Exhibit 10.2
CHEMICALS, EQUIPMENT, AND
TECHNICAL ENGINEERING SERVICES
SUPPLY AGREEMENT
This Chemicals, Equipment and Technical Engineering Services Supply
Agreement (this "Agreement") is entered into by and between, ADA-ES Inc., a
Colorado corporation having its principal place of business at 0000 Xxxxx Xxxx
Xxx, Xxxx X, Xxxxxxxxx, XX 00000-0000 ("ADA") and ADA-NexCoal, LLC, a Colorado
limited liability company having its principal place of business at 0000
XxxxxXxxx Xxx, Xxxx X, Xxxxxxxxx, XX 00000 ("NexCoal") to be effective as of
November 3, 2006 (the "Effective Date") as follows:
RECITALS
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WHEREAS, ADA and NexCoal have entered into a license agreement dated
effective as of November 3, 2006 (the "License Agreement"),
WHEREAS, in order to realize the purposes of the License Agreement, NexCoal
will require Chemicals and Additives, Equipment and Technical Engineering
Services (as hereafter defined), and seeks to purchase such items from ADA for
the purpose of developing, marketing and deploying the Technology (as such term
is defined in the License Agreement), and (ii) organizing, owning, operating,
managing, selling, and otherwise dealing, either directly or through one or more
Subsidiaries (as such term is defined in the Operating Agreement) of the
Company, in one or more businesses based on the Technology; and
WHEREAS, ADA has agreed to supply to NexCoal, and NexCoal is willing to
purchase from ADA, Chemicals and Additives, Equipment and Technical Engineering
Services in accordance with the terms set forth in this Agreement;;
NOW, THEREFORE, in consideration of the mutual promises and premises
contained herein, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth below:
1.1 "Chemicals and Additives" means the chemicals listed on Schedule A
hereto to be supplied by ADA to NexCoal in accordance with the terms and
conditions of this Agreement.
1.2 "Customer Contract" means a contract between NexCoal and an
unaffiliated party pursuant to which ADA is to hereunder provide NexCoal with
Chemicals and Additives, Equipment and/or Technical Engineering Services for the
benefit of either NexCoal or such unaffiliated party.
1.3 "Equipment" means the equipment described on an Order Document to be
supplied by ADA in accordance with Schedule A hereto.
1.4 "Force Majeure" means an act of God, war, terrorism, hostilities, riot,
fire, explosion, accident, flood or sabotage; lack of adequate fuel, power, raw
materials, containers or transportation for reasons beyond such party's
reasonable control; labor trouble, strike, lockout or injunction (provided that
neither party shall be required to settle a labor dispute against its own best
judgment); compliance with governmental laws, regulations, or orders requiring
unreasonable effort or expense; breakage or failure of machinery or apparatus;
or any other cause whether or not of the class or kind enumerated above,
including, but not limited to, a severe economic decline or recession, which
prevents or materially delays the performance of this Agreement in any material
respect arising from or attributable to acts, events, non-happenings, omissions,
or accidents beyond the reasonable control of the party affected, provided,
however, that Force Majeure shall not relieve any party of the obligation to
make any payments required hereunder unless such event affects normal banking
transactions.
1.5 "License Agreement" means the License Agreement entered into between
ADA and NexCoal effective as of November 3, 2006.
1.6 "Loss" or "Losses" has the meaning set forth in Section 7.1 hereof.
1.7 "Operating Agreement" means the Amended and Restated Operating
Agreement of NexCoal, dated as of the date hereof.
1.8 "Order Document" has the meaning set forth in Section 3.3 hereof.
1.9 "Prudent Industry Practice" means those practices, methods, equipment
specifications and standards of safety and performance as the same may change
from time to time, as are commonly used by firms providing services similar to
the Technical Engineering Services and which are considered good, safe and
prudent with commensurate standards of safety, performance, dependability,
efficiency and economy. Prudent Industry Practice is not intended to be limited
to the optimum practice or method to the exclusion of all others, but rather to
be a spectrum of reasonable and prudent practices and methods.
1.10 "Scope of Work" means the description of the work that ADA shall
perform under this Agreement, as set forth on Schedule B hereto.
1.11 "Tax" has the meaning set forth in Section 4.3 hereof.
1.12 "Technical Engineering Services" means the technical engineering
services to be provided by ADA to NexCoal and NexCoal's customers hereunder, as
described in Schedule B hereto.
ARTICLE II
SCOPE OF AGREEMENT
2.1 Scope of Agreement. Pursuant to the Scope of Work and subject to the
terms and conditions of this Agreement, ADA agrees to supply to NexCoal and
NexCoal agrees to purchase from ADA, the Chemicals and Additives, Equipment and
Technical Engineering Services. In order to insure the confidentiality and
quality of the Technology, NexCoal agrees to buy Chemicals and Additives
exclusively from ADA, and where practical, obtain Technical Engineering Services
from ADA. In addition, ADA shall consider in good faith any request to supply
any other Chemicals and Additives, Equipment and/or Technical Engineering
Services in accordance with the terms and conditions of this Agreement, and at
prices to be mutually agreed upon at such time.
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2.2 ADA's Subcontractors. ADA may subcontract the provision of Technical
Engineering Services as it deems appropriate, provided that (i) subcontractors
have a demonstrated track record of (i) performing high quality work, (ii)
reliability and (iii) experience in performing the relevant tasks for which such
subcontractors are contracted.
2.3 Specifications. The Chemicals and Additives, Equipment and Technical
Engineering Services supplied or furnished by ADA under this Agreement shall be
of high quality, shall conform to the specifications called for in Schedules A
and B, and shall comply with all applicable laws and Prudent Industry Practice.
2.4 Permits, License and Registrations. Unless the parties otherwise agree,
ADA shall obtain and maintain at ADA's sole cost and expense all permits,
licenses, and registrations required by law for the sale of the Chemicals and
Additives.
ARTICLE III
ORDER & DELIVERY
3.1 Order Procedures. Schedule C sets forth the procedure agreed to by the
parties for the purchases to be made under this Agreement.
3.2 Other Order Documents. In the event of any inconsistency between the
terms and conditions contained in this Agreement and the terms and conditions of
any Order Document or other written agreement executed by the parties, the terms
of this Agreement shall prevail unless such Order Document or other written
agreement expressly modifies such terms.
3.3 Acceptance of Orders. Except as otherwise provided for herein, only an
Order Document duly executed by NexCoal and accepted by ADA as provided in this
Article III shall constitute a firm commitment to purchase on the part of
NexCoal and a firm commitment to supply or provide the subject Chemicals and
Additives, Equipment and/or Technical Engineering Services on the part of ADA.
As used in this Agreement, an "Order Document" shall mean a document consisting
of a purchase order (or similar document) in form acceptable to ADA, which has
been completed to specify with particularity at least the following (i) the
Chemicals and Additives, Equipment and/or Technical Engineering Services
requested, (ii) the quantities required, (iii) the time and place for delivery,
(iv) the prices to be paid therefor; and (v) any insurance and/or delivery
arrangements requested to be provided by ADA.
3.4 Delivery. All Chemicals and Additives and Equipment will be shipped FOB
ADA or its designee. The term FOB shall have the meaning provided in Incoterms
2000, the ICC's international rules for interpretation of trade rules. NexCoal
shall be responsible for all shipping charges, including freight and insurance.
Under no circumstances shall the carrier be deemed an agent, employee, or
representative of ADA.
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3.5 Inspection and Acceptance. NexCoal shall inspect all orders immediately
upon receipt and shall notify ADA within ten (10) business days after receiving
an order if there is a discrepancy between the Order Documents and the shipment.
Failure to notify ADA within this period shall be deemed acceptance of the
order.
3.6 Force Majeure. If either party is prevented or delayed in the
performance of any of its obligations hereunder by Force Majeure and such party
gives written notice thereof to the other party within twenty (20) days of the
first day of such event specifying the matters constituting Force Majeure,
together with such evidence as it reasonably can give, then ADA will be excused
from the performance or punctual performance, as the case may be, as from the
date of such notice for so long as such Force Majeure continues.
ARTICLE IV
PRICES AND PAYMENT TERMS
4.1 Prices. The price to NexCoal for the Chemicals and Additives, Equipment
and Technical Engineering Services shall be as set forth on Schedules A and B,
respectively. The prices charged by ADA to NexCoal shall be no less favorable to
NexCoal than the prices charged by ADA to customers who, during the term of this
Agreement as set forth in Article 8, purchase similar volumes of substantially
similar Chemicals and Additives, Equipment and Technical Engineering Services.
ADA may change the prices of any Chemicals and Additives, Equipment and
Technical Engineering Services supplied hereunder upon thirty (30) days advance
notice to NexCoal.
4.2 Payment Terms. Payment hereunder shall be made by NexCoal either by
check payable to ADA or wire transfer to the ADA bank account specified by ADA,
and shall be due thirty (30) days after the date of ADA's invoice. In the event
that NexCoal does not pay an invoice in full when due, NexCoal shall pay
interest on the outstanding balance at a rate of 12% per annum from the date on
which the invoice was due, until the date on which payment is received by ADA.
4.3 Taxes and Other Charges. NexCoal shall bear all taxes, duties, levies
and similar charges (and any related interest and penalties) (each, a "Tax"),
however designated, imposed upon or arising from the provision of Chemicals and
Additives, Equipment and/or Technical Engineering Services (as the case may be)
by ADA pursuant to this Agreement, except Tax imposed upon ADA's net income.
ARTICLE V
COVENANTS
5.1 Insurance. ADA shall at all times maintain insurance, standard in the
industry, against the risk of loss or damages arising as a result of the
activities to be performed by ADA on behalf of NexCoal hereunder, including risk
of loss or damages as a result of the transportation, use or storage of the
Chemicals and Additives, and shall, to the extent possible, include NexCoal as
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an additional insured on such insurance policies. ADA shall be entitled to
reimbursement from NexCoal for all out-of-pocket cost of any insurance
specifically required to be purchased by it (in addition to its standard
coverages) under any Customer Contract. Any such additional endorsement shall be
indicated on the certificate(s) of insurance and a copy of such certificate(s)
shall be provided to NexCoal, or written notice shall be given by ADA to NexCoal
that it has been unable to add it as an additional insured, in order to allow
NexCoal to obtain appropriate coverage in its own name.
5.2 Promoting Safe Use Practices. ADA shall use commercially reasonable
methods to inform and familiarize its employees, NexGen, customers, contractors
(including transporters) and others who may handle or use the Chemicals and
Additives of any potential hazards pertaining thereto. The foregoing shall not
limit, or be construed to limit, the obligations of ADA under Section 4.5
hereof.
5.3 No Unauthorized Representation. Notwithstanding anything to the
contrary contained herein, neither NexCoal nor any manager, officer, member or
agent of NexCoal shall hold itself out as authorized to make on behalf of ADA or
otherwise, any oral or written warranty or representation regarding the
Technology, Chemicals and Additives, Equipment, or Technical Engineering
Services other than what is stated in written material furnished to NexCoal by
ADA.
ARTICLE VI
WARRANTIES
6.1 Each Party warrants that it has the right and authority to enter into
this Agreement and perform its obligations hereunder.
6.2 ADA warrants that the Chemicals and Additives comply with all
applicable laws, as well as all applicable governmental registrations,
registration applications, temporary registrations, experimental use permits,
and emergency use exemptions.
6.3 ADA warrants that the Technical Engineering Services will be performed
in a good and workmanlike manner by qualified individuals with suitable skill,
training, education and experience. This warranty shall be valid for thirty (30)
days from performance of the service. NexCoal's exclusive remedy for breach of
this warranty, and ADA's sole liability, shall be the reperformance of the
Technical Engineering Services.
6.4 ADA shall pass on any manufacturer's warranty on any Equipment to the
maximum extent that it is able to do so. OTHERWISE, EQUIPMENT IS SOLD WITHOUT
ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING .ANY WARRANTY OF MERCHANTABILITY OR
SUITABILITY FOR A PARTICULAR PURPOSE.
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ARTICLE VII
INDEMNIFICATION
Subject to the limitations set forth in Article VIII or in any other
provisions of this Agreement, each party shall defend, indemnify and hold
harmless the other party and its affiliates, customers, licensees, distributors,
directors, officers, employees and agents from and against any losses, damages,
liabilities, expenses, costs, claims, suits, demands, actions, causes of action,
proceedings, judgments, assessments, deficiencies and charges (including,
without limitation, reasonable attorney's fees and expenses (singly a "Loss" and
collectively, "Losses"), including third party claims, arising out of, on
account of or resulting from (a) the operation or conduct of such party's
business, (b) the willful misconduct or gross negligence of such party or its
directors, officers, employees or agents (other than the other party), and (c)
the breach of any representation, warranty or covenant of such party in this
Agreement.
In addition to the indemnity provided elsewhere herein, or in the Operating
Agreement, ADA shall be solely responsible for, and shall indemnify, defend and
hold harmless NexCoal and any of its Affiliates (as such term is defined in the
Operating Agreement) from and against, any and all Loss based upon, arising out
of or in any manner related to (i) the manufacture, storage, use, handling, sale
or otherwise of the Chemicals and Additives or the Equipment, and (ii) the acts
or omissions of any of ADA's employees, agents or contractors performing or
involved with Technical Engineering Services.
ARTICLE VIII
LIMITATION OF LIABILITY
IN NO EVENT SHALL ADA BE LIABLE TO NEXCOAL OR ANY THIRD PARTY FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF
LIABILITY, WHETHER OR NOT ADA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, ARISING IN ANY WAY OUT OF THIS AGREEMENT. IN NO EVENT SHALL THE
CUMULATIVE LIABILITY OF ADA EXCEED THE TOTAL AMOUNT ADA RECEIVED HEREUNDER.
The limitations of this Article VIII will apply even if ADA has been advised of
such possible damages. Some jurisdictions, states, or provinces do not allow the
exclusion or limitation of incidental or consequential damages, so the
limitation or exclusion included in this Agreement may not apply. All other
limitations under applicable law, including any statutes of limitations, shall
continue to apply. NexCoal acknowledges that ADA's pricing reflects this
allocation of risk, and the limitation of liability specified in this section
will apply regardless of whether any limited or exclusive remedy specified in
this Agreement fails of its essential purpose.
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ARTICLE IX
TERM & TERMINATION
9.1 Term. This Agreement shall remain in full force and effect for the term
of the License Agreement, unless sooner terminated for cause by either party
pursuant to Sections 9.2 or 9.3.
9.2 Automatic Termination. This Agreement shall terminate immediately and
automatically without any notice or further action by either party in the event
of (1) the appointment of a trustee or receiver for or on behalf of either
party, its assets, property or operations (2) assignment of assets for the
benefit of the creditors of either party, (3) an adjudication of either party as
bankrupt or insolvent, or (4) the dissolution or liquidation of either party.
9.3 Other Termination. Either party may terminate this Agreement if the
other party shall commit any material default of any covenant or agreement
contained herein, and shall fail to remedy any such default or breach within
thirty (30) days after written notice by the non-defaulting or non-breaching
party.
ARTICLE X
GENERAL
10.1 Notices. All notices provided for in this Agreements shall be
effective when received either by (i) personal delivery or (ii) three days after
deposit, postage prepaid, in the United States Mail, sent registered or
certified, addressed to the parties respectively at the following addresses:
If to ADA: ADA-ES, Inc.
Attn: Dr. Xxxxxxx Xxxxxx
0000 Xxxxx Xxxx Xxx, Xxxx X
Xxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Email address: xxxxx@xxxxx.xxx
If to NexCoal: ADA-NexCoal, LLC
Attn: Xx. Xxxxxxx XxXxxx
0000 Xxxxx Xxxxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
Fax: (000) 000-0000
Email address: xxxxxxx@xxxxxx-xxxxx.xxx
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With a copy to:
Republic Financial Corporation
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Senior Vice President
Fax: (000) 000-0000
Email address: xxxxxxxx@xxxxxxxx-xxxxxxxxx.xxx
and
Attn: Dr. Xxxxxxx Xxxxxx
0000 Xxxxx Xxxx Xxx, Xxxx X
Xxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Email address: xxxxx@xxxxx.xxx
10.2 Governing Law. This Agreement will be governed by the laws of the
State of Colorado, without regard to the conflicts of law provisions thereof,
and the District Courts located in Arapahoe County, Colorado shall have
exclusive jurisdiction and venue over all suits and proceedings brought to
enforce or interpret this Agreement, and the parties hereby submit to the
jurisdiction and venue of said court.
10.3 Integration. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersede all prior
representations, assurances, courses of dealing, agreements, and undertakings,
whether written or oral, between the parties concerning such subject matter.
This Agreement will mutually benefit and be binding upon the parties, their
successors and assigns.
10.4 Amendment. This Agreement may not be amended or modified except by
written agreement signed by authorized representatives of the parties.
10.5 Independent Contractors. The parties hereto are independent
contractors, and nothing herein will be construed to create a partnership, joint
venture, employment, or agency relationship between the parties. Neither party
will have any authority to enter into agreements or make any statements,
representations or commitments or take any action of any kind on behalf of the
other, and neither party will have any other power or authority to bind or
obligate the other in any manner to any third party.
10.6 Assignment. Neither party may assign any of their rights, duties or
obligations under this Agreement without the prior written consent of the other
party hereto, which consent shall not be unreasonably withheld; provided,
however, that such consent may be withheld if the non-assigning party (in its
sole discretion) has a reasonable basis to doubt the ability of a proposed
assignee to perform the obligations of the assignor under this Agreement.
10.7 No Third Party Beneficiaries. Nothing in this Agreement is intended
to, or shall, create any third party beneficiaries, whether intended or
incidental, and no party shall make any representations to the contrary.
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10.8 Severability. If any provision of this Agreement is construed to be
invalid or unenforceable, such provision will be deemed to be limited or
modified to the minimum extent necessary so that this Agreement shall remain in
full force and effect and, as so limited or modified, remain enforceable.
10.9 Waiver. The provisions of this Agreement may be waived only with the
written consent of the party waiving any such provision. The failure of a party
to enforce its rights under this Agreement for any period will not be construed
as a waiver of such rights.
10.10 Headings. Headings contained in this Agreement are for ease of
reference only and have no legal effect.
10.11 Counterparts and Facsimiles. This Agreement may be executed on
facsimile copies in two or more counterparts, each of which will be deemed an
original and all of which together will constitute one and the same Agreement.
10.12 Survival of Provisions on Termination. The provisions of Articles VI,
VII, VIII and Section 10.2, and any other provision hereof which, by its terms,
should survive termination of this Agreement, shall survive the termination of
this Agreement for any reason. All other rights and obligations of the parties
shall cease upon termination of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of
the Effective Date.
ADA-ES, INC. ADA-NEXCOAL, LLC
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. XxXxxxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxx X. XxXxxxxxx
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Title: President Title: Manager
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Schedule A to
Chemicals, Equipment and
Technical Engineering Services Supply Agreement
Chemicals and Additives and Equipment Terms List
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o Mercury control halogen additive - ADA will purchase this chemical at
prevailing market rate (i.e., the best rate ADA can purchase it for
commercially) and will sell it to NexCoal at 50% margin (ADA's
standard margin). As an example, the current commercial market rate
(as of September 30, 2006) for this chemical is approximately
$2000/ton, so NexCoal's price would be $3000/ton, undelivered.
o Iron mineralizer additive - ADA's current published commercial rate
for this chemical is $55/ton, undelivered. ADA will sell this additive
to NexCoal at its current published commercial rate of $55/ton, plus
delivery cost.
o Other chemicals or additives that may be required for coal treatment
will be sold by ADA to NexCoal at ADA's cost, plus its standard
commercial xxxx-up of 50%. In no event will ADA charge NexCoal a
greater price than it charges unaffiliated third party purchasers.
o Equipment will be sold to NexCoal by ADA at ADA's cost, plus delivery,
without xxxx-up.
Price changes will be provided to NexCoal in writing by ADA from time to time,
based on raw material prices charged to ADA by its suppliers. However, in no
event shall ADA impose cumulative annual price increases in any calendar year
that exceed the increase in the Consumer Price Index for All Urban Consumers,
U.S. City Average for all items (CPI-U), published by the United States Bureau
of Labor Statistics of the Department of Labor for the prior calendar year. At
NexCoal's request, ADA will supply NexCoal with copies of any invoices or
similar or related documents evidencing the raw material prices charged to ADA
by its suppliers.
o All Chemicals and Additives and Equipment will be sold FOB ADA or its
designee. ADA will arrange for purchase and delivery to the location
specified in an Order Document.
o Delivery and risk of loss will pass to NexCoal at ADA facility
location (or that of its supplier). NexCoal will be responsible for
transportation and insurance costs, which will be reimbursed to ADA,
if not paid directly by NexCoal
o Delivery charges and insurance arranged for by ADA will be added to
each order at ADA's cost, with no xxxx-up.
Schedule B to
Chemicals, Equipment and
Technical Engineering Services Supply Agreement
Scope of Work and Prices for Technical Engineering Services
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Scope of Work:
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ADA will provide the Technical Engineering Services specified by NexCoal from
time to time on a properly tendered and accepted Order Document.
Prices for Technical Engineering Services:
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Technical Engineering Services will be charged to NexCoal at ADA's published
commercial rates, which as of September 30, 2006, are as follows:
ADA-ES Commercial Rates
(Effective as of November 3, 2006, subject to change on prior notice)
Category Rate ($/hour)
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Executive Management $250
Principal $170
Project Manager $145
Senior Engineer $135
Engineer $110
Technician $ 85
Administrative Support $ 70
Materials Fee: 10% xxxx-up on all direct materials aside from Chemicals and
Additives specified above, subcontracts, consultants, leases, and other direct
costs
Schedule C to
Chemicals, Equipment and
Technical Engineering Services Supply Agreement
Orders Procedure
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The following procedures will apply to the submission and acceptance of Order
Documents:
1. NexCoal must submit a written Purchase Order (or similar document), signed by
an authorized NexCoal representative, specifying in detail the Chemicals and
Additives, Equipment and Technical Engineering Services requested to be supplied
by ADA. Each Purchase Order must provide specific information which shall
include at least the following, plus such other information as ADA may
reasonably request to allow it to fulfill the order:
(i) the Chemicals and Additives, Equipment and/or Technical Engineering
Services requested,
(ii) the quantities required,
(iii) the time and place for delivery,
(iv) the prices to be paid therefor; and
(v) any insurance and/or delivery arrangements requested to be provided by
ADA.
2. Upon receipt of a Purchase Order, ADA shall review it and either (i) accept
it by signing it, returning a signed copy to NexCoal, or (ii) contact NexCoal
with suggested changes and/or issues to be resolved to satisfy ADA's concerns.
3. NexCoal and ADA shall discuss any required changes and resolve any issues
raised by ADA and/or NexCoal. NexCoal shall then resubmit the Purchase Order,
with revisions as necessary to address ADA's concerns. ADA shall then review it
and either (i) accept it by signing it, returning a signed copy to NexCoal, or
(ii) contact NexCoal with any further suggested changes and/or issues to be
resolved to satisfy ADA's concerns.
4. This process shall continue until ADA returns a signed Purchase Order to
NexCoal. Only upon ADA's written acceptance of a Purchase Order shall it become
a binding agreement upon ADA.
