Exhibit 16.1
Supply Agreement
This supply agreement (the "Agreement") is entered into on and becomes effective
as of December 15, 2005 by and between DuPont de Nemours (Belgium) BVBA, a
company organized and existing under the laws of Belgium with its main business
address at Xxxxxx Xxxxxxxxxxxx 0, X-0000 Xxxxxxxx, Xxxxxxx ("DuPont") and
NeoMedia Technologies Inc., a company organized and existing under the laws of
the State of Florida with its main business address at 0000 Xxxxxx Xxxxxx, Xxxxx
000, Xxxx Xxxxx, XX-00000, X.X.X. ("NeoMedia")
Preamble
DuPont agrees to supply and deliver and NeoMedia agrees to purchase and accept
the Product specified herein upon the following terms and conditions:
1. Product and Use
Product shall mean refinish coating products manufactured by DuPont and
its affiliates (the "Product"). Neomedia shall purchase the Products from
DuPont and its affiliates for resale to Jinche Yingang Automobile Co.
("Jinche") which will in turn resell those products to Auto Tech Services
Ltd. ("Automart") and its sales network in the People's Republic of China
("PRC"). For the avoidance of any doubt, the Products can only be used by
Automart's sales network members in the PRC. NeoMedia shall provide to
DuPont a list of all bodyshops belonging to Automart's sales network
shortly after signing of this Agreement and shall maintain this list
up-to-date.
2. Forecasts, Orders and Shipment
As of the date hereof, it is the Parties' expectation that NeoMedia will
purchase most of its and Jinche's Products requirements in the PRC from
DuPont and its affiliates.
NeoMedia shall send DuPont rolling forecasts of its Products requirements
for eighteen (18) months and shall update those forecasts every calendar
month, except for the current calendar month and the two (2) following one
(1) month periods which shall remain unchanged and for which NeoMedia
shall issue firm orders.
The deviation between the ordered quantities of any Product grade for the
third (3rd) calendar month after the current month and the forecasted
quantities for such third (3rd) calendar month shall be comprised between
one hundred and twenty-five percent (125%) and seventy-five percent (75%)
of the forecasted quantities. The deviation between the ordered quantities
of all Product grades for the third (3rd) calendar month after the current
month and the forecasted quantities for such third (3rd) calendar month
shall be comprised between one hundred and ten percent (110%) and ninety
percent (90%) of the forecasted quantities.
NeoMedia shall provide DuPont with its schedule for shipment of Product at
least sixty (60) days in advance of the requested delivery date. DuPont
and its affiliates will confirm the expected delivery date in writing. The
Parties will endeavour to order and deliver the contracted quantities of
the Product as evenly as possible over the months of the year and
NeoMedia's estimates and DuPont and its affiliates' deliveries shall be
drawn up to maintain this principle.
DuPont or its affiliates shall within an appropriate period after
receiving each firm order confirm its ability to supply the binding
quantities. Acceptance by DuPont or its affiliates of the firm orders
shall constitute a binding contract to supply and purchase.
In the event DuPont or its affiliates face capacity limitations despite
its production lines operating under normal conditions at full capacity,
such that it is unable to satisfy the needs of NeoMedia hereunder as they
result from firm agreements entered into prior to such production
constraint, then, for so long as such insufficiency shall continue, DuPont
and its affiliates shall apportion in a fair and equitable manner its
actual available capacity pro rata as between its own customers and
NeoMedia. Such pro rata apportionment shall take into account the recent
historical supply of Product by DuPont and its affiliates to such
customers and to NeoMedia.
3. Price
DuPont and its affiliates' prices to NeoMedia shall be those negotiated
and agreed in writing with NeoMedia from time to time. The initially
agreed upon list price for Product is set out in Schedule 3.1. Agreement
as to future prices shall be reached after mutual discussion and if no
agreement is reached after such discussions then DuPont may give NeoMedia
thirty (30) days notice in writing of any changes in prices and the prices
so changed shall apply to Product delivered after the expiration of such
notice.
DuPont and its affiliates shall in addition pay NeoMedia the discounts set
out in Schedule 3.2
4. Transfer of Risks and Transfer of Title
DuPont and its affiliates shall deliver the Products FOB European port
(Incoterms 2000) to the address in the PRC indicated by NeoMedia at the
time the order is placed. Title to the Products shall transfer to NeoMedia
upon shipment from European port.
5. Warranties
DuPont and its affiliates warrant that they are transferring good title to
all Product transferred, and that such Product shall meet the
specifications, descriptions and warranties set forth in DuPont's
literature referring to the Product supplied hereunder.
Except for the above, and to the extent permitted by law, DuPont and its
affiliates hereby disclaim all other warranties, express or implied, or
otherwise including warranties of merchantability or fitness for a
particular purpose. NeoMedia assumes all risk and liability resulting from
the use of the Product delivered hereunder, whether used singly or in
combination with other products.
6. Liability
To the fullest extent permitted by law, all terms, conditions, warranties
(other than those set forth herein above) and representations with respect
with the Product are hereby excluded, and in no event shall DuPont and its
affiliates be liable for (i) any claims or damages, including claims
relating to the combination of the Product with any other product(s), and
(ii) special, direct, indirect or consequential damages.
DuPont and its affiliates' liability in respect of the Product shall at
all times be limited, at the election of DuPont and its affiliates to (i)
the repair or replacement of the Product, or (ii) the purchase price of
the Product in respect of which a claim is made (where the price has been
paid).
7. Claims
NeoMedia's claim of any kind, whether as to Products delivered or for
non-delivery of Products must be notified to DuPont in writing within
thirty (30) days from date of delivery, or the date fixed for delivery (in
the case of non-delivery). Failure to give notice of claim within thirty
(30) days from date of delivery, or the date fixed for delivery (in the
case of non-delivery), shall constitute a waiver by NeoMedia of all claims
in respect of such Products.
8. Term of the Agreement
This Agreement shall be effective from the date stated herein above and
shall terminate upon receipt by DuPont of a notice from NeoMedia informing
DuPont that it has incorporated a legal entity in the PRC ("NeoMedia
China") and that NeoMedia China has obtained all requisite business
licenses and permits to conduct business lawfully in PRC. At such point,
NeoMedia shall assign all rights and obligations under this Agreement to
NeoMedia China, and DuPont shall assign all rights and obligations to
DuPont Trading (Shanghai) Co. Limited ("DPTS"). Immediately prior to such
assignment, NeoMedia China and DPTS shall translate this Agreement into
Chinese and amend the shipment terms to reflect the new situation, or if
the Parties so agree in good faith, they can enter into a new agreement
incorporating the basic terms of this Agreement and reflecting the new
situation resulting from the formation of NeoMedia China.
Prior termination of this Agreement may however be made by either Party
through a written termination notice sent to the other Party in the event
(i) the other Party is in default of its obligations under this Agreement,
which default, if capable of remedy, has not been remedied by the
defaulting Party within thirty (30) days after written notice of such
default is given by the other Party; (ii) the other Party becomes
insolvent or has a receiver, administrator, liquidator or other similar
officer appointed; (iii) the other Party's ownership changes, for example
by way of acquisition, divestiture or joint venture; or (iv) upon
termination of the technical services agreement between DPTS and Automart.
9. Assignment
Except as provided in Section 8 above, neither Party shall assign or
transfer this Agreement, in whole or in part, or any interest arising
under this Agreement without the prior written consent of the other Party.
10. Notices
Any official notices under this Agreement shall be delivered to:
if to DuPont: DuPont China Holdings Co., Ltd
Building 7, 4299 Xxx Xx Road
Xxx Xxxxxx Industrial Development Xxxx
Xxxxxxxx 000000, Xxxxx
Attn. Business Director Refinish Coatings
tel. x00.00.00000000
fax x00.00.00000000
if to NeoMedia: NeoMedia Technolgies Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 000, Xxxx Xxxxx,
XX-00000, X.X.X.
Attn. Vice President, General Manager
tel. x0.000.000.0000
fax x0.000.000.0000
11. Replacement of Prior Agreements
This Agreement shall supersede any oral or written contracts dealing with
the same subject matter as referenced herein.
12. Force Majeure
No liability shall result to either Party from delay in performance or
from non-performance of its obligations hereunder caused by circumstances
beyond the control of the Party who has delayed performance or not
performed. For the purpose of this Agreement, the following circumstances
shall be deemed to be beyond the control of such Party: act of God, war,
riots, national emergency, fire explosion, flood, strike, lock-outs,
voluntary or involuntary compliance with rules, regulations or any order
of any authority, accident, breakage or breakdown of plant, machinery or
apparatus or shortage of raw material any of which cause a total or
partial shutdown of any of DuPont's or NeoMedia's, Jinche or Automart's
operations.
The non-performing Party shall be diligent in attempting to remove any
such cause and shall promptly notify the other Party of its extent and
probable duration. If the non-performing Party who has delayed performance
or not performed on account of circumstances beyond its control is unable
to remove the causes within seven (7) days, the other Party shall have the
right to terminate, without penalty, the entire Agreement or any portion
of it.
13. Terms and conditions
Unless expressly contrary to the terms herein, supplies of Product
hereunder shall be subject to DuPont's general terms and conditions of
sales set forth on the reverse of DuPont's then current invoice form, of
which NeoMedia acknowledges receipt, to the exclusion of any other terms
and conditions.
14. Law applicable and jurisdiction
This Agreement shall be subject to the laws of Switzerland to the
exclusion of its conflict of laws principles and to the exclusion of the
1980 United Nations Conventions on the International Sale of Goods. The
Courts of Geneva, Switzerland shall have exclusive jurisdiction on any
litigation relating to or arising under this Agreement.
NeoMedia Technologies Inc. DuPont de Nemours (Belgium) BVBA
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. XxXxxxxx
