Confidential Treatment Requested' GARMENT MANUFACTURER & SELLER LICENSE AGREEMENT BETWEEN E. I. DUPONT DE NEMOURS AND COMPANY 1007 MARKET STREET WILMINGTON, DELAWARE 19898 A DELAWARE CORPORATION ("DUPONT") AND LAKELAND INDUSTRIES INCORPORATED
Exhibit
10.2
"Pages
where confidential treatment has been requested are marked 'Confidential
Treatment Requested.' The redacted material has been separately filed
with the Commission, and the appropriate section has been marked at the
appropriate place and in the margin with a star (*)."
'Confidential
Treatment Requested'
GARMENT
MANUFACTURER & SELLER LICENSE AGREEMENT
BETWEEN
X.
X. XXXXXX DE NEMOURS AND COMPANY
0000
XXXXXX XXXXXX
XXXXXXXXXX,
XXXXXXXX 00000
A
DELAWARE CORPORATION
("DUPONT")
AND
LAKELAND
INDUSTRIES INCORPORATED
000-0
XXXXXXX XXXXXX
XXXXXXXXXX,
XXX XXXX 00000
A
DELAWARE CORPORATION
("LICENSEE")
WHEREAS, DUPONT has gained expertise in
the manufacture of fabrics and protective garments for numerous industrial
applications and wishes to respond to end user needs for consistent high quality
protective apparel;
WHEREAS, DUPONT has developed and
adopted certain trademarks as shown in Attachment A
(hereinafter " Trademarks") which are reserved exclusively to designate high
quality protective garments meeting certain quality specifications;
WHEREAS, DUPONT has developed terms and
conditions for licensing the use of Trademarks in conjunction with selling
garments and for establishing manufacturing and distribution channels to promote
these garments; and
WHEREAS, LICENSEE desires to become a
manufacturer and seller for these garments, use Trademarks on such garments
having the quality and product specifications set forth in this License, sell
such garments in certain markets, and is willing to comply with the terms set
forth below,
NOW,
THEREFORE, in consideration of the grant and mutual promises contained in this
Agreement, DUPONT and LICENSEE agree as follows:
I. Purpose
1.
|
The
Parties hereto recognize that DuPont manufactures and sells material in
the form of nonwoven fabrics listed in Attachment B
(“Fabric”). Those nonwoven Fabrics have beneficial properties
when properly applied in the manufacture of protective clothing used by
industrial workers.
|
2.
|
The
Parties hereto recognize that Licensee is an experienced manufacturer of
industrial protective clothing, including Garments, made of
Fabric. DuPont does not manufacture the finished product for
Licensee.
|
3.
|
The
consumers of protective clothing have an interest in knowing the principal
material used in making the protective clothing. DuPont has an
interest in protecting the good will associated with its Fabric and its
Trademarks. Further, DuPont and Licensee have a mutual interest
in the fair, accurate and non-infringing use of the DuPont Trademarks
associated with the Fabric. Licensee wishes to convey the
quality and kind of Fabric used to manufacture the Garments it sells by
referencing the Trademarks.
|
4.
|
Fabric
is being adapted by the Licensee for use in the manufacture of Garments
because Licensee believes Fabric is a suitable material for such
use.
|
5.
|
DuPont
has received reasonable assurances from Licensee that Licensee will use
the Fabric and the Garments responsibly and safely. Further,
Licensee represents and warrants it will make only accurate statements or
representations concerning the characteristics and qualities of the Fabric
and the Garments.
|
6.
|
This
Agreement sets forth the basis under which Licensee will (i) manufacture
Garments made of Fabrics and (ii) be permitted to use DuPont’s
Trademarks.
|
II. Grant
1.
|
DuPont
grants Licensee a nonexclusive, nontransferable, non-assignable, license
to use, display, promote and advertise Trademarks in the United States,
Canada and Mexico ("Territory") in connection with making, selling and
marketing high quality protective apparel for all industrial markets,
excluding the hospital and cleanroom markets ("Markets"), manufactured
from certain types of nonwoven Fabric as described in Attachment B
provided such garments comply with all the technical and quality
specifications of Attachment B
("Garments"). DuPont and Licensee may mutually agree in writing
to add new markets to Markets as described above. The
Parites’ respective rights and obligations in any new
market are subject to all the terms and conditions of this
License.
|
DuPont
may license others to make and sell Garments for Markets in the Territory and to
use Trademarks in Territory. In addition, DuPont may also make and
offer Garments for sale in the Territory.
Attachment B
specifications may be revised or supplemented at any time at DuPont's discretion
upon written notice to Licensee and such revisions or supplements shall become a
part of this License; provided however that Garments made under prior Attachment B
specifications before such change notice shall be deemed to comply with this
Agreement. Garments which bear Trademarks must meet all of the
Specifications set forth in Attachment
X.
XxXxxx
may elect to add new Garments and/or Fabrics to the scope of this
license.
2
III. Licensee
Commitments
1.
|
Licensee
accepts the grant of this License and agrees to use its best efforts in
manufacturing, selling, and promoting Garments bearing Trademarks in
Markets within the Territory. Licensee also agrees not to sell
and/or promote Garments bearing Trademarks outside the Markets or the
Territory defined herein.
|
2.
|
Licensee
will maintain a staff or will retain agents and consultants who are
properly trained, experienced, sophisticated and knowledgeable in the
properties, processing techniques and hazards of Fabric, its performance
and suitability for use in the manufacture of
Garments.
|
3.
|
Licensee
agrees to bear responsibility for, and will perform or have performed, all
tests necessary for Garments to provide reasonable assurance of the
quality and safety of Garments made of
Fabrics.
|
4.
|
Licensee
will provide its customers with the appropriate warnings necessary for the
safe use of Garments made of the
Fabrics.
|
5.
|
Licensee
will comply with all applicable laws and regulations concerning the
development, design, manufacture, marketing, sales and warranty of
Garments. The responsibility to manufacture, promote and
warrant Garments lies solely with
Licensee.
|
6.
|
Licensee
agrees not to use Fabrics provided by DuPont hereunder except to make and
sell Garments in the Markets within the
Territory.
|
7.
|
Licensee
understands that failure to use its best efforts to market and promote
Garments shall be cause for immediate termination of this License under
Section VII. Licensee acknowledges that making or publishing
inaccurate statements or advertisements, or otherwise taking actions that
reflect adversely on Garments (or DuPont Tyvek® )
and/or Fabric shall constitute a material breach of this License, giving
DuPont the right to immediately terminate this
License.
|
8.
|
Licensee
agrees that Garments bearing the Trademarks will meet all Attachment B
specifications.
|
9.
|
Licensee
agrees to comply with the requirements of DuPont’s Advertising Cooperative
Program for the Garments as set forth in Attachment
D.
|
10.
|
Licensee
agrees to actively promote the Trademarks and the
Garments.
|
11.
|
Licensee
agrees to use its best efforts to maintian ISO registration under Standard
9002.
|
12.
|
Licensee
agrees to maintain an adequate inventory of a full line (as defined in
Attachment B)
of all of the Garments and agrees to deliver under normal circumstances
all orders promptly upon order
receipt.
|
13.
|
Licensee
may employ third party contractors provided that Licensee shall assume
full responsibility for assuring compliance of any third party contractor
employed in making Garments made of Fabric with all the requirements of
this License, including the provisions pertaining to the use and resale or
transfer of the Fabric and the use of the name of DuPont and the DuPont
Trademarks.
|
14.
|
To
protect the quality of Garments made of Fabric and the Trademarks,
Licensee shall submit to DuPont, without charge, samples of Garments as
requested by DuPont.
|
3
15.
|
Licensee acknowledges that it has
received, and is familiar with, DuPont's current labeling and literature,
including warnings, concerning Fabrics. Licensee will forward
such information, and such other labeling and material as is supplied to
Licensee by DuPont from time to time, to its employees and to its
customers who handle, process or otherwise come into contact with
Fabrics or Garments.
|
IV. DuPont
Commitments
1.
|
DuPont
will sell Fabrics to Licensee to meet Licensee's supply needs for Fabric
under this Licensing Program, pursuant to the prices in effect for such
Fabric styles at times of shipment and subject to DuPont's standard
Conditions of Sale in effect at the time of shipment. Current
pricing and performance incentives pricing program for 2009 are as set
forth in Attachment
F. A sample of DuPont's current Conditions of Sale is set forth
in Attachment
E.
|
2.
|
The
Fabrics will meet DuPont product release specifications for the specific
Fabric type(s) in effect at the time of shipment. DUPONT MAKES
NO OTHER WARRANTY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY
OTHER EXPRESS OR IMPLIED WARRANTY. ALL SUCH WARRANTIES ARE
HEREBY DISCLAIMED.
|
3.
|
DuPont
will also:
|
|
-
|
offer
educational training to Licensee’s sales force regarding
Fabric;
|
|
-
|
provide
support programs to Licensee for existing products and to the extent that
the scope of this License may be amended to cover new products, provide
support programs for new products;
and,
|
|
-
|
subject
to the terms of Attachment D,
partially fund advertising and promotional materials to a maximum amount
of one percent (1.0%) of Licensee's payments to DuPont for purchases
from DuPont during the prior calendar
year.
|
V.
|
Use
of Trademarks
|
1.
|
Licensee
shall indicate that Garments are made of the Fabric by applying the
labels, mechanicals of which shall be provided free of charge by
DuPont. Sample labels are shown on Attachment C
("The Labels"). Inside labels may also include the name or
trademark of Licensee. The Trademarks may not be used in any
garments or other products which do not meet Attachment B
requirements. Label production costs are
reimbursable as indicated in Attachment
D. Licensee shall place labels on Garments in locations
specified in Attachment
B. Licensee shall use the labels, both inside and outside, on
all Garments. Licensee also agrees to meet the packaging
specifications for Garments set forth in Attachment
B.
|
2.
|
Licensee
acknowledges that Trademarks are the exclusive property of DuPont and
Licensee shall not use any trademark, xxxx, name or symbol which may be
confusingly similar to Trademarks, and shall not use Trademarks in any
manner which could diminish their value to DuPont, affect the validity of
their registration or affect DuPont's exclusive ownership
thereof. Licensee will use Trademarks in accordance with good
trademark and business practice and Licensee shall comply with any
trademark usage guidelines supplied from time to time by DuPont to
Licensee.
|
4
3.
|
If,
as a result of the use of Trademarks, Licensee or any of Licensee's
customers should be charged with trademark infringement, upon notice to
DuPont, DuPont will assume the defense and expense of any proceedings
instituted pursuant to such a charge. Licensee shall not
institute proceedings for infringement of Trademarks in its own
name. Licensee agrees to assist DuPont at Licensee's cost when
requested in such defense or other protection of Trademarks. If
Licensee sees any misuse of Trademarks, Licensee shall immediately notify
DuPont and cooperate with DuPont in trying to correct such
misuse.
|
Licensee shall discontinue immediately
any use, display, advertising or promotion of Trademarks or any claim for
Garments where Trademarks are used, that directly or indirectly includes a
false, exaggerated, nonrepresentative or misleading claim or statement relating
to or which reflects adversely on DuPont, Trademarks, Fabric, Garments, Attachments B and C
specifications, or Garment performance. DuPont, in its sole
discretion, may require Licensee to revise any such objectionable use, display,
advertising or promotion and Licensee shall promptly comply or be in material
breach of this Agreement under Section VII.
VI. Inspection
and Testing of Garments
1.
|
Licensee
shall establish and utilize quality control procedures to maintain
continuous compliance with Attachments B
and C.
|
2.
|
Licensee
shall regularly inspect Garments to ascertain that they shall at all times
meet Attachments B
and C and meet or exceed the current ANSI sizing standard for limited-use
garments
|
3.
|
Licensee
understands that from time to time DuPont may also be inspecting and
sampling Garments in the marketplace for compliance with Attachments B
and C.
|
* [Redacted]
'Confidential
Treatment Requested'
5
IX. Indemnity
and Insurance
1.
|
DuPont
agrees to release, defend, hold harmless and indemnify Licensee from any
and all claims, liabilities, costs and expenses, including but not limited
to reasonable attorney fees, that may arise from DuPont's failure to
supply Fabric that conforms to DuPont’s Specifications for
Fabric.
|
2.
|
Licensee
agrees to release, defend, hold harmless and indemnify DuPont from any and
all claims, liabilities, costs and expenses, including but not limited to
reasonable attorney fees, that may arise from the Licensee’s acts or
omissions relating to or arising from design, testing, manufacture, sale,
use, display, advertising or promotion of Garments made of
Fabric.
|
3.
|
Licensee
agrees to obtain and maintain commercial general liability insurance
(including contractual liability coverage) on an occurrence based policy
form (Form CG 2010) in the minimum amount of $5,000,000 to cover
Licensee's obligations under this Agreement including, but not limited to,
the indemnity. DuPont shall be named as an additional insured
on such insurance. Certificates of insurance in a form
reasonably acceptable to DuPont evidencing the insurance coverage so
required shall be sent to DuPont, at the address set forth below, prior to
the Effective Date of this Agreement. Failure to maintain
such coverage, to provide notice necessary to trigger or
preserve the right to coverage under the policy or failure to provide
DuPont with evidence of such coverage shall constitute good cause for the
immediate termination of this Agreement by DuPont. Such certificates shall
provide that the insurer will give DuPont not less than thirty (30) days
advance notice of any change in or cancellation of
coverage.
|
4.
|
In
the event either, or both, of the Parties to this Agreement are engaged in
litigation with a third party over the subject matter of this Agreement,
the Parties hereto agree to fully cooperate with each other in the defense
of such action and will seek the cooperation of any insurance company that
may have an interest in the
litigation.
|
5.
|
The
obligations set forth in this Section IX. shall survive the expiration or
termination of this Agreement.
|
X. General
1.
|
It
is understood and agreed that DuPont has no right to provide any marketing
instructions to Licensee, or to exercise any control over Licensee’s
pricing or method of operation of its business. Licensee is
free to market Licensee’s Garments and to conduct Licensee’s business as
Licensee sees fit.
|
2.
|
In
the event of litigation, the Parties agree that the Courts of the State of
Delaware shall have exclusive jurisdiction over any claim or action to be
commenced by either Party against the other arising out of the
performance, or relating to the subject of this
Agreement. Licensee hereby consents to personal jurisdiction in
the Courts of Delaware for purposes of any interpretation, enforcement or
legal action concerning this Agreement. This Agreement shall be
construed in accordance with the laws of the State of Delaware without
giving effect to choice of law or conflict principles of any other
jurisdiction.
|
3.
|
The
Parties’ legal obligations under this Agreement are to be determined from
the precise and literal language of this Agreement and not from the
imposition of state laws attempting to impose additional duties that were
not the express basis of the bargain at the time this Agreement was
made.
|
4.
|
The
Parties are sophisticated businesses with legal counsel to review the
terms of this Agreement and the Parties represent that they have fully
read this Agreement, understand its unambiguous terms and intend to be
legally bound hereby.
|
6
5.
|
Licensee
acknowledges that Attachments B,
D, and F are confidential DuPont information. In the course of
performing this Agreement, DuPont may disclose other confidential DuPont
information, either in writing or orally, and so indicate to
Licensee. All such confidential information shall remain the
property of DuPont.
|
6.
|
Nothing
in this License Agreement shall be construed to grant Licensee any rights
or license to any DuPont trademark, trade name, certification xxxx, or
product other than as specified herein. No rights are granted
to Licensee with respect to any patents or patent
rights.
|
7.
|
A
telegram or letter (first class, overnight registered U.S. mail or faxed)
sent to the other Party at the address stated below shall constitute
written notice under this License.
|
8.
|
The
failure of the Parties to insist upon the performance of any provision of
this Agreement or to exercise any right or privilege thereunder shall not
be construed as a waiver of any right arising under this Agreement and all
provisions shall remain in full force and
effect.
|
9.
|
No
liability shall result from delay in performance or non performance
directly or indirectly caused by circumstances beyond the control of the
Party affected, including, but not limited to, acts of God, fire,
explosion, flood, war, act of or authorized by any Government, accident,
equipment failure, labor dispute or shortage, or inability to obtain
material, equipment and transportation. Quantities so affected
shall be eliminated by DuPont from the Agreement without liability, but
the Agreement shall remain otherwise unaffected. DuPont shall
have no obligation to purchase supplies of fabric it would otherwise make
to enable it to perform this
Agreement.
|
10.
|
All
understandings, representations, warranties, and agreements, if any,
heretofore existing between DuPont and Licensee regarding the subject
matter hereof are merged into this License, including the Attachments
hereto, which fully and completely express the entire understanding of the
parties with respect to their relationship. The Parties have
entered into this License freely, intelligently, and voluntarily after
adequate investigation, with neither Party relying upon any statement or
representation not contained in this License or the Attachments
hereto. This Agreement may be amended only by a written
document signed by authorized representatives of both
Parties.
|
11.
|
If
any provision of this Agreement is held to be invalid or unenforceable,
all other provisions will continue in full force and effect, and the
Parties will substitute for the invalid or unenforceable provision a valid
and enforceable provision which conforms as nearly as possible with the
original intent of the Parties.
|
12.
|
DuPont
shall have no liability of any kind or nature whatsoever (including
without limitation, indirect, consequential, special, incidental or
punitive damages) to Licensee for:
|
a. Termination
or expiration of this Agreement according to its terms.
b. Communications
from DuPont with past, present, or prospective customers of Licensee when such
communications pertain to the termination or non-renewal of this Agreement
(including without limitation, communications identifying any new Licensee or
supplier).
7
In
witness whereof, the Parties have signed this License in duplicate by their duly
authorized representatives on the dates set forth below.
LICENSOR
|
LICENSEE
|
|||||
E.
I. du Pont de Nemours and Company
|
||||||
Wilmington,
Delaware, U.S.A.
|
Ronkonkoma,
New York, U.S.A.
|
|||||
By:
|
/s/ Giselle Xxxx
Xxxxxx
|
By:
|
/s/ Xxxxxxxxxxx X.
Xxxx
|
|||
Printed
Name
|
Printed
Name
|
|||||
Corporate
Trademark Counsel
|
President
|
|||||
Printed
Title
|
PrintedTitle
|
|||||
Date:
|
June 6, 2009 |
Effective
Date:
|
June 6, 2009 | |||
Acknowledged
by:
|
||||||
DuPont
Personal Protection
|
||||||
Name:
|
||||||
Title:
|
||||||
8
ATTACHMENTS
A
|
||
The
Trademarks
|
||
B
|
||
*
|
[Redacted]
|
|
C
|
||
Sample
Garment Labels
|
||
D
|
||
*
|
[Redacted]
|
|
E
|
||
DuPont
Standard Terms & Conditions of Sale
|
||
F
|
||
*
|
[Redacted]
|
|
'Confidential
Treatment Requested'
9
ATTACHMENT
"A"
XXX
XXXXXXXXXX
![](https://www.sec.gov/Archives/edgar/data/798081/000091431709001304/graphic10-2_1.jpg)
00
XXXXXXXXXX
"X"
*
|
[Redacted]
|
'Confidential
Treatment Requested'
11
DUPONT CONFIDENTIAL
INFORMATION
ATTACHMENT B
1
*
|
[Redacted]
|
'Confidential
Treatment Requested'
12
DUPONT CONFIDENTIAL
INFORMATION
ATTACHMENT
B2
*
|
[Redacted]
|
'Confidential
Treatment Requested'
13
ATTACHMENT
C
SAMPLE
GARMENT LABELS
OUTSIDE
LABEL MECHANICALS SUPPLIED BY DUPONT
INSIDE
LABEL FORMAT FOR TYVEK®
The fabric in this garment is
made of DuPont Tyvekâ
spunbonded olefin.
|
WARNING!
It is the user's
responsibility to read and understand all provided warning,
proper usage, and care information.
|
Tyvek® fabrics are not flame
resistant or flame retardant, will melt, can create static electricity and
should not be used around heat, open flame, sparks or in a potentially
flammable or explosive environments. This garment and/or fabric
is NOT
SUITABLE for use
with some chemical and hazardous agents. Contact your employer
or the Manufacturer (1-800-645-9291) on specific chemicals or
agents.
|
It
is the user's responsibility to determine the level of risk and the proper
personal protection equipment needed because conditions of use are outside
of our control. DUPONT AND THE LICENSED GARMENT
MANUFACTURER make no warranties, expressed or implied, and assume
no liability as to the performance of this product for a particular
use.
|
INSIDE
LABEL FORMAT FOR TYCHEM®
The fabric in this garment is
made of DuPont Tychem® fabric.
|
WARNING ! It is the
user’s responsibility to read and understand all provided warning,
proper
|
usage,
and care information.
|
Tychem® fabrics
are not flame resistant or flame retardant, will melt, can create static
electricity and should not be used around heat, open flame, sparks or in a
potentially flammable or explosive environments. This garment
and/or fabric is NOT
SUITABLE for use with some chemical and hazardous
agents. Contact your employer or the Manufacturer
(1-800-645-9291) on specific chemicals or agents.
|
It
is the user's responsibility to determine the level of risk and the proper
personal protection equipment needed because conditions of use are outside
of our control. DUPONT AND THE LICENSED GARMENT
MANUFACTURER make no warranties, expressed or implied, and assume
no liability as to the performance of this product for a particular
use.
|
14
ATTACHMENT
D
COOPERATIVE
ADVERTISING PROGRAM
|
*
|
[Redacted]
|
'Confidential
Treatment Requested'
|
15
ATTACHMENT
E
CONDITIONS OF
SALE
STANDARD
CONDITIONS OF SALE
1.
|
Seller
warrants only that (a) any products or services provided hereunder meet
Seller's standard specifications for the same or such other specifications
as may have been expressly agreed to herein; (b) the sale of any products
or services provided hereunder will not infringe the claims of any validly
issued United States patent covering such product or service itself, but
does not warrant against infringement by reason of (i) the use of any
information provided, (ii) the use of any product or service in
combination with other products, services, or information or in the
operation of any process, or (iii) the compliance by Seller with any
specifications provided to Seller by Buyer; and (c) all products provided
hereunder were
produced in compliance with the requirements of the Fair Labor
standards Act of 1938, as amended. WITH RESPECT TO ANY PRODUCTS, SERVICES,
OR INFORMATION PROVIDED TO BUYER, SELLER MAKES NO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER EXPRESS OR
IMPLIED WARRANTY. Buyer assumes all risk and liability resulting from use
of the products, services, or information delivered hereunder, whether
used singly or in combination with other products, services, or
information.
|
2.
|
IN
NO EVENT WILL SELLER'S AGGREGATE LIABILITY TO BUYER FOR ALL DAMAGES
ARISING FROM ANY AND ALL CLAIMS RELATED TO THE BREACH OF THIS AGREEMENT,
NONDELIVERY, OR THE PROVISION OF ANY PRODUCT, SERVICE, OR INFORMATION
COVERED BY THIS AGREEMENT, REGARDLESS OF WHETHER THE FORM OF ACTION IS
BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE,
OR OTHERWISE, EXCEED THE TOTAL PRICE
PAID BY BUYER TO SELLER FOR THE PRODUCTS, SERVICES, OR INFORMATION IN
RESPECT OF WHICH DAMAGES ARE CLAIMED. NO CLAIM SHALL BE ALLOWED FOR
PRODUCT THAT HAS BEEN PROCESSED IN ANY MANNER. FAILURE TO
GIVE NOTICE OF A CLAIM WITHIN NINETY (90) DAYS FROM DATE OF
DELIVERY, OR THE DATE FIXED FOR DELIVERY (IN CASE OF NONDELIVERY) SHALL
CONSTITUTE A WAIVER BY BUYER OF ALL CLAIMS IN RESPECT OF SUCH PRODUCTS,
SERVICES, OR INFORMATION. PRODUCTS SHALL NOT BE RETURNED TO SELLER WITHOUT
SELLER'S PRIOR WRITTEN PERMISSION. NO CHARGE OR EXPENSE INCIDENT TO ANY
CLAIMS WILL BE ALLOWED UNLESS APPROVED BY AN AUTHORIZED REPRESENTATIVE OF
SELLER. IN ADDITION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, EACH PARTY HERETO WAIVES ANY CLAIM TO INDIRECT, CONSEQUENTIAL,
PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE PROVISION OF ANY PRODUCT, SERVICE,
OR INFORMATION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES
WAIVE AND AGREE NOT TO ASSERT NON-CONTRACTUAL CLAIMS ARISING UNDER STATE
LAW RELATING TO THIS AGREEMENT OR THE PROVISION OF ANY PRODUCT, SERVICE,
OR INFORMATION COVERED BY THIS AGREEMENT, AND THIS AGREEMENT SHALL BE DEEMED TO INCLUDE
SUCH LANGUAGE AS MAY BE REQUIRED TO EFFECT SUCH WAIVER. WAIVER BY EITHER PARTY OF
ANY DEFAULT BY THE OTHER HEREUNDER SHALL NOT BE DEEMED A WAIVER BY SUCH
PARTY OF ANY DEFAULT BY THE OTHER WHICH
MAY THEREAFTER OCCUR.
|
3.
|
No
liability shall result from delay in performance or nonperformance,
directly or indirectly caused by circumstances beyond the control of the
party affected, including, but not limited to, act of God, fire,
explosion, flood, war, act of or authorized by any Government,
accident, labor trouble or shortage, pandemic, inability to obtain
material, equipment or transportation, failure to obtain or hardship in
obtaining reasonably priced supplies of materials, or failure of usual
transportation mode. Quantities so
affected
|
16
may be
eliminated from the agreement without liability, but the agreement shall remain
otherwise unaffected. Seller shall have no obligation to purchase supplies of
the product specified herein to enable it to perform this
Agreement.
4.
|
If
for any reason including but not limited to Force Majeure Seller is unable
to supply the total demand for products specified herein, Seller may
distribute its available supply among any or all purchasers, as well as
departments and divisions of Seller, on such basis as it may deem fair
and practical,
without liability for any failure of performance which may result
therefrom.
|
5.
|
Seller
may furnish such technical assistance and information as it has available
with respect to the use of the products or services covered by this Agreement.
Unless otherwise agreed in writing, all such information will be provided
gratis. Buyer agrees to evaluate such information, to make an independent
decision regarding the suitability of such information, products and
services for Buyer's application, and only use such products, services and
information pursuant to then current good product stewardship principles
and all regulatory requirements applicable to Buyer's
business.
|
6.
|
Buyer
acknowledges that it has received and is familiar with Seller's labeling
and literature concerning the products and its properties. Buyer will
forward such information to its employees, contractors and customers who
may distribute, handle, process, sell or use such products, and advise
such parties to familiarize themselves with such information. Buyer agrees
that products sold hereunder will not knowingly be resold or given in
sample form to persons using or proposing to use the products for purposes
contrary to recommendations given by Seller or prohibited by law, but will
be sold or given as samples only to persons who can handle, use and
dispose of the products safely. Unless agreed to by Seller in a written
agreement covering such use, in no event shall Buyer use products or
resell products for use in the manufacture of any implanted medical
device. Buyer agrees that export of any product, service or information
provided hereunder shall be in accordance with applicable Export
Administration Regulations.
|
7.
|
Except
as may be contained in a separate trademark license, the sale of product
(even if accompanied by documents using a trademark or trade name of
Seller) does not convey a license, express or implied, to use any
trademark or trade name of Seller, and Buyer shall not use any trademark
or trade name of Seller in the conduct of its business without Seller's
prior written consent.
|
8.
|
The
Buyer shall reimburse the Seller
for all taxes (excluding income taxes) excises or other charges
which the Seller may be required to pay to any Government (National, State
or Local) upon the sale, production or transportation of the products,
services, or information sold
hereunder.
|
9.
|
In
the event Buyer fails to fulfill Seller's terms of payment, or in case
Seller shall have any doubt any time as to Buyer's financial
responsibility, Seller may decline to make further deliveries except upon
receipt of cash or satisfactory
security.
|
10.
|
This
agreement is not assignable or transferable by Buyer, in whole or in part,
except with the prior written consent of Seller. Seller reserves the right
to sell, assign, or otherwise transfer its right to receive payment under
this agreement.
|
11.
|
Dispute
Resolution and Arbitration - Buyer and Seller agree to arbitrate all
disputes, claims or controversies whether based on contract, tort,
statute, or any other legal or equitable theory, arising out of or
relating to (a) this Agreement or the relationship which results from this
Agreement, (b) the breach, termination or validity of this Agreement, (c)
the purchase or supply of any product, service, or information provided by
Seller, (d) events leading up to the formation of Buyer's and Seller's
relationship, and (e) any issue related to the creation of this Agreement
or its scope, including the scope and validity of this paragraph. The
parties shall before and as a condition
to proceeding to arbitration attempt in good faith to resolve any such
claim or controversy by
|
17
mediation
under the International Institute for Conflict Prevention & Resolution
("CPR") Mediation Procedure then currently in effect. Unless the parties agree
otherwise, the mediator will be selected from the CPR Panels of Distinguished
Neutrals. Any such claim or controversy which remains unresolved 60 days after
the appointment of a mediator or 60 days after good faith efforts by either
party to proceed to mediation shall be finally resolved by binding arbitration
in accordance with the CPR Rules for Non-Administered Arbitration then currently
in effect by three independent and impartial arbitrators, none of whom shall be
appointed by either party. This Agreement shall be governed by the Federal
Arbitration Act, 9 U.S.C. §§ 1-16, to the exclusion of any state
laws inconsistent therewith. Such arbitration shall be conducted in a city to be
chosen by the arbitrators which is not the principal place of business of either
party, and the arbitrators and the parties shall conduct such arbitration in
accordance with such procedures as may be necessary to permit use of the then
current CPR Arbitration Appeal Procedure. Any judgment upon the award rendered
by the arbitrator(s) may be entered by any court having jurisdiction thereof. In
the event that either party wishes
to appeal an award, the parties shall follow the then current CPR Arbitration
Appeal Procedure. Buyer and Seller agree not to file or join any class action or
class arbitration, seek or consent to class
relief, or seek or consent to the consolidation or joinder of its claims with
those of any third party. If any clause within this Arbitration Provision (other
than the agreement regarding the conduct of the arbitration in the preceding
sentence) is found to be illegal or unenforceable, that clause will be severed
from this Arbitration Provision, and the remainder of the Arbitration Provision
will be given full force and effect. If such agreement regarding the conduct of
the arbitration is found to be illegal or unenforceable and if the arbitrators
permit a class arbitration or consolidated or joined matter to proceed, this
entire Arbitration Provision will be unenforceable, and the dispute may be
decided by a court. The obligations set forth in this paragraph shall survive
the termination or expiration of this Agreement.
12.
|
In
addition to these Standard Conditions of Sale, any Special Conditions of
Sale set forth on this invoice or in the current price list for the
products or services sold hereunder shall apply and are incorporated by
reference. Unless otherwise specified therein, title, liability for and
risk of loss to Product sold hereunder passes to Buyer upon loading for
shipment at Seller's producing
location.
|
13.
|
This
Agreement shall be construed and governed by Delaware law, without regard
to any applicable conflicts of law provisions, and the terms of the UCC,
rather than the United Nations Convention on Contracts for the
International Sale of Goods, shall
apply.
|
14.
|
Except
as expressly provided in any other term or condition of this Agreement,
any provision hereof which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of
such provision in any other
jurisdiction.
|
15.
|
This
Agreement supersedes all prior agreements, representations and
understandings between the parties (whether written or oral) with respect
to its subject matter and constitutes (along with the exhibits and
schedules attached hereto) a complete and exclusive statement of the terms
of the agreement between the parties with respect to the provision of
products or services hereunder. Not by way of limitation of the
unqualified nature of the foregoing, Buyer acknowledges, agrees and
represents that it is not relying upon, and it has not been induced by,
any representation, warranty, statement made by, or other
information provided by Seller in connection with its decision to purchase
or use any product, service, information or technology, other than the
representations and warranties Seller as and only to the extent expressly
provided in this Agreement. No modification of this Agreement shall be
binding upon Seller unless separately contracted in writing and executed
by a duly authorized representative of Seller. No modification shall be
effected by the acknowledgment or acceptance of purchase order forms
stipulating different conditions. Unless Buyer shall notify Seller in
writing to the contrary as soon as practicable after receipt of this
invoice by Buyer, Buyer shall be deemed to have accepted the terms and
conditions hereof and, in the absence of such notification, Buyer's
acceptance or use of the products, services, information or technology
shall be equivalent to Buyer's assent to the terms and conditions
hereof.
|
18
ATTACHMENT
F
PRICING & PERFORMANCE
INCENTIVE PROGRAMS
*
|
[Redacted]
|
'Confidential
Treatment Requested'
19