paper Box (2x f. 150 sqm/1,615 sqft 1 146.15
CD,BX,SB)
BYPKL 71/72/MSC 101 CD - Starter 6 x 8 oz 1 26.19
5FXFJ 71 CD Universal Starter 6 x 10 Liter 1 18.20
BYPMP 71/72/MSC 101 BL - Starter 6 x 8 oz 1 26.19
5FXEG 71 BL-Universal Starter 6 x 10 Liter 1 55.33
BZQ9E Paper Process Control Strips Pack of 25 1 28.05
B2PSS 94 CD-R Prof. f. 2 x 20 Liter 1 54.32
B2PTU 94 CD-R Prof. f. 100 Liter 1 141.34
5GJJ8 94 BX-MR Prof. Part A f. 100 L 1 47.15
5GJK.B 94 BX-MR Prof. Part B f. 100 L 1 47.15
5E3VS 94 SB-R (I -part) f. 12 x 10 Liter 1 114.66
5GY5C 94 SB-R f. 8 x 12.5 Gallon 1 124.42
5F16E 94 CD-LR 1 -Part f. 6 x 10 Liter 1 106.28
5GYWU 94 CD-XX x. 25 Gallon 1 136.20
5GYAL 94 CD-LR Part A f. 300 Liter 1 122.40
5GYCP 94 CD-LR Part B f. 300 Liter 1 98.62
BIF8D 94 CD-J Part A 60L Conc. f. 1370 Gallon 1 1800.29
B20TQ 94 CD-J Part B 60L Conc. f. 1237 Gallon 1 1583.02
BIGAK 94 CD-J Part C 60L Conc. f. 818 Gallon 1 310.40
5DSC8 94 BX-MR f. 4 x 10 Liter 1 60.37
5GY37 94 BX-MR Part A f. 25 Gallon 1 36.43
5GY4A 94 BX-MR Part B f. 25 Gallon 1 52.88
5F17G 94 CD-LOR - I-Part f. 4 x 10 Liter 1 179.85
B6W8J 94 CD-LOR f. 2 x 50 Liter 1 365.33
5C3DA 94 BX-LOR f. 4 x 10 Liter 1 117.99
5GYXW 94 BX-NR Part A f. 20 Gallon 1 28.53
5GYYY 94 BX-NR Part B f. 20 Gallon 1 64.47
5GYZI 94 BX-NR Part C f. 20 Gallon 1 20.70
5GYFV 94 Light BL-J 60 Liter 1 400.77
5GYGX 94 Light BL-J 200 Liter 1 1645.56
B3CI2 94 CD-LR Starter I Gallon 1 27.32
BY69Y 94 CD-LR Starter f. 100 Liter 1 18.05
S9YLW 94 CD-LOR Starter f. 2 x 60 Liter 1 25.98
B4XWH 44 FD-R f. 4 x 10 Liter 1 41.56
BQ30G 44 FD-R f. 100 Liter 1 81.27
B4XVF 44 CD-R f. 4 x 10 Liter 1 55.18
BQ3QL 44 CD-R Cube Part A f. 100 Liter 1 52.83
BQ3RN 44 CD-R Cube Part B f. 100 Liter 1 52.83
S9YRA 44 RE f. 6 x 5 Liter 1 10.59
BQ3PJ 44 RE f. 400 Liter 1 74.21
S94U2 44 BC f. 12 x 5 Liter 1 29.70
BQ3SP 44 BC f. 100 Liter 1 30.44
B4XUD 44 BL-R f. 2 x 7.5 Liter 1 101.15
BQ3TR 44 BL-R f. 30 Liter: 1 173.77
S94TZ 44 FX f. 12 x 5 Liter 1 28.14
15
Catalog # Description Size Case Q. List
--------- ----------- ---- ------- ----
BQ3VV 44 FI XX x. 500 Liter 1 12.32
S9YUG 44 FD-S Starter 2 x 200 Liter 1 19.32
S9YTE 44 CD-S-Starter f. 2 x 200 Liter 1 19.32
S9YSC 44 BL-S Starter f. 250 Liter 1 34.40
BRAK6 AP 44 Process Control Strips Pack of 25 1 24.48
S94PR Rodinal 8 x 125 ml 1 33.87
S94RV Rodinal 4 x 500 ml 1 27.44
S94YB Studional Liquid f. 12 x 16 Liter 1 150.92
B8RDN Multicontrast Fixer 3 x 5 Liter 1 36.80
B3MWW Multicontrast Developer 3 x 5 L 1 49.95
B31\4US Multicontrast Developer 6 x 500 ml 1 11.42
S94QT Neutol Liquid WA 4 x 500 ml 1 16.56
BVMHD Neutol Liquid WA f. 6x 10 L 1 36.14
5A71M Neutol plus 6 x 1 Liter 1 21.90
5BQ43 Neutol plus / XXX 0 x 0 X 0 00.00
X0X0X XX Additive (Bleach Fix Topping 1 19.58
Solution) 5 Liter
5FSXX Viradon Toner 8x125mI 1 29.20
S9YBD Sistan 12x 1 Liter 1 134.85
S9YDH Agepon Super 1x500ml 1 71.09
16
PCA INTERNATIONAL, INC.
2002 SALES CONTRACT
SCHEDULE C
XXX 000 Equipment List
Serial Number 669
----------------------------------------------------------------------------------------
Material Description Qty. Unit Price Total
-------- ----------- ---- ---------- -----
----------------
5AL6D000 APS FPS 1 $ 27.05 $ 27.05
5BQVM000 PAPER MAGAZINES 3 $ 298.00 $ 894.00
5BTIA000 DPU 1 $ 10,422.40 $ 10,422.40
5CL3O046 IXTASY 600 SYSTEM 1 $ 2,828.81 $ 2,828.81
5CL7W072 AGFA DIGIPIX SOFTWARE 1 $ 350.00 $ 350.00
5CL7W082 AGFA DIGIPIX SCANNER 1 $ 2,400.00 $ 2,400.00
5CL7W090 IXTASY XXXXX 0 $ 692.57 $ 692.57
5CPM6000 FP200 1 $ 5,236.36 $ 5,236.36
5CY4B000 IMAGE PROCESSOR 1 $ 1,521.54 $ 1,521.54
5CYK5000 FP 100/FP200 TECH DOCS 1 $ 0.01 $ 0.01
5DSFF000 INOVA SSFDC ADAPTER 1 $ 31.68 $ 31.68
5DSGH000 COMPACT FLASH CARD ADAPTER 1 $ 26.54 $ 26.54
5ERVN000 DPU TECH. DOCS 1 $ 0.01 $ 0.01
5EPMO000 MSC300 TECH DOCS 1 $ 0.01 $ 0.01
7244000 ACCESSORY KEYBOARD 1 $ 157.06 $ 157.06
B874Y214 FILM HANDLING KIT APS26201 1 $ 549.37 $ 549.37
B874Y506 SV-3120 STATICVAC 1 $ 212.50 $ 212.50
B874Y513 TWIN CHECK DISPENSER 1 $ 11.68 $ 11.68
B874Y514 SEMI AUTOMATIC FILM SLEEVER 1 $ 418.50 $ 418.50
B874Y519 FILM RACK 6 TRACK SYSTEM 2 $ 55.50 $ 111.00
B874Y526 CHANGING BAG 1 $ 21.00 $ 21.00
B874Y529 SILVER SPONGE UNIT 1 $ 700.00 $ 700.00
B8751710 WORKING KIT 2 $ 23.50 $ 47.00
SJACL000 MSC300 FN#669 1 $ 40,000.00 $ 40,000.00
5GB2H000 X- XXX 0 $ 3,000.00 $ 3,000.00
5ALGW003 INOVA SPECTRA PIX 1 $ 2,212.50 $ 2,212.50
5CL3O066 PIXTASY 866 SYSTEM 1 $ 3,128.41 $ 3,128.41
------------------------------------------------------------------------
Total $ 75,000.00
----------------------------------------------------------------------------------------
17
