MANUFACTURING AND SUPPLY AGREEMENT
Exhibit
10.9
This
MANUFACTURING AND SUPPLY AGREEMENT (“Agreement”)
is made as of August 26, 2008, between and among:
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(i)
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He
Nan Xxx Xxxx High Pressure Valve Co., Ltd., a limited liability company
organized under the laws of the People’s Republic of China (“PRC”)
(“Party
A” or “Buyer”);
and
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(ii)
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Xxx
Xxxx High Pressure Valve Steel Casting Limited Liabilities Company, a
limited liability company organized under the laws of the PRC (“Party
B” or “Seller”).
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Each of
the foregoing is referred to as a “Party” and
together as the “Parties”.
AGREEMENT
Based on
full understanding and trust, after friendly discussion between Party A and
Party B, both Party A and Party B have reached the following
agreement:
1.
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Long term
cooperation. Pursuant
to the terms of this Agreement, the Parties agree to establish a long term
cooperation between them relating to the manufacturing and sale of certain
high-quality cast products (as more fully described in Appendix A, the
“Products”)
by Party B to Party A, and the purchase of those Products from Party B by
Party A.
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2.
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Purchase
and Sale of Products. Party
B will manufacture and sell the Products to Party A, and Party A will
purchase Products from Party B, according to the terms and conditions set
out in this Agreement.
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3.
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Specifications. Party
B will manufacture the Products strictly in compliance with specifications
provided from time to time by Party A (the “Specifications”).
The Specifications may include quality standards, design, tolerance
requirements, and any other matters relevant to the design and manufacture
of items similar to the Products. The final determination as to whether
the Products manufactured by Party B meet the Specifications will be made
in all cases by Party A.
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4.
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Molds,
Casts, Dies, Etc. From time to time Party A may provide
to Party B molds, casts, dies and other supplies and equipment for use in
the manufacture of the Products (the “Party A
Materials”). Party B will ensure that all Party A Materials are
used only in accordance with the Specifications and/or any other
instructions that may be provided by Party A, and only for the purpose of
manufacturing Products for sale to Party A. Under no circumstances will
Party B use any Party A Materials for any other purpose, including the
manufacture of any products or other items for sale to or use by any third
party. Party B will maintain the Party A Materials in reasonable condition
and except for consumable supplies, return such Materials to Party A upon
request in good condition, ordinary wear and tear
excepted.
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5.
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Orders. From
time to time Party A will place orders for Products (“Orders”)
with Party B. All Products will be manufactured and delivered in
compliance with the terms contained in the Orders or as otherwise
instructed by Party A.
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6.
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Price. The
Parties will agree on the price for the Products on a case-by-case basis.
In all cases (a) the prices for the Products will be set consistent with,
or under, prevailing market prices in the PRC for similar products; and
(b) Party B will sell the Products to Party A at prices, and on terms and
conditions, no less favorable than offered by Party B to any third party
for similar products.
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1
7.
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Payment. Party
A will only pay Party B for Product after delivery and acceptance by Party
A. No prepayments for Products (i.e., payments for Products before
delivery of the Products) will be made. No payment will be made for
Products which do not meet the Specifications applicable to them;
non-conforming Products will be returned by Party A to Party B at Party
B’s cost and expense.
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8.
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Production
Capacity. During the Term of this Agreement (as
defined below), Party B will maintain, it its sole cost and expense,
sufficient manufacturing plant and capacity, and sufficient trained
personnel, to satisfy Orders for Products placed by Party A. Party B is
solely responsible for any third party or other financing that may be
necessary to maintain its plant, equipment and personnel in order to meet
its obligations under this Agreement. Party A will have no obligation to
provide any financing, credit or other financial support to Party B except
insofar as it is required to pay for Products under this Agreement. Party
B’s capacity will be available to fulfill Party A’s Orders before Party B
may take any orders from third
parties.
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9.
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Non-Competition. Party
B will not manufacture or sell to any third party any Products, or any
products or other items which are substantially the same as the Products
or are based on the Specifications provided by Party
A.
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10.
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Non-Exclusivity;
No Minimum or Maximum Orders. Party A may purchase
products similar or identical to the Products from any third party at any
time. Party A is under no obligation to place any Orders, or to purchase
any minimum amount of Products from Party B. There is no maximum volume of
Products which may be Ordered by Party A from Party B.
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11.
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Confidential
Information. Notwithstanding any other provision of this
Agreement, the Parties agree to maintain in confidence, and not to
disclose to any third party, either during the Term of this Agreement and
during a period of five (5) years after the termination of this Agreement,
any and all Confidential Information furnished by a Party (the “Disclosing
Party” to the other Party (the “Receiving
Party”). “Confidential
Information” means and includes the Specifications and any
information of any nature except for information (i) which at the time of
disclosure is, or subsequently becomes, part of the public domain through
no fault of the Receiving Party, (ii) which at the time of disclosure, is
already known to the Receiving Party and the Receiving Party can prove
such prior knowledge, or (iii) which is subsequently disclosed on a
non-confidential basis to the Receiving Party by a third party whose
receipt and disclosure does not constitute a violation of any
confidentiality obligation to the Disclosing Party. Confidential
Information may include, but will not be limited to, processes,
compilations of information, records, specifications, cost and pricing
information, customer lists, catalogs, booklets, technical advertising and
selling data, samples, and the fact of the Disclosing Party’s intent to
manufacture, market, sell or distribute any new product, and except for
information which is public or general industry knowledge, all information
furnished by the Disclosing Party to the Receiving Party will be
considered to be Confidential Information, whether or not specifically so
designated. The Receiving Party will take all reasonable steps to protect
the Confidential Information from unauthorized disclosure, including, but
not limited to, informing its employees in writing of the confidential
nature of the information and binding those employees to maintain the
confidentiality of the information to the same extent as provided herein.
The Receiving Party further agrees not to use any Confidential Information
in any way, directly or indirectly, except as required in the course of
the performance of the terms of this Agreement and approved in writing and
in advance by the Disclosing Party.
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12.
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Term. This
Agreement will be effective as of the date first set forth above (the
“Effective
Date”) and for a period of five years unless extended, or earlier
terminated, in accordance with this Section 12. The period during which
this Agreement is effective is referred to as the “Term.”
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2
(a)
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Automatic
Renewal. Unless written notice is delivered by Party A
to Party B at least sixty (60) calendar days before the end of the Term,
as it may have been extended, the Term will be automatically extended for
a further period of one (1) year. This automatic extension will continue
to apply at the end of each extended period until this Agreement is
terminated in accordance with this Section
12.
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(b)
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Termination. This
agreement may be terminated by Party A at any time upon sixty (60)
calendar days’ written notice to Party A, or by Party B at any time upon
one hundred eighty (180) calendar days’ written notice to Party A after
the ten years anniversary of the execution of the
Agreement.
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(c)
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Breach or
Insolvency. Any
Party may terminate this Agreement immediately (a) upon the material
breach by any other Party of that Party’s obligations hereunder and the
failure of such Party to cure such breach within thirty (30) working days
after written notice from the non-breaching Part(ies); or (b) upon the
filing of a voluntary or involuntary petition in bankruptcy by another
Party or of which such other Party is the subject, or the insolvency of
the other, or the commencement of any proceedings placing the other in
receivership, or of any assignment by the other for the benefit of
creditors.
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(d)
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Consequences
of Termination. Upon any effective date of any
termination of this Agreement, (i) all Party A Materials and all copies of
any Specifications will be returned to Party A; and (ii) all Product not
purchased by Party A will be destroyed and not sold or transferred to any
other party.
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(e)
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Survival. The
provisions of Section 4, Section 9, Section 11 and Section 13 will survive
any termination of this Agreement. Any amounts owing from any Party to any
other Party on the effective date of any termination under the terms of
this Agreement will continue to be due and owing despite such
termination.
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13.
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Miscellaneous.
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(a)
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Dispute
Resolution. In the event of any dispute between
them relating to the subject matter of this Agreement, the Parties will
attempt in good faith to resolve any issues between them by friendly
discussion and negotiation.
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(b)
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No
Partnership. This Agreement does not establish either
Party as an agent, partner, joint venturer, employee, servant, or legal
representative of the other for any purpose whatsoever, and neither has
the right to bind the other in any
way.
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(c)
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Further
Assurances. Each Party will execute and/or cause
to be delivered to each other Party such instruments and other documents,
and will take such other actions, as such other Party may reasonably
request (prior to, at or after the Closing) for the purpose of carrying
out or evidencing any of the transactions contemplated by this
Agreement.
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(d)
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Fees and
Expenses. Each Party will bear its own expenses,
costs and fees, including any legal fees, incurred in connection with the
negotiation, execution and performance of its obligations under the
Transactional Agreements.
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(e)
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Notices. Any
notice or other communication required or permitted to be delivered to any
Party will be in writing and will be deemed properly delivered, given and
received upon dispatch by hand, registered mail, courier or express
delivery service with receipt confirmed by signature of the addressee, to
the address set forth beneath the name of such Party below (or to such
other address as such Party may specify in a written notice given to the
other Parties):
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3
If
to Party A:
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Xx.
00 Xxxx Xxxxxxx Xxxx, Xxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx
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With
Copies to:
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If
to Party B:
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Xx.
00 Xxxx Xxxxxxx Xxxx, Xxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx
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With
Copies to:
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(f)
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Governing
Law and Language. This Agreement, including all
matters of construction, validity and performance, will in all respects be
governed by, and construed in accordance with, the laws of the People’s
Republic of China (without giving effect to principles relating to
conflict of laws). This Agreement is written in the Chinese
language, which will govern any interpretation of this
Agreement.
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(g)
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Interpretation. Each
Party acknowledges that it has participated in the drafting of this
Agreement, and any applicable rule of construction to the effect that
ambiguities are to be resolved against the drafting party may not be
applied in connection with the construction or interpretation of this
Agreement.
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(h)
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Successors
and Assigns; Parties in Interest. Except as
otherwise expressly provided herein, the provisions of this Agreement
shall inure to the benefit of, and be binding upon, the successors,
permitted assigns, heirs, executors and administrators of the
Parties.
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(i)
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Assignments,
Successors, and No Third-Party Rights. No Party
may assign any of its rights or delegate any of its obligations under this
Agreement without the written consent of any other Party purported to be
bound thereby.
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(j)
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Amendments. This
Agreement may not be amended, modified, altered or supplemented other than
in a writing duly executed and delivered on behalf of all
Parties.
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(k)
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Waiver. No failure or
delay by any Party to exercise any right, power or remedy under this
Agreement will operate as a waiver of any such right, power or
remedy.
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(l)
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Entire
Agreement. The Agreement set forth the entire
understanding of the Parties relating to the subject matter thereof and
supersedes all prior agreements and understandings, written or oral, among
or between any of the Parties relating to the subject matter
hereof.
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(m)
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Counterparts.
This Agreement may be executed in any number of counterparts. When each
Party has signed and delivered to all other Parties at least one such
counterpart, each of the counterparts will constitute one and the same
instrument.
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[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the Parties have executed or caused to be executed and
delivered this Manufacturing and Supply Agreement as of the date first above
written.
“Party
A”
He
Nan Xxx Xxxx High Pressure Valve Co., Ltd.
[SEAL]
By: _____________________________
Print:
Its
Legal Representative
Address:
_____________________________
_____________________________
_____________________________
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“Party
B”
Xxx
Xxxx High Pressure Valve Steel Casting Limited liabilities
company
[SEAL]
By: _____________________________
Print:
Its
Legal Representative
Address:
_____________________________
_____________________________
_____________________________
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