EXHIBIT 10
BASF Corporation
Sales Contract
DATE June 14, 2001
BASF Corporation, Mount Olive, New Jersey, SELLER, hereby agrees to sell to:
Paragon Trade Brands, Inc., Norcross, Ga., BUYER, and said BUYER hereby agrees
to purchase from the SELLER for shipment to: Harmony, PA; Macon, GA; Waco, TX;
Tijuana, MX.
PRODUCT: HySorb 7700 and HySorb 7710
QUANTITY: 100% of Buyer's requirements to all of its sites (including its
requirements for the joint venture. Paragon Mabesa International in Mexico).
2001 volume estimated at [***]
PACKAGE: 1900 lb. super sacks
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TRANSPORTATION
TERMS: Ex works Seller's Portsmouth, VA plant, transportation pre-paid and added
on to invoice. At Buyer's option, Buyer may change carrier terms to collect with
prior notice to Seller.
TERMS OF PAYMENT: Net cash within 30 days from date of shipment. Payment to be
made by electronic funds transfer ("EFT") once the parties sign a mutually
agreed to EFT contract. Once the parties have signed an EFT contract, the
parties agree to terms of 1%/10, Net 30 days from date of invoice.
SHIPMENT: As ordered by Buyer in approximately equal monthly quantities,
unless otherwise stated in the following schedule, during the
period beginning April 1, 2001 and ending March 31, 2004. Seller
may require at least 30 days prior notice of quantity to be
shipped during each calendar month.
THIS SALES CONTRACT SUPERSEDES ANY AND ALL OTHER CONTRACTS
BETWEEN THE PARTIES FOR THE SALE OF SUPERABSORBENT POLYMER
("SAP") PRODUCTS INCLUDING BUT NOT LIMITED TO THE SALES CONTRACT
BETWEEN CLARIANT CORPORATION, WHICH WAS ASSIGNED TO SELLER, AND
BUYER DATED APRIL 30, 1998.
SHIPPING SCHEDULE: As determined between Seller and Buyer through the use of
Supplier Managed Inventory (SMI).
TERMS AND CONDITIONS: THE TERMS AND CONDITIONS PRINTED ON THE REVERSE SIDE
HEREOF ARE HEREBY INCORPORATED IN AND MADE A PART OF
THIS CONTRACT.
This contract not valid unless countersigned by BASF
Corporation.
ACCEPTED:
Paragon Trade Brands, Inc. BASF Corporation
BY /s/ (Illegible) BY /s/ M. Xxx Xxxxx 6/14/01
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TITLE Vice President, Corporate
Materials and Technology,
Purchasing & Supply Mgmt.
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DATE June 14, 2001 BY /s/ (Illegible) 6/19/01
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[***] Confidential Treatment Requested
TERMS AND CONDITIONS REFERRED TO ON REVERSE SIDE
1. Payment to be made to Seller addressed as indicated on invoice, in lawful
money of the United States. Acceptance by Seller of bank draft, checks, or
other media of payment will be subject to immediate collection of the full
face amount thereof.
2. Each delivery, at the option of Seller shall constitute a separate sale with
the same effect as though made under a separate contract covering only the
amount thereof. If Buyer is in default with respect to any of the terms or
conditions of this contract Seller may at its option defer further shipments
hereunder until such defaults be remedied or without prejudice to any other
legal remedy may decline further performance hereof.
3. Unless otherwise expressly stated herein, during each calendar month during
the term hereof, Buyer shall purchase and receive no less than 90% of 1/12th
of the annual quantity estimate of product(s) shown on the face hereof, and
Seller shall be obligated to sell and deliver hereunder no more than 110% of
1/12th of such annual quantity estimate of product(s).
In the event Buyer purchases less than the above-stated minimum quantity of
product(s) during any calendar month (for reasons other than those excused
under Paragraph 4, below), Seller may, without prejudice to Seller's other
legal remedies, reduce the quantity of product(s) Seller is obligated to
supply during each calendar month thereafter during the term hereof to 110%
of the lesser quantity actually purchased by Buyer in said month.
4. Failure of Seller to make, or Buyer to take, any one or more deliveries when
due, if caused by fire, storms, floods, strikes, lockouts, accidents, war,
riots, or civil commotions, inability to obtain railroad cars or raw
materials, embargoes, any State or Federal regulation, law, or restriction,
seizure or requisition of products specified in this contract by the
Government of the United States or of any state, or of any agency thereof or
by reason of any compliance with a demand or request for such product for
any purpose for national defense, or any other cause or contingency beyond
the reasonable control of said party (whether or not of the same kind or
nature as the causes or contingencies above enumerated) shall not subject
the party so failing to any liability to the other and the total contract
quantity shall be reduced to the extent of the deliveries so omitted.
5. In addition to the purchase price(s), Buyer shall pay Seller any and all
government taxes and/or charges of every kind that Seller may be required to
pay with respect to the production, processing, transportation, storage,
delivery, and/or sale of product(s) delivered hereunder and with respect to
any material(s) used in the manufacture thereof. Buyer shall provide Seller
on request, with properly completed exemption certificates for any tax from
which Buyer claims exemption.
6. [***]
7. To the extent any freight cost is for Buyer's account hereunder any upward
or downward revisions of the freight charges, during the life of this
contract, shall also be for Buyer's account effective as of the date of any
such revisions.
8. Buyer assumes full liability and responsibility for compliance with Federal,
State, Municipal and local laws, ordinances and regulations governing
unloading, discharge, storage, and handling of product(s) supplied by Seller
under this contract and agrees to hold Seller harmless against any claim,
demand or cause of action for personal injury or property damage arising
from or attributable to such unloading, discharge, storage, and handling.
Seller assumes no liability for failure of discharge or unloading implements
or materials used by Buyer whether or not supplied by Seller.
9. Seller makes no warranty of any kind, either express or implied, by fact or
law, other than its obligation to deliver product(s) complying with
seller's published specifications and other than seller's implied warranties
of title, freedom from encumbrance, and right to transfer same, seller makes
no warranty of fitness for a particular purpose, or warranty of
merchantability other than as stated herein.
10. Seller shall in no event be liable for any incidental or consequential
damages, seller's liability and buyer's exclusive remedy for any cause of
action arising out of this contract is expressly limited to replacement of
non-conforming product(s) or payment in an amount not to exceed the purchase
price of the specific product(s) for which damages are claimed, at seller's
option.
11. [***]
12. In the event of Seller's inability, for any reason, to supply the quantities
of product(s) specified herein. Seller may allocate its available supply
among its purchasers, including departments and divisions of Seller, on such
basis as Seller may deem fair and practical without liability to Buyer for
any failure of performance which may result therefrom.
13. Buyer shall inspect product(s) supplied hereunder immediately after
delivery. Buyer's failure to give notice to Seller of any claim within
thirty (30) days after the date of delivery shall constitute unqualified
acceptance of such product(s) and a waiver by Buyer of all claims with
respect thereto.
14. Seller hereby agrees that the materials produced hereunder shall be in
compliance with all applicable requirements of Sections 6, 7, and 12 of the
Fair Labor Standards Act, as amended, and of Regulations and Orders of the
United States Department of Labor issued under Section 14 thereof and agrees
to so certify on its invoices if so directed by Buyer.
15. If at anytime the financial responsibility of Buyer or the credit risk
involved, shall become unsatisfactory to Seller, Seller may require cash or
satisfactory security upon subsequent shipments or deliveries hereunder. The
election by Seller to require such cash or security shall not impair the
obligation of Buyer to take and pay for the contracted materials.
16. This contract shall bind and inure to the benefit of the executors,
administrators, successors and assigns of the respective parties hereto.
17. This contract shall take effect and be construed in accordance with the laws
of the State of New Jersey. This contract constitutes the entire agreement
between the parties hereto with respect to the sale and purchase of the
product(s) shown on the face hereof, and supersedes and cancels any and all
prior contracts or understandings between the parties concerning the sale
and purchase of such product(s).
18. No modification or waiver of the Terms and Conditions of Sale hereof shall
be effective unless made in writing signed by authorized representatives of
both parties.
19. [***] "Competitive Cost", as that term is used herein, shall mean the price
per gram of Product equal or superior quality, or a substitute SAP product
of similar or better quality, used in Buyer's diaper and/or any other of
its absorbent products, times the number of grams required per diaper. The
method for evaluating competitive cost is determined by Buyer's current
test methods as agreed to by Seller in writing.
20. If at any time during the life of this contract, Seller sells Product to
another party for use and consumption in the United States, under the terms
and conditions substantially similar to the terms and conditions stated
herein, for the same end use as that which is intended by Buyer, and in
quantities that are the same or less than those contracted for hereunder,
and the F.O.B. (or delivered) price paid by such other party is lower than
the F.O.B. (or delivered) price paid by Buyer hereunder (excluding,
however, lower prices justified under the Xxxxxxxx-Xxxxxx Act), then the
price to Buyer hereunder will be reduced to such lower price as of the xxxx
Xxxxxx'x deliveries at such lower price commenced for so long as such lower
price is in effect to the other party.
21. TECHNOLOGY CHANGES: If, at any time during the term of this Agreement,
Buyer notifies Seller in writing of its intention to convert its
manufacturing processes to a technology which is not compatible with the
current form of Seller's Product, Seller shall have six (6) months to
provide a compatible product to Buyer. During such period, Buyer shall use
its best efforts to assist Seller in the commercial development of a
compatible product. If, at the end of the six (6) month period, the
parties agree that progress is being made in developing an acceptable
product, they may extend the development period for a mutually agreeable
amount of time. If, on the other hand, the parties agree that a compatible
product cannot be developed within a reasonable period of time. Buyer shall
have the right to reduce the quantities of Product that it is obligated to
purchase under this Agreement by the quantities of alternative product that
Buyer purchases from other sources.
22. Seller agrees that any changes to milling and sifting processes (or any
other raw material/step changes) at Seller's manufacturing facility which
necessitates that Seller change milling and/or shifting equipment or lines
in its manufacturing facility resulting in a change in the Product's
physical properties, even if said change is within the accepted
specification range, shall be communicated to Buyer prior to any such
change being made.
23. On a quarterly basis, Seller agrees to provide the absorbency data using
the statistical sampling procedure (jointly developed by Seller and Buyer)
for the Product sold hereunder.
[***] Confidential Treatment Requested
