Exhibit 10.6
DIRECTORY DELIVERY AGREEMENT
BETWEEN
CINCINNATI XXXX DIRECTORY, INC.
AND
DIRECTORY DISTRIBUTING ASSOCIATES, INC.
JANUARY 1, 2003
PREAMBLE - This Agreement is made by and between Cincinnati Xxxx Media LLC,
located at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000 (referred to as
"BUYER") and Directory Distributing Associates, Inc. (referred to as "SELLER")
with principal offices located at 000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000.
The BUYER agrees to purchase and the SELLER agrees to sell the services
described in this Agreement, in accordance with the terms and conditions stated
below:
SERVICES AND CONTRACT PERIOD - The SELLER shall perform delivery of BUYER's
telephone directories and distribution related services, as defined in the
section, INITIAL DISTRIBUTION (referred to as "SERVICES").
The terms of this Agreement shall commence on January 1, 2003 and shall, except
as otherwise provided herein, continue in effect thereafter until December 31,
2005. The BUYER in its sole discretion may renew this Agreement for an
additional term of one year each in years ending December 31, 2006 and December
31, 2007, respectively. This extension option may be exercised by the BUYER
indicating to the SELLER its intention to extend the contract by December 31,
2004 for year 2005 and by December 31, 2005 for year 2006. Seller can earn
extension years based on performance within the initial three (3) year Agreement
period (see Attachment B - Performance Measurement Bonus Plan).
DIRECTORY DELIVERY SPECIFICATIONS
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COVERAGE
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The services enumerated herein to be rendered by SELLER to BUYER in the state(s)
of Ohio, Kentucky and Indiana and any other areas that are mutually agreed upon
by the parties hereto.
CHANGES
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BUYER reserves the right to change BUYER's specifications in any respect upon
written notice to SELLER provided that any such changes do not have a materially
adverse effect on SELLER's operations and provided that SELLER shall have a
reasonable period of time to make any such change. Unless otherwise provided,
BUYER shall compensate SELLER for any demonstrable increased costs or SELLER
shall make allowance for any demonstrable decreased cost incident to such
changes.
INITIAL DISTRIBUTION
--------------------
Each year, during the term of this Agreement, the BUYER shall provide to the
SELLER, prior to January 1 of each year a schedule for all deliveries to be made
during that calendar year.
Upon the request of the BUYER, and in accordance with the terms and conditions
of this Agreement, SELLER shall perform Initial Distribution responsibilities,
as described in this agreement, to BUYER's customers as BUYER shall designate,
of only such telephone directories published by BUYER.
A. Distribution Data
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BUYER shall furnish to SELLER the following information in writing at least
forty-five (45) days prior to the date on which initial distribution of a new
issue is to begin:
1. A preliminary printing/shipping schedule that includes an estimate of
the print quantities and start ship dates. This data is commonly provided
to SELLER from BUYER on a request form referred to as a 10 Week Delivery
Production Schedule, which is provided by SELLER 10 weeks prior to
Distribution Start. BUYER shall also provide an estimate of the number of
directories for
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each title to be delivered. Shipping schedule to include an estimate of
quantities and directory ship start dates. Actual detailed shipping
schedule by directory will be provided to SELLER approximately one week
before the start of each delivery.
2. The dates on which distribution shall begin and the number of days
scheduled to complete delivery.
3. The telephone number and identification of the transportation carrier
and the name of Supervisor(s) in charge of truck operations that will be
used in moving directories from the printer to SELLER's facilities
(delivery stations or warehouses).
4. Instructions for the disposal of obsolete directories.
5. The date in which SELLER will receive the Delivery Records (Data Files)
from BUYER as well as a contact name of the sender of these files.
6. Detailed instructions pertaining to changes to the scope of the
distribution area - if applicable.
7. Instructions on how and if coin phone locations should be handled.
8. Plans for the distribution of ride-along inserts and pertinent
directions.
9. Any other significant changes requested by BUYER that would impact the
distribution.
SELLER shall furnish to BUYER the following information prior to the date on
which initial distribution of a new issue of directories is to begin:
1. An operation plan to the appropriate Directory Delivery Manager of
BUYER for approval, for each distribution, at least forty-five (45)
days prior to the start of each distribution. The operational plan
should include proposed rates for route people, recruitment plan,
number of support people, location of distribution center, number of
route people required, duration of initial distribution, carrier
recruitment, salvage requirement and any other item that may be
reasonably requested by BUYER.
2. A list of managers and their respective delivery station assignments
for approval by BUYER at least 45 days prior to start of each
distribution.
3. Pro Forma cost estimate at least forty-five (45) days prior to the
start of each delivery. Pro Forma estimate would include all direct
expense estimates and will be used as the mechanism for the
administration Managed Cost Incentive Plan (see Attachment C).
B. Delivery Personnel
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1. SELLER shall be responsible for the hiring, training, compensation,
termination and all other matters relating to any persons or business
entities utilized, contracted or employed by SELLER in the conduct of its
business hereunder. The BUYER shall have no responsibility for any of the
foregoing matters, and SELLER shall indemnify, defend and hold harmless
BUYER from any liability and expenses, including reasonable attorney's
fees, incurred in defending any actions or proceedings brought against it
by reason thereof. Nothing contained in this Agreement shall be construed
to imply that SELLER or any of his agents or employees are officers or
employees of the BUYER. It is expressly agreed that SELLER is an
independent contractor.
2. SELLER shall instruct, in a uniform manner, each delivery person on BUYER's
requirements for directory distribution. These instructions shall be in
accordance with the requirements of this Section, Initial Distribution.
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3. In the event the SELLER elects to employ delivery personnel who drive
trucks or automobiles, SELLER will make certain that all such drivers meet
U.S. Department of Transportation Standards and any other federal, state or
local regulations in which the drivers should operate.
C. Delivery Stations
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1. SELLER is required to obtain the necessary facilities (delivery
stations) in each delivery area to efficiently distribute directories.
BUYER must be notified forty five (45) days in advance of occupancy if
SELLER will use any facility that has not been used previously as a
delivery station. All delivery stations must be acceptable to the
BUYER.
2. Seller shall furnish the BUYER with the following information in
writing at least forty-five (45) days prior to the delivery start date:
a. The address of the facilities from which the delivery will be
made.
b. The name of supervisor in charge of each facility.
c. The number and type of telephone lines that will be needed in
each delivery office as well as a contact name and telephone
number for the local owner or manager of each facility.
d. The opening and closing dates of the facility. These dates are
normally based upon the delivery start and finish dates, but
may be extended with BUYER's approval.
3. SELLER is responsible for all costs associated with the facilities
unless otherwise authorized in writing by BUYER. BUYER will provide
telephone service except for delivery stations outside of the
Cincinnati Xxxx Telephone operating area.
D. Shipping of Directories
-----------------------
SELLER shall receive new issue directories shipped by BUYER to delivery
stations, warehouses and other delivery points (facilities) approved by BUYER.
The shipping instructions shall be coordinated between the SELLER and designated
representative of BUYER. SELLER will be responsible for issuing the shipping
instructions. Directories will be shipped by truck or rail to delivery points.
Initial shipments will arrive before 8:00 a.m. (or as negotiated) on the day
delivery starts and SELLER will coordinate deliveries with BUYER's carrier until
all are received.
SELLER will furnish BUYER or BUYER's agent with one copy of the shipper's
receipt for each directory shipment and will be responsible for verifying the
accuracy of the number and type of directories in each trailer. The shipper's
receipts should be provided to BUYER in same sequence as trailer log. For any
loss or damage, see "Directory Loss or Damage".
SELLER is responsible for instructing carrier to place the trailers in a safe
and secure location. The SELLER will be responsible for any damages that occur
to the carrier's equipment or parking surface, i.e., towing, rigging, and snow
plowing.
SELLER shall have available at such delivery points adequate equipment and labor
to receive and handle directory shipments promptly. SELLER shall unload trailers
or box cars on a first-in, first-out (FIFO) basis.
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SELLER is responsible for release of trailers from the delivery points as
quickly as reasonably possible to avoid detention charges. BUYER may xxxx the
SELLER for excess detention charges for which reasons SELLER has control. "Free
time" starts at the exact date and time of the trailer's arrival at the delivery
point. "Free time" excludes Saturdays and Sundays. However, detention charges
are assessed on all days, after the "free time" that the transportation company
is available to pick up trailers, including Saturdays, Sundays and Holidays.
SELLER shall contact shipper to determine allowable "free time".
SELLER shall not be liable for detention charges incurred for reasons beyond
SELLER's control or reasons that SELLER could not have reasonably foreseen and
provided for, provided that, SELLER immediately notifies the BUYER of the reason
within the allowable "free time". SELLER shall be liable for detention charges
incurred for reasons within SELLER's control or reasons that SELLER could have
reasonably foreseen and avoided. BUYER is responsible for all costs, except
those stated above, associated with transshipping or subsequent transportation
of directories following directory shipments from BUYER's printer, unless
otherwise approved by BUYER. BUYER is responsible for transshipping from a
warehouse to delivery station or from delivery station to delivery station, if
pre-approved.
The SELLER will be required to maintain trailer logs and will reconcile all
detention bills with the BUYER before payment is made for the distribution.
SELLER is responsible for all costs associated with transshipping or subsequent
transportation of directories from any delivery point to another delivery point
following directory shipments from BUYER's printer, unless otherwise specified
by BUYER. For example, if a trailer has to be moved off a delivery site for a
weekend and is then returned, the SELLER is responsible for this transportation
cost. BUYER is responsible for transshipping from a preapproved warehouse to
delivery station.
SELLER shall be responsible for preparing an accurate trailer log(s). Included
are: trailer number, time and date requested, time and date received, time and
date released and time and date picked up.
SELLER is responsible for notifying BUYER with the amount of any directories
left over after the completion of the initial distribution. BUYER will direct
SELLER as to where directories are to be moved.
E. Delivery Records - General
--------------------------
BUYER shall furnish to SELLER, according to BUYER's schedule, at least 30 days
prior to the date on which initial distribution of a new issue is to begin, a
set of delivery records in an electronic format. These records show the name,
street address and telephone number of each customer and the quantity/type of
the directories, which shall be delivered, to each customer. In the case of
non-published telephone numbers, the telephone numbers will be omitted or
scrambled.
All delivery records furnished by BUYER, and any master routing files, which
SELLER established therefrom, and any copy thereof, shall be the property of the
BUYER. These delivery records and master routing files shall be protected in
accordance with the section entitled, DELIVERY RECORDS LOSS OR DAMAGE, and shall
not be used by SELLER for any purpose other than the delivery of BUYER's
directories. They shall be maintained as confidential in accordance with the
section entitled, BUYER's INFORMATION and the section entitled, USE OF
INFORMATION.
F. Delivery Records
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Route Sheets - All general delivery and coin route sheets shall, within three
(3) business days, be returned to the BUYER after the route has been telechecked
unless BUYER notifies SELLER of other arrangements.
All large user business customer route sheets must be returned in alphabetical
order by name at the close of the distribution.
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G. Regular Customers
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A regular customer is defined as a customer receiving less than twenty-five (25)
of one type directory. In making distribution of a new issue of a directory,
SELLER shall deliver the directories in good condition to each customer shown on
the delivery records in accordance with the number and type of directories
specified thereon.
All directories shall be delivered by hand in accordance with the following:
1. SELLER shall deliver to each customer shown on the delivery records the
number of directories specified thereon, in good condition and in a timely
manner and shall record on the delivery records the information called for
thereon regarding the delivery or attempted delivery to each customer. Delivery
shall be made with the least possible inconvenience to BUYER's customers. In the
event a customer is not at home to accept the directory, it is to be left in a
place protected from damage and the weather where the customer may easily find
it or in accordance with special instructions from BUYER. All directories shall
be delivered by hand, provided, however, that SELLER shall mail directories or
delivered by parcel service or other means of transportation when instructed by
BUYER. If directories are mailed, such mailing shall be in accordance with
United States postal regulations applicable to the most economical class of
service under which directories may be mailed.
2. The directories must never be left at curbside, placed in or on mailboxes,
or be thrown.
3. All directories must be delivered to residential customers' satisfaction.
The book will be placed by hinge side of the front door unless otherwise
specified by the BUYER or customer.
4. All directories for "Regular" business customers must be delivered inside.
A "Regular" business customer is a delivery stop that is not considered a large
user.
5. All directories must be placed in plastic bags provided by BUYER unless
books are to be delivered inside.
6. In the event of extreme delivery circumstances (i.e. extreme rural areas
with long driveways, gated communities, homes with aggressive dogs, etc.), the
delivery execution for each possible event will be discussed and mutually agreed
upon prior to each delivery. Final solution will be based on reasonableness and
safety for the carrier.
H. Coin Telephone Customers
------------------------
If in the event that BUYER requests SELLER to make distribution to Public
Telephone Stations, and the binder is deemed inoperable, BUYER requests SELLER
to still leave a directory if there is a shelf of flat area available to place
it. SELLER shall provide a report to BUYER of all inoperable binder conditions.
If making distribution of a new issue of a directory to Cincinnati Bell's public
telephone locations, SELLER shall remove any old directory from the binder or
housing device and insert the new directory. SELLER will not be required to
replace the coin binders.
I. Large User Business Customers
-----------------------------
A large user business customer is defined as a customer receiving 25 or greater
directories of one type.
1. SELLER will follow instructions provided by BUYER for these customers.
Delivery quantities are provided on the customer's delivery record. SELLER will
contact each large user business customer to verify directory quantities,
coordinate location and time of delivery.
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2. Unless otherwise instructed by BUYER, deliveries to large user business
customers shall be made in accordance with terms of paragraph G., Regular
Customers of this section, Initial Distribution. Directories delivered to large
user business customers are not placed in plastic bags.
3. SELLER will obtain a signed receipt from each larger user business
customer. In addition to containing the customer's name and address, this form
will also contain the quantity of each directory title that was left with the
customer. A copy of the receipt will be left with the customer and the original
will be kept by SELLER. At conclusion of distribution, SELLER will turn over all
signed receipts to BUYER.
4. SELLER will distribute directories, on the first day of the delivery
schedule, to designated BUYER locations (e.g., Business Offices, etc.)
J. Delivery Time
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SELLER shall complete initial distributions in strict accordance with the
delivery schedule specified by the BUYER. The delivery schedule may be changed
from time to time by the BUYER. Unless notified otherwise by BUYER, SELLER must
deliver a minimum of 65% of the directories by the 15/th/ of the month of
issuance of the directory being delivered. 100% must be delivered by the last
day of the issuance month of the directory, or SELLER will be ineligible to
receive bonus award or term extension.
Within this schedule, SELLER shall comply with all customer requests for
additional copies during the specified delivery schedule. Within this schedule,
SELLER shall also perform any re-deliveries or re-dispatches due to missed
deliveries.
Working days include all days, except nationally recognized holidays and
Sundays, unless otherwise authorized by the BUYER.
By mutual agreement, the period for providing additional directories upon
request may be extended. The time during which SELLER is delayed in distributing
a new issue by neglect of BUYER or by acts of God or other causes which SELLER
could not reasonable have foreseen and provided for, shall be added to the time
for distribution specified by BUYER.
A delivery is understood to be complete at that point in time when one hundred
(100) percent of all delivery routes have been dispatched, delivered, and
returned to the SELLER and the delivery station is closed. A station is closed
when the premise has been returned to the Landlord for his use, all equipment,
materials/supplies, and products have been returned to BUYER and the SELLER has
vacated said premises.
K. Delivery Hours
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The SELLER shall deliver all directories with the least possible inconvenience
to BUYER's customers. SELLER shall make deliveries to regular and public
telephone customers on Monday through Saturday between the hours 8:00 a.m. to
sunset unless approval of the BUYER is first secured.
Deliveries to large user business customers shall be made during normal business
hours or according to the customers' responses to SELLER's telephone calls (See
paragraph I, Large User Business Customers, above).
L. Performance and Quality Checks
------------------------------
The SELLER shall conduct verification of performance and quality on all
distributions as follows:
1. Check In/Telephone Quality Check - At the time a delivery person turns in
the records of a completed route, a telephone-quality check, in the presence of
the delivery person. One per cent (1%) of customers
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(with minimum of 5) shall be contacted for each route prior to the SELLER making
payment to the delivery contractor. The customers contacted should come from
various areas of the route and should be representative of the entire route.
a. Regular Customers - A minimum of 3% of the regular customers must be
called for telechecking. All regular telephone quality checking shall be
completed within two (2) business days of route check-in. The calls must be made
from a random sampling of delivery stops, calling the beginning, middle and
ending segments of the route sheet. Also, the calling should vary from one route
sheet to the other. If a "no" call is encountered on a call, then the caller
must call the delivery stops on both sides of the "no" response. If both of
these calls result in a "yes" response, go to the next route sheet. If another
"no" call is encountered, all the remaining customers on the route sheet must be
called.
b. Large User Business Customers
1. A check-in quality telephone check must be completed and the results of
such check must meet the SELLER's delivery quality requirements before SELLER
permits the delivery person to deliver another route.
During initial delivery, the SELLER shall furnish a weekly report summarizing
the results of the telephone quality checks to the BUYER. This report shall be
furnished each Friday before 12:00 p.m. (noon).
2. The SELLER must check all delivery routes for delivery records that are
marked by the delivery personnel as unable to locate, moved, over or under
delivered quantities or unmarked delivery records. These records shall be
telechecked, transferred to dispatch, redelivered and/or mailed and the records
updated. Every reasonable attempt shall be made to complete dispatch within
forty-eight (48) hours.
M. Delivery Reports (also see Attachment A for Standard Reports)
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SELLER shall furnish BUYER the following reports:
1. Prior to delivery, reports concerning delivery record discrepancies that are
uncovered in the preparation of delivery routes and/or reported by delivery
personnel are to be furnished at the completion of delivery.
2. Reports concerning the quantity of routes assigned/completed and directories
assigned/delivered shall be furnished daily by 12:00 p.m. (noon).
3. Such other reports as BUYER may request pertinent to the delivery of
directories and performance of services.
The SELLER will be held accountable for the accuracy of these reports.
N. Failure to Perform
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If SELLER at any time refuses, neglects or fails in whole or in part, without
fault of BUYER, to cause adequate and timely performance of its obligations
under this Agreement, BUYER in addition to any other right or remedy provided
for by law or in this Agreement, shall have the right to perform or arrange to
have performed by others such obligation or obligations at BUYER's cost and
expense, provided, however, that SELLER shall pay to BUYER promptly upon
presentation of a xxxx therefore, the amount of BUYER's incurred expenses in
connection with said performance which exceeds the amount that would have been
payable to SELLER had it been performed properly.
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O. Inserts
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SELLER may in addition to placing a directory (ies) in a delivery bag(s), be
requested by BUYER to place an insert(s) or other Marketing material in the
delivery bag. Inserts may be segmented to specific demographics.
P. Excluding Delivery of a Directory
---------------------------------
In the event that any of the deliveries are not required by the BUYER during any
year of the effective term of this Agreement, that portion of the Agreement
shall be considered terminated in accordance with the section, "TERMINATION."
Q. Extending the Delivery Area of a Directory
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In the event that a delivery is required in a new directory area that is
contiguous to or within the BUYER's existing distribution area, the BUYER will
provide specifications and notify the SELLER as soon as possible prior to the
start of the delivery. SELLER shall provide a delivery cost estimate, including
fee, within 30 days of request to be accepted by the BUYER prior to the start
date of the delivery. This extended delivery shall be subject to the terms of
this Agreement.
If such extended delivery will occur again during the remaining term of this
Agreement, then the delivery and its fixed price will become a part of this
Agreement.
R. Attempts to Deliver
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BUYER will not specifically reimburse the SELLER for attempting to deliver
books. Compensation will be made only for those books actually delivered.
S. Additional Directory Distribution Expense (Pre-Determined and End of
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Delivery Mailings)
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BUYER will not be financially responsible for mailing expenses incurred that
exceed the agreed upon quantities. Pre-Determined mailing of directories will
not exceed 15,000 for both delivery campaigns, unless SELLER obtains written
consent from BUYER, and consent should not be reasonably withheld. Additionally,
directory quantities for end of delivery mailing will not exceed six-tenths of
one percent (.006) for both delivery campaigns, without written consent of
BUYER. The SELLER will be financially responsible for actual mailing costs for
deliveries exceeding the established thresholds without expressed written
consent.
ASSIGNMENT - SELLER shall not assign any right or interest under this Agreement
nor delegate any work or other obligation to be performed or owed by SELLER
under this Agreement without the prior written consent of BUYER. Any attempted
assignment or delegation in contravention of the above shall be void and
ineffective. Any assignment of monies shall be void and ineffective to the
extent that (1) SELLER shall not have given BUYER at least thirty (30) days
prior written notice of such assignment and (2) such assignment attempts to
impose upon BUYER obligations to the assignee additional to payment of such
monies or to preclude BUYER from dealing solely and directly with SELLER in all
matters pertaining to the Agreement. This Agreement may be assigned by BUYER at
any time without SELLER's consent to any parent, subsidiary, or affiliate of
BUYER or any person or entity that purchases all or substantially all of the
assets of BUYER or merges or consolidates with BUYER.
AUTHORITY - In addition to any other limitations contained in this Agreement,
SELLER shall not have, nor shall it represent itself as having, any authority
to: (a) make contracts in the name of or binding on the BUYER or pledge the
BUYER's credit or extend credit in the BUYER's name, (b) make any
representations on behalf of the BUYER with respect to the services which are
the subject of the Agreement, or incur or assume for the BUYER any liability or
obligation other than those undertaken under this Agreement, (c) or execute any
receipt or acknowledgement of payment or satisfaction of any debt or obligation
owed to the BUYER in the name of the BUYER.
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BANKRUPTCY - Either party may terminate this Agreement by notice in writing in
the event that the other makes an assignment for the benefit of creditors; or
admits in writing inability to pay debts as they mature; or a proceeding is
instituted under any provision of the Bankruptcy Reform Act of 1978 (the
"Bankruptcy Code") by the other, or against the other, and is acquiesced in or
is not dismissed within sixty (60) days, and the other party or a trustee or
receiver of the other party does not assume this Agreement, as the case may be,
in accordance with Section 365 of the Bankruptcy Code.
BUYER'S INFORMATION - All specifications, drawings, sketches, models, samples,
tools, computer programs, technical information, confidential business
information or data, written, oral or otherwise ("INFORMATION") obtained by
SELLER hereunder or in contemplation hereof shall remain BUYER's property. All
copies of such INFORMATION in written, graphic or other tangible form shall be
returned to BUYER upon request. Unless such INFORMATION was previously known to
SELLER free of any obligation to keep it confidential or has been or is
subsequently made public by BUYER or a third party, it shall be kept
confidential by SELLER, shall be used only in the filling of orders, or in
performing otherwise hereunder, and may be used for other purposes only upon
such terms as may be agreed upon in writing by BUYER.
BUYER'S PROPERTY - SELLER shall not use any facilities, equipment, materials
storage or office quarters (the "FACILITIES") owned or rented by BUYER for any
purpose other than delivery of directories without the prior written approval of
BUYER. Approval must be obtained prior to each instance of such usage.
If SELLER actually used any FACILITIES owned or rented by the BUYER, SELLER
agrees to indemnify the BUYER for any and all losses, damages, claims, demands,
suits and liabilities (including reasonable attorneys' fees) of any kind and
nature whatsoever (including but not limited to claims resulting from injuries
or death to persons or damage to property) in any way arising out of or
resulting from SELLER's maintenance, possession, operation, use, storage or
movement of or at the FACILITIES or any accident in connection therewith. SELLER
further acknowledges that SELLER accepts the FACILITIES "as is, where is" and
that BUYER has no responsibility for their condition or state of repair. SELLER
agrees not to remove the FACILITIES from the premises of BUYER and to return the
FACILITIES upon completion of use, or at such earlier time as BUYER may request,
in the same condition as when received by SELLER, reasonable wear and tear
expected. Such use shall be controlled by the section, LIABILITY, INSURANCE,
INDEMNITY.
CLAIMS AND DELIVERY COMPLAINTS - SELLER shall, at its expense, during the
delivery period and thereafter, receive, investigate and handle all complaints
and claims of any nature, whether or not involving personal injury or property
damage, in any way arising out of or resulting from delivery, non-delivery or
unsatisfactory delivery of the directories. The handling of all claims and
complaints shall be done within twenty-four (24) hours after the receipt of such
claims and complaints whether reported directly to SELLER by customer or by
BUYER. SELLER shall maintain a log of such claims and complaints. The log shall
be provided to the BUYER at the end of the distribution unless the BUYER
requests it before then. The log will include:
Customer's Name
Customer's Address
Customer's Telephone Number
Book Involved
Nature of Complaint
Root Cause/Resolution
SELLER shall handle all claims and complaints in such a manner as to not involve
BUYER in litigation or adversely affect its relations with the public.
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COMPLIANCE WITH LAWS - SELLER shall comply with all applicable federal, state,
county and local laws, ordinances, regulation and codes (including procurement
or required permits or certificates) in SELLER's performance hereunder,
irrespective of whether a specification is furnished. This includes, but is not
limited to, compliance with the Occupational and Safety Health Act of 1970 as
amended, the Small Business Investment Act of 1958 as amended, Vietnam Era
Veterans Readjustment Assistance Act of 1972 as amended, the Rehabilitation Act
of 1973 as amended, the Americans With Disabilities Act of 1990 and Executive
Orders Number 11246 (Equal Employment Opportunity), 11625 (National Program for
Minority Business Enterprises), 11701 (Employment of Veterans by Federal
Agencies and Government Contractors and Subcontractors), 11758 (Authority Under
Rehabilitation Act of 1973), 12138 (Creating a Women's Business Enterprise
Policy and Prescribing Arrangements for Developing Coordinating, and
Implementing a National Program for Women's Business Enterprise), and any
applicable state or local law, rule or regulation affecting safety and health.
If materials, services or containers furnished are required to be constructed,
packaged, labeled or registered in a prescribed manner, SELLER shall comply with
federal law and, in addition, with applicable state or local law. SELLER agrees
to defend, indemnify and hold harmless BUYER for any loss, damage, claims,
demand expenses, penalty, fine, judgment, settlement or liability sustained
because of SELLER's noncompliance.
CONTINGENCY - Neither of the parties shall be held responsible for any delay or
failure in performance hereunder caused by fires, strikes, embargos,
requirements imposed by Government regulation, civil or military authorities,
acts of God or by the public enemy or other similar causes beyond such party's
control. However, SELLER's delay or failure to perform shall not be excused by a
default of any of its subcontractors or suppliers unless such default arises out
of causes beyond the control of both the SELLER and its subcontractor or
supplier and without the fault or negligence of either of them, and unless the
supplies or services to be furnished by such subcontractor or supplier are not
obtainable from other sources. If such contingency occurs, the party injured by
the other's inability to perform may elect to: (a) terminate this Agreement or
part thereof as to material and/or services not already received; (b) suspend
this Agreement for the duration of the delaying cause, buy or sell elsewhere
material and/or services to be bought or sold hereunder, and deduct from any
commitment the quantity bought or sold of for which commitments have been made
elsewhere; or (c) resume performance hereunder once the delaying cause ceases
with an option in the injured party to extend the period hereunder up to the
length or time the contingency endured. Unless written notice is given within
thirty (30) days after such injured party is apprised of the contingency, (c)
shall be deemed selected.
CORRECTION OF ERRONEOUS PERFORMANCE - BUYER shall not reimburse SELLER for the
expense incurred by SELLER for work required to rectify mistakes made by SELLER
or any of its agents or subcontractors in rendering services under this
Agreement.
DEFAULT - Time is of the essence to this Agreement. In the event SELLER fails to
deliver the Directories and/or complete the performance of services ordered
hereunder within the time specified or in accordance with agreed upon schedules,
or in the event SELLER is in breach or default of any other term, condition or
provision of this Agreement and if such breach or default shall continue for ten
days after BUYER notifies SELLER thereof, then, in addition to all other rights
and remedies provided hereunder or at law or equity, BUYER shall have the right
to cancel this Agreement in whole or in part.
DELIVERY OF OTHER MATTER - SELLER shall not deliver or permit its servants,
agents, employees or subcontractors to deliver anything with or in connection
with the delivery of BUYER's directories without express written permission from
BUYER. SELLER shall distribute with said directories such other matter as BUYER
may request SELLER to distribute.
DELIVERY RECORDS LOSS OR DAMAGE - SELLER shall institute procedures to protect
BUYER's delivery records and master routing files. Notwithstanding the section
entitled CONTINGENCY, if any delivery records and master routing files in
graphic, written or machine readable form, owned or furnished by BUYER are lost,
damaged or rendered unusable or irretrievable while the delivery records and
master routing files are in SELLER's possession or that of SELLER's agents,
subcontractors or representatives or under SELLER's or their direction or
control, SELLER shall reconstruct the delivery records and master routing file
to the condition previously existing at no charge to BUYER within a time
specified by
10
BUYER. (This reconstruction, however, shall not limit BUYER's rights under the
section, USE OF INFORMATION). BUYER shall furnish SELLER with source documents
or other input data that BUYER has available for such reconstruction. Should
SELLER fail to timely reconstruct such delivery records and master routing
files, or should such input data be unavailable, SELLER shall be liable for
BUYER's cost of regenerating the required delivery records and master routing
files and any other economic loss caused to BUYER.
DIRECTORY LOSS OR DAMAGE - All telephone directories are and shall remain the
sole property of BUYER. SELLER shall not put them to any use other than
distribution pursuant to this Agreement.
SELLER shall be responsible for any loss or damage resulting from any cause
whatsoever to copies of all directories while in SELLER's custody (or custody of
SELLER's agents, carriers, or other subcontractors), including but not limited
to loss or damage in facilities or in transit, and shall reimburse BUYER for
loss or damage.
When loss or damage has occurred to directories prior to the time that the
SELLER takes custody or possession, the SELLER shall properly note the damage or
loss on both the carrier's and consignee's copy of the delivery receipt and
trailer log. Each copy of the delivery receipt shall be signed by the SELLER and
the carrier's agent. The SELLER shall also request the delivery carrier to
inspect damaged material and secure from the carrier an inspection report or
waiver of inspection. The SELLER shall also notify the BUYER of the loss or
damage immediately after receipt of directories.
The liability of the SELLER for loss or damage to directories shall be limited
to the actual replacement value per directory (the replacement value per
directory is the price listed in the current year edition of the Telephone
Directory Price Catalog, published by the National Yellow Pages Service
Association), plus BUYER administrative costs and transportation expenses to
deliver replacement directories to SELLER facilities; provided BUYER shall not
be required to replace the lost or damaged directories; and provided, however,
that SELLER shall not be liable for loss or damage arising from war, nuclear
fission or fusion, riot, insurrection, civil disobedience, invasion,
hostilities, nor against seizure, destruction or confiscation by order of any
Government or public authority if such seizure, destruction, or confiscation did
not result from SELLER's acts or omissions.
ENTIRE AGREEMENT - This Agreement shall constitute the entire agreement between
the parties and may not be modified or rescinded except by a writing signed by
both parties.
The terms hereof are acknowledged to apply specifically and exclusively to this
Agreement and are not incorporated in any other agreement except by express and
explicit provisions of such agreements.
GOVERNMENT REQUIREMENTS - Appendix A, "GOVERNMENT REQUIREMENTS", shall form a
part of this Agreement and any amendment hereto.
IMPLEADER - SELLER agrees that it will not implead or bring any action against
BUYER or its employees based on any claim by any person for personal injury or
death that occurs in the course of scope of employment of such person by SELLER
and that arises out of material or services furnished under this Agreement.
INFRINGEMENT - The following terms apply to an Infringement or claim of
Infringement of any patent, trademark, copyright, trade secret or other
proprietary interest based on the manufacture, use or sale of any material,
services or equipment furnished to BUYER under this Agreement or in
contemplation of this Agreement. SELLER shall defend, indemnify and hold
harmless BUYER and BUYER's customers for any loss, damage, liabilities, claims,
demands expense, penalty, fine, judgment, settlement or liability that may
result by reason of any such infringement or claim, except where such
Infringement or claim arises solely from SELLER's adherence to BUYER's written
instructions or directions which involve the use of merchandise or items other
than (1) commercial merchandise which is available on the open market or is the
same as such merchandise, or (2) items of SELLER's origin, design or selection.
BUYER shall indemnify SELLER in cases where SELLER is acting pursuant to BUYER's
written instructions or
11
directions. Each party shall defend or settle at its own expense, any action or
suit against the other for which it is responsible under this clause. Each party
shall notify the other promptly or any claim of Infringement for which the other
is responsible, and shall cooperate with the other in every reasonable way to
facilitate defense of any such claim.
Should any of the material, services or equipment furnished to BUYER hereunder
or in orders placed hereunder, or in the operation hereof, become the subject of
a claim of any Infringement of a patent, trademark, copyright, trade secret or
other proprietary interest, SELLER shall, at its expense, and at BUYER's option,
either procure for BUYER the right to continue using the material, services or
equipment, replace or modify the same so that they become non-infringing, or
refund to BUYER the full purchase price of the infringing items.
INVOICE - SELLER's invoice shall be rendered after services are satisfactorily
performed. The original invoice and one copy shall be mailed to BUYER at the
following address within sixty (60) days of delivery completion and shall
include all cost associated with that respective delivery. Original invoices
submitted to BUYER after sixty (60) days will be subject to a 1% reduction each
month it is delayed. BUYER will not be responsible for carry-over expenses from
any previous deliveries. Conversely, a late payment fee of one percent (1%) per
month will be applied for any invoice not paid by BUYER within forty-five (45)
days from receipt and mutual approval. BUYER will be eligible for a pre-payment
discount of 1.2% on 90% of the mutually agreed upon delivery Direct Cost
estimated. SELLER will submit an estimate of Direct Cost for each delivery, one
month before actual delivery start. BUYER would be required to pay the invoice
within 30 days in order to take the discount. Pre-payment Discount invoicing and
payment schedule is detailed below. BUYER, at its sole discretion can take the
discount, or forfeit the discount and follow the standard invoicing and payment
schedule described above.
------------------------------------------------------------------------------
Delivery Invoice Date Payment Date
------------------------------------------------------------------------------
June April 1 May 1
------------------------------------------------------------------------------
November September 1 October 1
------------------------------------------------------------------------------
Invoices should be sent to:
Mr. Xxx Xxxxxx
Manager - Production & Distribution Services
Cincinnati Xxxx Directory
000 Xxxx Xxxxxx - Xxxxx 000
Xxxxxxxxxx, XX 00000
LIABILITY, INSURANCE, INDEMNITY - All persons furnished by SELLER, including
subcontractors, shall be considered solely SELLER's employees or agents; and
SELLER shall be responsible for compliance with all laws, rules, and regulations
involving, but not limited to, employment of labor, hours of labor, working
conditions, payment of wages and payment of taxes, such as unemployment, social
security and other payroll taxes, including applicable contributions from such
persons when required by law.
SELLER agrees to indemnify, defend and save buyer harmless from any loss,
damage, liabilities, claim demands, expense, penalties, fines, judgments or
settlements (including the costs, expenses and reasonable attorney's fees on
account thereof) that may be made: (1) by any third person for injuries,
including death to persons or damage to property, including theft, resulting
from SELLER's acts or omissions, or those of persons furnished by SELLER
hereunder; (2) by any third person for injuries, including death to persons or
damage to property, caused by any material or equipment, if any, supplied by
SELLER hereunder in a defective or dangerous condition; or (3) under Worker's
Compensation, or similar employer/employee liability acts, against BUYER by
persons provided by SELLER. SELLER agrees to defend BUYER at BUYER's request,
against any such reasonable liability, claim or demand. The foregoing
indemnification shall apply whether SELLER or BUYER defends such suit or claims
and whether the death, injury or property damage is caused by the sole acts or
omissions of SELLER or by the concurrent acts or omissions of BUYER and SELLER
hereunder. BUYER agrees to notify SELLER promptly of any written claims or
12
demands against BUYER for which SELLER is responsible hereunder. If SELLER is
defending BUYER in any action, lawsuit or proceeding, SELLER may not settle any
such action, suite or proceeding unless SELLER (or its insurer) pays the amount
of such settlement.
SELLER shall maintain, during the term thereof, all insurance and/or bonds
required by law, including but not limited to:
1. Workers Compensation insurance as prescribed by the law of the state in
which the work is performed.
2. Employers Liability insurance with limits of at least $250,000 each
occurrence.
3. Comprehensive general liability insurance (including but not limited to
product liability and contractual liability coverage), with limits not
less than $3,000,000 combined single limits for both bodily injury
and/or property damage for any one occurrence.
4. Comprehensive automobile liability insurance (if the use of automobiles
is required), with limits not less than $1,000,000 combined single
limits for both bodily injury and/or property damage for any one
occurrence.
5. Excess Liability, in the Umbrella Form and on an Occurrence Basis, with
limits of at least $3,000,000 combined single limit for each
occurrence.
SELLER agrees that SELLER, SELLER's insurer(s) and anyone claiming by, through,
under or in behalf of SELLER shall have no claim, right of action or right of
subrogation against BUYER based on any loss or liability insured against under
the foregoing insurance.
SELLER shall furnish to BUYER prior to the start of work, certificates or
adequate proof of the foregoing insurance.
SELLER shall also require its subcontractors, if any, who may enter upon BUYER
premises to maintain similar insurance and to agree to furnish BUYER, if
requested, certificates or adequate proof of such insurance. Certificates
furnished by SELLER or its subcontractors shall contain an endorsement to the
effect that BUYER has been added as an additional insured and shall contain a
clause stating the "BUYER is to be notified in writing at least thirty (30) days
prior to cancellation of, or any material change in, the policy."
LICENSES - No licenses, express or implied, under any patents, trade names,
marks, or copyrights are granted by BUYER to the SELLER under this Agreement.
MISCELLANEOUS SERVICES - SELLER shall perform such miscellaneous services for
BUYER as the parties may mutually agree from time to time.
NON-COMPETE - During the term of the AGREEMENT, and any earned extension year's,
SELLER and any subsidiaries, and their respective successors and assigns, hereby
agrees that it, and they, will not distribute another directory, or
directory-type, product in BUYER'S current or rescoped delivery areas.
NON-WAIVER - BUYER's failure at any time to enforce any of the provision of this
Agreement or any right or remedy available hereunder or at law or equity, or to
exercise any option herein provided will in no way be construed to be a waiver
of such provisions, rights, remedies or options or in any way to affect the
validity of this Agreement. The exercise by BUYER of any rights, remedies or
options provided hereunder or at law or equity shall not preclude or prejudice
the exercising thereafter of the same of any other rights, remedies or options
provided hereunder or at law or equity shall not preclude or prejudice the
exercising thereafter of the same of any other rights, remedies or options.
13
NOTICES - Any notices or demand which under the terms of this Agreement or under
any statue must or may be given or made by SELLER or BUYER shall be in writing
and shall be addressed to the respective parties as follows:
To BUYER: Xx. Xxxx Xxxxxxx
CFO, Vice President - Finance & Administration
Cincinnati Xxxx Directory, Inc.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
To SELLER: Mr. Xxx Xxxxxx
Executive Vice President
Directory Distributing Associates, Inc.
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Such notice or demand shall be deemed to have been given or made when sent by
telegram or other communication or when deposited, postage prepaid in the U.S.
Mail.
The above addresses may be changed at any time by giving thirty (30) days prior
written notice as provided above.
PERMANENT AND TEMPORARY PERSONNEL - SELLER shall provide and maintain adequate
and proper personnel (temporary and permanent) and facilities to satisfactorily
accomplish and supervise the work to be performed under this Agreement. Such
personnel shall be trained and supervised by SELLER to assure their performance
of this Agreement and in a manner acceptable to BUYER.
PHASE-IN/PHASE-OUT - If BUYER selects another supplier to perform work and
services similar to those covered by this Agreement for a term subsequent to the
termination or to the expiration date of the Agreement, and if BUYER chooses to
initiate a phase-out/phase-in program, BUYER will give SELLER reasonable written
notice prior to the expiration date of this Agreement. Upon such notification,
SELLER shall commence a phase-out/phase-in program in accordance with BUYER's
written instructions. SELLER shall cooperate with BUYER and with the incoming
supplier to facilitate the phase-out/phase-in program.
PLANT RULES AND GOVERNMENT CLEARANCE - All persons furnished by SELLER shall,
while on the premises of BUYER or BUYER's customers, comply with all plant rules
and regulations, and, where required by government regulations, submit
satisfactory clearance from the U.S. Department of Defense and other federal
authorities concerned. SELLER shall acquaint itself with conditions governing
the delivery, receipt and storage of materials at the work site so that SELLER
will not interfere with BUYER's operations. Storage space will not necessarily
be provided adjacent to the work site. Therefore, SELLER shall be expected to
select, uncrate, remove and transport materials from the storage areas provided.
SELLER shall not stop delay or interfere with BUYER's work schedule without the
prior approval of BUYER's Representative. SELLER shall provide and maintain
sufficient covering to protect BUYER's stock and equipment from the action of
SELLER's work.
PRICING SCHEDULE- See Attachment D for SELLER's Fee Schedule.
PERFORMANCE MEASURE BONUS PLAN- See Attachment "B"
PUBLICITY - SELLER agrees to submit to BUYER all advertising, sales promotion,
press releases and other publicity matters relating to the "SERVICES" performed
by SELLER under this Agreement wherein BUYER's names or marks are mentioned or
language from which the connection of said names or marks therewith may be
inferred or implied; and SELLER further agrees not to publish or use such
advertising, sales promotion, press releases, or publicity matter without
BUYER's prior written approval.
14
QUALITY COMMITMENT - Quality is a process of assuring conformance to each and
every term, condition and specification of this Agreement. SELLER agrees that
its commitment to quality and the processes it has in place to fulfill this
commitment with respect to each service and material provided by SELLER are
primary and material requirements of this Agreement. In addition to other rights
and remedy available to BUYER under this Agreement, BUYER reserves the right to
assure, throughout the term of this Agreement, SELLER's continued commitment to
quality and SELLER agrees to take appropriate steps, as noted by BUYER, to
improve SELLER's commitment to quality. If SELLER fails to fulfill this
commitment to quality, BUYER may terminate this Agreement per the clause
entitled "TERMINATION".
SELLER will demonstrate commitment to a Quality Improvement Process by
providing:
1. A published statement of its quality policy signed by an officer of the
company;
2. An established means of measuring the reporting customer satisfaction;
3. A quality training and awareness program;
4. A continuous Quality Improvement Process;
5. An established income Material Quality Inspection Program;
6. An established means of monitoring conformance to requirements for product,
materials and/or services; and
7. A demonstrated ability to correct non-conformances by achieving and
maintaining the delivery of conforming material to BUYER's agents.
RECORDS AND AUDIT - Seller shall maintain complete and accurate records of all
amounts billable to and payments made by BUYER hereunder in accordance with
generally accepted accounting practices. SELLER shall retain such records for a
period of three (3) years from the date of final payment for material or
services covered by this Agreement. SELLER agrees to provide reasonable
supporting documentation concerning any disputed amount of invoice to BUYER
within thirty (30) days after BUYER provides written notification of the dispute
to SELLER. BUYER and its authorized agents and representatives shall have access
to such records for purposes of audit during normal business hours during the
term of this Agreement and during the respective periods in which SELLER is
required to maintain such records. The correctness of SELLER's billing shall be
determined from the results of such audits. SELLER shall permit BUYER's
representatives to examine and audit such records and all supporting
documentation and to reproduce same at reasonable times and places as mutually
agreed to by the parties. SELLER's Controller will provide a letter of
certification with all billing invoices for directories delivered confirming the
accuracy of invoices.
RELEASES VOID - Neither party shall require waivers or releases of any personal
rights from representatives or customers of the other in connection with visits
to its premises and both parties agree that no such release or waiver shall be
pleaded by them or third persons in any action or proceeding.
REPORTS TO SELLER - SELLER shall furnish BUYER such reports as BUYER may request
pertaining to the delivery of directories and performance of other services
pursuant to this Agreement. Such reports shall be provided in accordance with
instruction from BUYER (see Attachment 1).
RESCOPE - From time to time BUYER may change the scope of a delivery. Examples
of a rescope include but are not limited to the following: (1) Delivery by hand
versus mail, (2) Delivery by mail versus hand, (3) Expansion of a contiguous
Cincinnati Xxxx publishing area (i.e., Cincinnati Yellow Pages directory
delivered into the Xxxxxx County area which did not receive this directory), and
(4) Development of other directories in a particular area.
15
With any rescope, BUYER may at its option request competitive quotations for the
rescope work. BUYER is not obligated to give the rescope work to SELLER.
If BUYER decides that SELLER will deliver any directory not included in the
specifications, BUYER is free of any obligation the SELLER may have for any
losses in revenue incurred by the SELLER due to a rescope.
BUYER will provide specifications and notify the SELLER as soon as possible
prior to the start of the delivery. SELLER shall provide pricing proposal, with
direct expenses and DDA fees, in sufficient time to be accepted by the BUYER.
This directory title shall be added to and made a part of this Agreement.
SECURITY REVIEW - SELLER shall permit BUYER to review SELLER's methods and
procedures for keeping confidential all information furnished by BUYER including
but not limited to Master Information and other material containing information
falling within the section, USE OF INFORMATION. SELLER shall comply with all
BUYER's requirements for security resulting from such review.
SELLER'S ACCOUNTING RECORDS - SELLER and sub-contractor's books, payrolls,
material bills, rental bills, records of special equipment purchases and other
accounting records in support of charges to BUYER by SELLER insofar as they
relate to work performed under this Agreement shall be available at all
reasonable times for inspection or audit by BUYER's authorized representatives.
SELLER'S INFORMATION - No specifications, drawings, sketches, models, samples,
tools, computer programs, technical information or data, written, oral or
otherwise, furnished by SELLER to BUYER hereunder or in contemplation hereof
shall be considered by SELLER to be confidential or proprietary.
SELLER'S ORGANIZATION CHART - The SELLER shall furnish to the BUYER an
organization chart. This chart must show the SELLER's structure, its personnel
and provide telephone numbers of key personnel. This chart must be updated as
changes warrant.
SELLER'S STATUS - In rendering services pursuant to this Agreement, SELLER shall
be and is an independent contractor and not an agent, servant or employee of
BUYER.
SEVERABILITY - In the event that any one or more of the provisions contained
herein shall, for any reason, be held to be unenforceable in any respect, such
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall then be construed as if such unenforceable provision or
provisions never had been contained herein.
SUBCONTRACTING - SELLER shall not, without BUYER's prior written approval,
subcontract any portion of the work to be performed hereunder.
SURVIVAL - All obligations hereunder on SELLER's part incurred prior to the
cancellation, termination, or expiration of this Agreement or of any order
placed hereunder by BUYER shall survive such cancellation, termination, or
expiration.
TAXES - BUYER shall be liable for and shall reimburse SELLER only for the
following tax payments with respect to the transaction under this Agreement:
Federal Manufacturers' and Retailers' Excise taxes, State and Local Sales taxes
and Use taxes, as applicable. Taxes payable by BUYER shall be billed as separate
items on SELLER's invoices.
TERMINATION - BUYER may for its convenience and for without cause, at any time,
terminate all or part of this Agreement for materials and/or services by written
notice to SELLER. Upon termination BUYER shall pay SELLER:
1. All amounts due for services provided by SELLER to BUYER at the rates
specified under this Agreement (see attached "Pricing Schedule") up to and
including the effective date of termination.
16
2. The purchase price of all supplies ordered by SELLER for BUYER under this
Agreement (not subject to cancellation without penalty or otherwise usable by
SELLER's operations) less any salvage value of such material
Such payment will constitute a full and complete discharge of BUYER's obligation
under this Agreement. Upon termination of this Agreement, the BUYER shall not be
liable to SELLER, either for compensation or for damages of any kind of
character whatsoever, whether on account of the loss by SELLER of present or
prospective profits, or expenditures, investments or commitments made in
connection therewith or in connection with the establishment, development or
maintenance of SELLER's business, or an account of any other clause or thing
whatsoever, provided that termination shall not prejudice or otherwise affect
the rights or liabilities of the parties with respect to services theretofore
provided under this Agreement.
The SELLER shall complete expeditiously any delivery in process, as defined in
the section, WORK IN PROGRESS, at the effective date of termination.
Upon termination of expiration of this Agreement, all routing plans, delivery
personnel lists, maps, miscellaneous aids, delivery records, etc. which are used
by SELLER for performing this Agreement, if not already owned by BUYER, become
the BUYER's property at no cost to BUYER. SELLER shall deliver such items, in
accordance with the BUYER's instructions.
USE OF INFORMATION - All information in written, printed, graphic or other form
furnished to SELLER under this Agreement or in contemplation of this Agreement
remains BUYER's property, shall be kept confidential by SELLER and shall be
returned to BUYER at its request. SELLER agrees that such information shall be
used solely for the performance of the services and that SELLER shall not use or
permit others to use such information or any part thereof, printed or otherwise,
for any other purpose unless so directed in writing by BUYER. SELLER shall keep
confidential and safeguard all material or portions thereof covered by this
Agreement now or hereafter in SELLER's possession and prevent their use by any
other person or persons. SELLER shall promptly destroy all extra proofs and
copies of any of the material or portion thereof. SELLER hereby agrees to save
us harmless from loss or liability resulting, or that hereafter may be claimed
to have resulted, from any failure by SELLER, SELLER's employees, SELLER's
agents, SELLER's representatives or SELLER's subcontractors to comply with the
terms of this section.
WARRANTY - SELLER expressly warrants to BUYER and its customers that all
material furnished under this Agreement will be new, will be free from defects
in design, material, and workmanship, will conform to and perform in accordance
with specifications, drawings, and samples and will be free from all liens and
encumbrances. SELLER warrants that its employees and agents will be duly
qualified and skilled in the areas in which their services are to be utilized.
SELLER also warrants that the BUYER's customers shall be satisfied with the
services provided by the SELLER. All warranties shall survive inspection,
acceptance and payment. Material or services not conforming to these warranties
will promptly be repaired, re-performed, adjusted, or replaced by SELLER at no
cost to BUYER or its customers.
WORK INSPECTIONS - BUYER shall have the right to make such inspections of SELLER
sub-contractor records, as it may deem necessary in order to determine that the
work of SELLER is being done properly and in accordance with BUYER's
instructions. Such inspections do not relieve SELLER from responsibility for
performance under this Agreement.
WORK IN PROCESS - If any work is in process at the expiration or termination of
this Agreement, this Agreement shall automatically extend to cover its
completion. Work in process is defined as work necessary to complete an initial
distribution, as defined in the section, "INITIAL DISTRIBUTION", which has
already begun as of the expiration or termination date of this Agreement.
EXECUTION - Authorized representative of the BUYER and SELLER hereby execute
this Agreement including any attachments and/or appendices attached hereto and
made a part hereof.
GOVERNING LAW - This Agreement shall be deemed to have been entered into in
Cincinnati, Ohio, and all questions concerning the validity, interpretation, or
performance of any of its terms or provisions, or of
17
any rights or obligations of the parties hereto, shall be governed by the laws
of the State of Ohio. Any dispute shall be litigated in the Common Pleas Court
of Xxxxxxxx County, Ohio or the United States District Court sitting in
Cincinnati, Ohio.
ACCEPTANCE - This Agreement will become effective only upon acceptance by BUYER,
evidenced by its execution of this Agreement by an authorized officer. This
Agreement supersedes any prior proposal or agreement between the SELLER and
BUYER and constitutes the entire agreement between the parties. There are no
representations with respect to the subject matter hereof except as specifically
set forth herein. This agreement may not be modified or supplemented except by a
writing signed by the parties.
Date Accepted: March 3, 2003 Date Accepted: March 13, 2003
------------------------ --------------------
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxx
------------------------------------ --------------------------------
Title: President and CEO Title: President and Chairman
-------------------------------- ----------------------------
18
