Supercedes Agreement Dated [text deleted due to confidential treatment]
C O N T R A C T
Dated [text deleted due to confidential treatment] Between
XXXXXXX CHEMICAL COMPANY
"Seller"
Xxxxxxxxx, Xxxxxxxxx, XXX 00000
and
BUYER - Ultra Pac, Inc.
00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx 00000-0000
Attention Xx. Xxx Xxxxxxxxx
Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller the
materials herein described during the period beginning July 1, 1996, and ending
December 31, 1997, and according to the further provisions hereof:
MATERIALS - EASTAPAK(R) PET 9921 Thermoplastic Polyester (APET)
EASTAPAK(R) PET 12822 Thermoplastic Polyester (CPET)
PACKAGING AND DELIVERIES - Delivered in Bulk Rail
QUANTITY - Buyer agrees to purchase during the following periods the minimum
quantities specified below. Seller agrees to sell during the following periods
the minimum quantities specified below, plus such additional quantities as may
be requested by Buyer prorated for fractions of a calendar year.
August 2, 1996, to December 31, 1997 - [text deleted due to
confidential treatment] Pounds Per Calendar Year Combined of
PET 12822 and PET 9921
Buyer shall give Seller reasonable notice covering shipments and Seller, at its
election, may limit the quantity shipped in any [text deleted due to
confidential treatment] to the minimum contract quantity divided by [text
deleted due to confidential treatment] in the contract period.
Buyer will forecast material requirements by product each quarter so negotiating
between Buyer and Seller can be concluded 60 days prior to the beginning of any
[text deleted due to confidential treatment].
PRICE AND TERMS OF PAYMENT - The price and terms are negotiated between Buyer
and Seller to be agreed upon by the parties from time to time and is maintained
in the competitive price document files separate from this agreement.
If agreement on price is not reached, this contract will terminate [text deleted
due to confidential treatment] days after notice in writing by either party to
the other.
During the term of this agreement, a maximum price shall be in effect for
EASTAPAK(R) PET 12822 at [text deleted due to confidential treatment] per pound
for railcar quantities and, for EASTAPAK(R) PET 9921, a maximum price of [text
deleted due to confidential treatment] per pound for railcar quantities shall be
in effect.
[text deleted due to confidential treatment], by mailing Buyer written notice
thereof at least thirty (30) days before the [text deleted due to confidential
treatment] becomes effective; and the [text deleted due to confidential
treatment] shall continue in effect unless and until [text deleted due to
confidential treatment] by Seller or again [text deleted due to confidential
treatment] in the same manner. However, on orders acknowledged before the date
of announcement of a [text deleted due to confidential treatment] and shipped
within thirty (30) days after acknowledgment, the price in effect on date of
acknowledgment will apply. On any order or any part of an order shipped thirty
(30) days or more after the date of acknowledgment, whether in accordance with
the terms of the order or any other cause whatever, the price in effect on date
of shipment will apply. Buyer shall have the right to cancel the undelivered
portion of the material to which the [text deleted due to confidential
treatment] applies by mailing Seller written notice of cancellation before the
[text deleted due to confidential treatment] becomes effective unless Seller
shall, within ten (10) days after receipt of such cancellation notice, mail
Buyer written notice rescinding the [text deleted due to confidential treatment]
price [text deleted due to confidential treatment]. If any law, governmental
order, regulation or rule [text deleted due to confidential treatment] Seller
from making a price [text deleted due to confidential treatment] or requires any
price [text deleted due to confidential treatment], Seller, by mailing written
notice to Buyer, shall have the right immediately to terminate this contract.
CONDITIONS OF SALE
1. Prices
Prices for the materials sold under this agreement shall be Xxxxxxx'x
prices in effect on the date of shipment, unless otherwise agreed in writing.
Buyer will also pay any applicable taxes. If payments are not made when due, or
if Eastman has reason to believe that Buyer has unsatisfactory financial
responsibility, Eastman may require cash in advance or other payment terms,
suspend shipments, or cancel this agreement.
2. Limited Warranty
Eastman warrants that the materials will meet its written specifications
and were produced in compliance with the requirements of the Fair Labor
Standards Act of 1938, as amended, and all other federal and state laws and
regulations applicable to the materials and Xxxxxxx'x sale of them under this
agreement. Eastman also warrants that it has good and free title to the
materials and that the materials will not infringe any valid claim of any United
States' patent covering the materials themselves, but Eastman does not warrant
against infringement by reason of the use of the materials in combination with
other products or in the operation of any process. Eastman may discontinue
deliveries of any materials, the manufacture, sale or use of which in its
opinion would involve patent infringement. EASTMAN MAKES NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE.
3. Inspection; Limitation of Liability; Buyer's Remedy
Buyer must promptly inspect the materials upon their delivery and must
notify Eastman in writing of any claims within 45 days of their date of
delivery. Xxxxxxx'x maximum liability and Buyer's sole remedy in the event of
delivery of materials that fail to comply with the terms of this agreement, or
for any other breach by Eastman under this agreement, is a refund of the
purchase price or, at Buyer's option and subject to availability, supply of
replacement materials, freight charges to be borne by Eastman. IN NO EVENT SHALL
EITHER EASTMAN OR BUYER BE LIABLE FOR ANY CONSEQUENTIAL OR OTHER INCIDENTAL
DAMAGES UNDER THIS AGREEMENT, WHETHER OR NOT CAUSED BY SUCH PARTY'S NEGLIGENCE.
4. Technical Information; Hazards and Precautionary Procedures
Any technical information or assistance Eastman or any of its affiliates
provides is given and accepted at Buyer's risk and is not a warranty or a
specification. Buyer agrees that it will familiarize itself with all hazards and
precautionary procedures with respect to the handling, transportation or use of
the materials or products made in whole or in part from the materials, and the
containers in which such materials or products are shipped, and will manage the
materials, products and containers accordingly. Buyer will forward any product
safety information provided by Eastman or its affiliates to Buyer's employees,
to all others who handle the materials, and to its customers. Buyer agrees,
notwithstanding anything herein to the contrary, to indemnify Eastman and its
affiliates for any claims made against Eastman or its affiliates and for
associated damages and expenses (including reasonable attorneys' fees and
expenses), to the extent caused by Buyer's failure to familiarize itself with
such hazards and precautionary procedures, to manage accordingly, or to forward
such information.
5. Quantity
On bulk marine vessel shipments, claims may not be made for shortages of
less than [text deleted due to confidential treatment] of the net weight. On
bulk tank trucks, bulk tank cars, or packaged shipments, claims may not be made
for shortages of less than [text deleted due to confidential treatment] of net
weight.
Delivery of within [text deleted due to confidential treatment] of the
quantity requested shall be accepted by Buyer as complying with the order,
although Buyer must pay for only the quantity actually delivered.
6. Force Majeure; Governmental Actions
Neither Buyer nor Eastman shall be liable for failure of such party to
perform where such failure is caused by war, fire, accident, strike, labor
trouble or shortages, equipment breakdown, governmental laws, regulations,
orders or decrees (including those relating to environmental matters),
unavailability of materials, containers or transportation, or acts of God or
other causes beyond such party's control, and upon the occurrence of any such
event pertaining to Eastman, [text deleted due to confidential treatment]. If a
governmental action substantially affects Xxxxxxx'x right to establish prices or
transportation terms, Eastman may terminate this agreement on 30 days' notice.
7. Title; Containers and Railcars
Unless it is otherwise indicated elsewhere in this agreement, delivery
and sales terms are [text deleted due to confidential treatment]. Buyer is
responsible for protecting and returning in good condition any returnable drums
or other containers, or railcars provided by Eastman, which will at all times
remain Xxxxxxx'x property. Buyer is responsible for ensuring that such drums,
containers or railcars are "empty" before return. Railcars for bulk shipments
will be furnished to Buyer without charge for a period prescribed by Eastman.
Such railcars may be retained thereafter only with Xxxxxxx'x prior consent and
subject to Xxxxxxx'x current daily charges.
8. Miscellaneous
This agreement consists only of the terms on both sides of this document
and any attachments hereto. Any modifications must be in writing and signed by
both parties. A waiver by Eastman with respect to any breach by Buyer shall not
constitute a waiver of any other breach. This agreement shall be deemed to have
been entered into in Kingsport, Tennessee and the laws of the State of Tennessee
shall apply.
TRANSPORTATION - [text deleted due to confidential treatment]. Seller reserves
right to select route and method of shipment. If Buyer requests and Seller
agrees to a route or method involving higher than lowest rate, Buyer shall pay
the excess transportation costs.
CONDITIONS - The conditions set forth on the reverse side hereof are a part of
this contract.
ULTRA PAC, INC. XXXXXXX CHEMICAL COMPANY
By /s/ Xxx Xxxxxxxxx By /s/
----------------------------------- -----------------------------------
Title Director of Operations Title Vice President & General Manager
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