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EXHIBIT 10.4
This Agreement is made between:
(1) THE ASSOCIATED OCTEL COMPANY LIMITED having its registered office at
Xxxxx 0, 0xx Xxxxx, Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx Square, London, W1X
6DT, England ("Buyer"); and,
(2) GREAT LAKES CHEMICAL (EUROPE) LIMITED having its registered office at
Xxxxx Avenue, Aycliffe Industrial Estate, Xxxxxx Xxxxxxxx, Xxxxxx, XX0
0XX ("Seller").
WHEREAS:
A) Buyer is in need of anhydrous hydrogen bromide conforming to the
specification set out in Appendix 1 ("Product") for the manufacture of
XXXX; and,
B) Seller desires to supply the Product to Buyer; and,
C) Buyer desires to purchase the Product from Seller;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES, THE UNDERTAKINGS OF THE
PARTIES PURSUANT TO THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, IT
IS AGREED AS FOLLOWS:
1. TERM
1.1 The Term of this Agreement shall commence on the Distribution
Date (as defined in the Transfer and Distribution Agreement)
and shall end on December 31, 2002 ("Term"). Thereafter, the
Term shall automatically extend from year to year, except that
either Party may terminate this Agreement effective on
December 31, 2002, or on any subsequent anniversary of that
date, by providing written notice to the other Party at least
twelve months' prior to the date on which termination is to
become effective.
2. QUANTITY
2.1 Buyer will purchase Product from Seller.
2.2 Buyer's estimated needs for Product are set forth on Appendix
2.
2.3 At least three months before the end of each calendar year,
Buyer shall provide a forecast of its anticipated purchases of
Product during the forthcoming calendar year broken down by
calendar quarter and shall update its forecast requirements on
a quarterly basis for the remainder of the year in question.
3. QUALITY
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3.1 All Product supplied shall conform to the specification shown
in Appendix 1 or any other specification substituted by
written agreement between the parties, as determined by the
analytical methods shown in Appendix 1 or by any other
analytical methods substituted by written agreement between
the parties ("the Product Specification").
3.2 Each separate lot of Product supplied shall be in a homogenous
state immediately prior to being delivered.
3.3 All Product delivered shall be accompanied by a certificate of
analysis signed and dated on behalf of the Seller showing the
lot number, weight, order number and quality parameters as
defined in Appendix 1.
3.4 Buyer shall, at Buyer's expense, upon giving reasonable notice
to Seller, have the right to inspect Seller's quality
assurance procedures as a quality assurance audit.
3.5 Seller shall not make any change in process, facilities, or
raw materials used to manufacture Product in accordance with
ISO procedures, except with the prior consent of Buyer which
shall not be unreasonably withheld.
4. INSPECTION AND LIABILITY LIMITATION
4.1 Promptly after receiving each shipment of Product, Buyer shall
examine such Product for any damage, defect, non-conformance
or shortage. Buyer shall notify Seller within thirty (30) days
of receipt of Product if the Product does not comply with the
Product Specification and Seller shall, upon Buyer's request
and as soon as reasonably possible, replace the non-conforming
Product with Product meeting the Product Specification.
Failure of Buyer to notify Seller within the thirty (30) day
period of non-conformity with such specification shall
constitute irrevocable acceptance of Product by Buyer and
shall ban Buyer from making any claim that such Product is
non-conforming in any respect (under any theory, including
without limitation, negligence, strict liability, contract,
warranty or otherwise).
4.2 Except for breaches of the warranties in Section 11, Buyer's
exclusive remedy shall be for damages, and Seller's total
liability for any and all losses and damages arising out of
any cause whatsoever (whether such cause be based in
contract, negligence, strict liability, other tort or
otherwise) shall in no event exceed the price under this
Agreement for the quantity of Product in respect to which
such cause arises, or at Seller's
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option, the replacement of such Product, and in no event shall
Seller be liable for incidental, consequential or punitive
damages resulting from any such cause.
4.3 If either Party furnishes technical or other advice to the
other Party, whether or not at the request of the Party
receiving the technical or other advice, with respect to
processing, further manufacture, other use or resale of the
Products, the Party supplying the advice shall not be liable
for, and the Party receiving the advice assumes all risk of,
such advice and the results which flow from it.
5. PRICES
5.1 The pricing for product supplied shall, unless otherwise
agreed in writing, be the pricing shown in Appendix 3.
5.2 The pricing shown on Appendix 3 does not include value added
tax now or hereafter levied, which shall be for Buyer's
account. Neither Party shall be liable for any tax imposed
upon the other Party's income or privilege of doing business.
6. PURCHASE ORDERS
6.1 Buyer shall purchase Product from Seller as evenly as possible
during the course of each year consistent with its needs.
Buyer shall place written orders on Seller for Product not
less than thirty days before the required delivery date and
Seller shall deliver such Product in accordance with Buyer's
orders. Seller's maximum delivery obligation hereunder is set
forth in section App. 4.1 of Appendix 4.
7. DELIVERIES
7.1 Seller shall deliver Product in approved cylinders supplied by
Seller.
7.2 Delivery shall be made CPT (Incoterms, 1990) Buyer's plant at
Ellesmere Port. Title shall pass upon delivery.
8. INVOICES
8.1 Invoices shall be submitted to Buyer at X.X. Xxx 00, Xxx Xxxxx
Xxxx, Xxxxxxxxx Port, South Wirral, L65 4HF, England or such
other address as Buyer shall notify to Seller.
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9. TERMS OF PAYMENT
9.1 Payment shall be made on or before the 30th day of the month
following the month of invoice by electronic transfer to a
bank account nominated in writing by Seller to Buyer.
10. ADDITIONAL MATTERS
10.1 Buyer and Seller shall have the rights set forth in section
App. 4.2 of Appendix 4
10.2 Buyer and Seller shall have the rights set forth in section
App. 4.3 of Appendix 4.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Seller warrants to Buyer that the manufacture and delivery of
Product will not infringe any patent, trademark, copyright,
trade secret or other intellectual property rights of any
third party in any jurisdiction . Buyer warrants to Seller
that use, reuse, further manufacture, sale or resale of the
Product will not infringe the patent, trademark, copyright,
trade secret or other intellectual property rights of any
third party in any jurisdiction. Each Party (the Indemnifying
Party) shall defend, indemnify, and save harmless the other
Party, its Affiliates, and their respective officers,
directors and employees from and against any loss, damage,
liability or expense (including attorneys fees) arising from
any breach of either of the foregoing warranties made by the
Indemnifying Party.
12. FORCE MAJEURE
12.1 Seller's failure or inability to make, or Buyer's failure or
inability to take or be able to use, any delivery or
deliveries when due, or the failure or inability of either
party to effect timely performance of any other obligation
required of it hereunder, if caused by a "force majeure" as
hereinafter defined, shall not constitute a default hereunder
or subject the party affected by the force majeure to any
liability to the other; provided, however, that such excuse
for the force majeure shall only apply if (a) the party so
affected shall promptly notify the other of the existence
thereof, of its expected duration, and of the estimated
effect thereof upon its ability to perform its obligations
hereunder, and (b) such party proceeds in a commercially
reasonable manner to overcome the same promptly. Such party
shall promptly notify the other party when such force majeure
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circumstance has ceased to affect its ability to perform its
obligations hereunder. The quantity to be delivered hereunder
shall be reduced to the extent of the deliveries omitted for
such cause or causes, unless both parties agree that the total
quantity to be delivered hereunder shall remain unchanged.
During a force majeure period, Seller will allocate its total
production of such goods among its various requirements
therefore (e.g., manufacturing and sales) in an equitable
manner. During the time that Seller is unable to make
deliveries or otherwise perform, it shall not be obligated to
procure, or to use its best efforts to procure, any quantity
of goods sold hereunder from any alternate producer or
supplier. As used herein, the term "force majeure" shall mean
and include any act of God, nature or the public enemy;
accident; explosion; operational malfunction or interruption;
fire; storm; earthquake; flood; drought; perils of the sea;
strikes; lockouts or labor disputes; riots; sabotage; embargo;
war (whether or not declared and whether or not the United
Kingdom is a participant); legal restriction or limitation or
compliance therewith; failure or delay of transportation;
shortage of, or inability to obtain, raw materials, supplies,
equipment, fuel, power, labor, or other operational necessity;
interruption or curtailment of power supply; or any other
circumstance beyond the reasonable control of the party
affected thereby. A party shall not be required to resolve
labor disputes, or disputes with suppliers of raw materials,
supplies, equipment, fuel or power, except in accordance with
such party's business judgment as to its best interest.
13. TERMINATION
13.1 Either Party shall have the right to terminate this Agreement
effective upon written notice to the other Party (the
Defaulting Party) if one or more of the following described
events of default shall occur:
13.1.1 the Defaulting Party shall fail to materially comply
with any term or requirement contained in this
Agreement and such failure to comply shall not have
been cured thirty (30) days after written notice
thereof to the Defaulting Party provided, however,
that: (1) in the event a failure to comply cannot be
cured within thirty days, this Agreement shall not
be subject to termination under this provision if
the Defaulting Party commences, and thereafter
diligently pursues, a cure within the thirty day
period; and, (2) no advance written notice or
opportunity to cure shall be necessary in order to
terminate this Agreement pursuant to Sections 13.1.2
through 13.1.7; or
13.1.2 the filing by the Defaulting Party of a voluntary
petition in
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bankruptcy or a voluntary petition or answer seeking
reorganization, rearrangement or readjustment of its
debts or for any other relief under the bankruptcy or
insolvency act or law of any jurisdiction, now or
hereafter existing, or any other agreement by the
Defaulting Party indicating consent to, approval or
acquiescence in, any such petition or proceeding; or
13.1.3 the application by the Defaulting Party or the
consent or acquiescence of the Defaulting Party in
the appointment of a receiver or trustee for all or a
substantial part of any of its properties; or
13.1.4 The making by the Defaulting Party of a general
assignment for the benefit of creditors; or
13.1.5 the inability of the Defaulting Party or the
admission of the Defaulting Party in writing of its
inability to pay its debts as they mature; or
13.1.6 the filing of an involuntary petition against the
Defaulting Party seeking reorganization,
rearrangement or readjustment of its debts, or for
any other relief under the bankruptcy or insolvency
act or law of any jurisdiction, now or hereafter
existing, or the involuntary appointment of a
receiver or trustee of the Defaulting Party for all
or a substantial part of its property or assets, or
the issuance of a warrant of attachment or execution
of similar process against a substantial part of the
property of the Defaulting Party and the continuance
of such for sixty (60) days undismissed or
undischarged; provided, however, that in the event of
an appointment of a receiver or trustee, this
Agreement shall not terminate if the receiver or
trustee agrees to assume the Defaulting Party's
liabilities and obligations under this Agreement; or
13.1.7 the assignment by the Defaulting Party of this
Agreement or any of its rights under this Agreement
in violation of Paragraph 17 (ASSIGNMENTS).
13.2 Rights Surviving Termination. The termination of this
Agreement shall not affect the rights and liabilities of
either Party arising during the period for which it is
effective or release either from the obligation to pay arising
under this Agreement during its effective period.
14. ENTIRE AGREEMENT, MODIFICATION
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14.1 This Agreement constitutes the entire understanding between
the parties and there are no other agreements or
understandings, written or oral, between the parties with
respect to the subject matter of this Agreement.
14.2 The Parties contemplate that, from time to time during the
term of this Agreement, either or both of the Parties will
utilize various documents in order to conveniently facilitate
the purchase and delivery of Product, and that these documents
(including, but not limited to, purchase orders, delivery
orders and negotiable and non-negotiable instruments of title)
may include terms and conditions different from those of this
Agreement. The Parties agree that these documents shall not
modify the terms and conditions of this Agreement, and that
terms and conditions contained in such documents which purport
to modify this Agreement shall have no force or effect. The
Parties also contemplate that there will be routine dealings
between their employees. Each party acknowledges that the
employees of the other party have no authority to waive,
modify or interpret this Agreement. Each party agrees that
statements, representations, warranties and promises of the
other party's employees supplemental to, or varying from, the
terms and conditions of this Agreement shall not be binding
and each party shall conduct its business without reliance
upon or regard to such statements, representations,
warranties and promises.
14.3 This Agreement may be modified only by a written document
signed by both of the Parties which specifically references
this Section 14 and this subsection 14.3 cannot be orally
waived or modified.
15. WAIVER
15.1 No waiver, acquiescence or forbearance by either party hereto
of any breach or default this Agreement, and no course of
conduct or dealings between the parties which varies from the
terms and conditions of this Agreement, shall: (i) be deemed a
waiver as to any subsequent and/or similar breach or default
by either party; or, (ii) constitute or be deemed a
modification of this Agreement; or, (iii) affect the rights or
obligations of the parties under this Agreement in any way.
16. INDEMNITY
16.1 Buyer shall defend, indemnify and hold Seller, its Affiliates
and their
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respective officers, employees, affiliates, successors or
assigns, harmless from and against any and all suits, claims,
losses, liabilities, demands, judgments, costs, fines,
penalties or expenses (including, without limitation,
attorneys' fees) with respect to bodily injury, personal
injury, property damage or economic injury sustained by any
person and resulting or arising, or allegedly resulting or
arising, directly or indirectly, from the sale,
transportation, possession, processing, treatment, storage,
disposal, further manufacture, use, other reuse or resale of
the Product delivered to Buyer by Seller or any other product
incorporating the Product. This provision shall survive
expiration or other termination of this Agreement and shall be
unlimited in amount.
17. ASSIGNABILITY
17.1 Neither party shall without the consent in writing of the
other party assign any of its rights or obligations arising
from this agreement, such consent not to be unreasonably
withheld or delayed.
18. NOTICES
18.1 Notices and other communications sent by either party to the
other in pursuance of the provisions of this agreement shall
be in writing and shall be sent to the recipient at the
address shown above as its registered office or at such other
address as either party may notify the other in writing is to
be substituted as the address of the notifying party. Where
Buyer is the recipient a copy shall also be sent to Buyer at
X.X. Xxx 00, Xxx Xxxxx Xxxx, Xxxxxxxxx Port, South Wirral, X00
0XX, Xxxxxxx to the attention of both the Purchasing Manager
and the Company Secretary.
The copy to the Company Secretary shall be sent by facsimile
to 151-356-6298 or such other number as may be notified from
time to time.
19. INTERPRETATION
19.1 The headings of the clauses of this agreement have been
inserted for convenience only and they shall not affect its
interpretation.
20. DISPUTES
20.1 Any disputes between the parties arising out of or in
connection with this agreement shall be referred to the chief
executive officers of the parties (or their nominees) for
resolution. Failing such resolution, such disputes shall
be settled by alternative dispute resolution or arbitration,
if both parties agree to such a course, but failing agreement
such disputes shall
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be settled by the English courts applying English Law.
On behalf of THE ASSOCIATED OCTEL COMPANY LIMITED
Signature:__________________________________
Name:_______________________________________
Position:___________________________________
Date:_______________________________________
On behalf of GREAT LAKES CHEMICAL (EUROPE) LIMITED
Signature:__________________________________
Name:_______________________________________
Position:___________________________________
Date:_______________________________________
