Exhibit 10.33
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT ("Agreement"), dated as of the 27th day of
December 1999 (the "Effective Date"), is by and between NORTON COMPANY, a
Massachusetts corporation with a principal address of Xxx Xxx Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Seller"), and JORE CORPORATION, a Montana
corporation with a place of business at 00000 X.X. Xxxxxxx 00, X., Xxxxx, XX
00000 ("Buyer").
Background
Seller is engaged in the manufacture and sale of abrasives products.
In connection with the marketing and sale of its products, Seller developed and
subsequently registered the trademarks SPEED-LOK and SPEEDLOK (the "Xxxx") for
use with abrasives disks and backup pads. Buyer is engaged in the manufacture
and sale of various tools and tooling equipment and has employed the use of the
xxxx SPEED-LOK in connection with the sale of its quick-change drilling and
driving products to a private label customer and retailer. Seller regards
Buyer's use of the Xxxx as an infringement of Seller's trademark rights and has
requested Buyer either cease and desist any further use of the Xxxx or obtain a
license from Seller to permit Buyer's use of the Xxxx under certain terms and
conditions.
In order to settle Seller's infringement claim against Buyer, Seller
and Buyer have agreed to execute a Trademark License Agreement (the "License
Agreement") concurrently with the execution of this Agreement pursuant to which
Buyer shall have the right to use the Xxxx royalty-free in exchange for Buyer's
agreement to purchase the Products listed on EXHIBIT A attached hereto (the
"Products") on the terms and conditions stated herein..
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, Buyer and
Seller hereby agree as follows:
1. PURCHASE REQUIREMENTS. During the term of this Agreement, Buyer
agrees to purchase substantially all of its abrasives product requirements (both
for production and resale purposes) from Seller, or any affiliate of Seller to
the extent Seller is unable to meet Buyer's requirements for product, on the
terms and conditions stated herein. Buyer shall order Products from Seller by
issuing purchase orders hereunder from time to time specifying the quantities of
Products and delivery dates. Orders shall become binding upon the issuance of
order acknowledgments by Seller. The parties may use their respective standard
purchase order and acknowledgment forms to implement and document purchases
hereunder, but none of the terms or conditions printed in any such form, other
than those specifying the quantities for delivery and any agreed to delivery
dates, shall be applicable to any of the transactions contemplated by this
Agreement.
2. COMPETITIVE PRICING. In the event Buyer determines that a
competitive product or service exceeds the best value being offered by Seller,
Buyer will provide Seller with appropriate documentation to substantiate the
competitor's offer and afford Seller the right to: (a) demonstrate through
appropriate testing, documentation and pricing quotations that its products and
services are equal to or better in value than the equivalent product being
offered to Buyer by the competitor; and/or (b) develop products and/or services
that meet or exceed the value of the competitor's product or service. Any
products or services developed by Seller to meet or exceed an equivalent product
being offered by a competitor must be made available to Buyer within a
commercially reasonable time period so as to not detrimentally delay Buyer's
intended use of such products or services. At the request of Buyer and with its
full support and cooperation, Seller will provide application, engineering, R&D
and marketing assistance to assist Buyer in developing and improving its
abrasive applications. Seller will also provide product management support for
product line development of Buyer's resale products.
3. PRICING. Pricing for the Products will be determined by Seller and
Buyer from time to time. Any such pricing will be exclusive of any taxes
(including sales taxes, but excluding income taxes and other taxes levied solely
on Seller), duties or other assessments imposed or levied upon the Products
supplied hereunder by any federal, state, municipal or other governmental
authority in connection with the sales thereof to Buyer.
4. WARRANTY; LIMITATION OF LIABILITY
(a) Seller warrants the Products will be free from defects in material
and workmanship for a period of one year from the date of purchase by Buyer.
Seller's sole obligation under this warranty, and Buyer's exclusive remedy
under this warranty, is limited to the repair or replacement, at Seller's
option, of any Product determined by Seller to be defective under normal use
and service conditions. THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY OTHER
GUARANTIES AND/OR WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, INCLUDING
THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF
WHICH ARE EXPRESSLY DISCLAIMED.
(b) Seller shall not, in any event, be liable in contract, tort,
warranty, strict liability, or otherwise, for any special, indirect, incidental,
or consequential damages, such as, but not limited to, loss of anticipated
profits or revenue. Further, any liability of Seller arising in connection with
any Product shall not exceed the sales price of such Product received by Seller.
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5. TERM. This Agreement shall commence as of the Effective Date and,
unless terminated earlier in accordance with the provisions of Section 6 hereof,
shall remain in effect for a five (5) year period (the "Term").
6. TERMINATION. Prior to the expiration of the Term, this Agreement may
be terminated as follows:
(a) by either Seller or Buyer, immediately, if the other party
is declared insolvent or bankrupt or files a petition in bankruptcy or makes any
assignment or trust mortgage for the benefit of creditors, or if a receiver,
guardian, conservator, trustee in bankruptcy, or similar official shall be
appointed to take charge of all or any part of the other party's property by a
court of competent jurisdiction;
(b) by either Seller or Buyer, on 30 days written notice if
the other party is in default of any other material term or condition of this
Agreement and, upon receipt of such notice from the non-defaulting party, does
not cure such default within such 30-day period;
(c) by either Seller or Buyer, on ninety (90) days prior
written notice, without cause.
7. EFFECT OF TERMINATION. Upon termination of this Agreement for any
reason (including without limitation, its expiration according to the terms
hereof), neither party shall be liable to the other for compensation,
reimbursement or damages on account of the loss of prospective profits on
anticipated sales or on account of expenditures, investments, leases or
commitments made by such party in connection with this Agreement or otherwise in
connection with its business. The expiration or termination of this Agreement
shall not affect the parties' rights and obligations with respect to Product
delivered, or other actions taken, hereunder prior to termination, nor shall it,
in the case of a termination under Sections 6(b), be in lieu of or constitute a
waiver of any other rights or remedies, either at law or in equity, of the
non-defaulting party.
8. CONFIDENTIALITY. In the course of the performance of this Agreement,
a party (the "receiving party") may be given, or otherwise have access to,
certain trade secrets and other proprietary or confidential information
("Confidential Information") belonging to or in the possession of the other
party (the "disclosing party"). The receiving party shall not disclose any
Confidential Information of the disclosing party to any third party (other than
the receiving party's employees, affiliates, agents or representatives who have
a "need to know") without the disclosing party's prior written consent. The
business terms of this Agreement shall be deemed to be "Confidential
Information" belonging to both parties. "Confidential Information" shall not
include the following information:
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(i) information that is or becomes generally available to the public
other than as a result of a breach of this Agreement by the receiving party, or
its affiliates or representatives;
(ii) is known to the receiving party or any of its affiliates or
representatives at the time of disclosure and is not subject to a non-disclosure
agreement with the disclosing party of which the receiving party is aware;
(iii) was received by the receiving party or any of its affiliates or
representatives after the time of disclosure hereunder on a non-confidential
basis from a third party who the receiving party reasonably believed had a legal
right to make such disclosure;
(iv) is subsequently developed by the receiving party or any of its
affiliates without the use of such Confidential Information; or
(v) is required by law to be disclosed by the receiving party (in the
opinion of the receiving party's counsel).
The receiving party agrees to be liable for any breach of this confidentiality
obligation by its employees, affiliates, agents or representatives and agrees
further that the disclosing party shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in addition to all other
remedies available to it, in the event of any breach of this provision. The
rights and obligations of the parties under this Section shall survive any
expiration or termination of this Agreement for a period of three years.
9. MISCELLANEOUS.
(a) NO AGENCY OR PARTNERSHIP. Nothing in this Agreement shall be deemed
to establish a partnership or joint venture between the parties. In addition,
nothing in, and neither party shall have the power to bind, or incur any
obligations, contractual or otherwise, or make any representations or
warranties, for or in the name of, the other party.
(b) NOTICES. All notices or communications required or permitted under
this Agreement shall be in writing and shall be hand delivered or sent by
registered or certified mail, postage prepaid, or by fax or recognized overnight
carrier, to the intended recipient at the address and attention designated on
the signature page hereof or to such other address or attention as the recipient
may have designated in a writing given pursuant to this Section. Any such notice
or communication shall be deemed delivered as follows: if hand delivered, on the
day so delivered; if mailed, three business days after the date so mailed; if by
fax, upon telephone confirmation of receipt; and if sent by recognized overnight
carrier, the next business day.
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(c) BINDING EFFECT; ASSIGNMENT. This Agreement shall inure to the
benefit of, and be binding upon and enforceable by, the parties hereto and their
respective successors and permitted assigns. This Agreement shall not be
assignable by either party without the prior written consent of the other party.
Except as expressly permitted herein, any purported assignment made without such
consent shall be null and void.
(d) ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the entire
agreement between the parties and supersedes all prior agreements,
understandings and representations, whether written or oral, regarding the
subject matter hereof. This Agreement may not be amended, modified or rescinded
in any respect except by the prior written agreement of both parties. The terms
of this Agreement shall supersede the terms of any purchase order,
acknowledgment, invoice or other document used by Buyer or Seller in the
purchase or sale of the Products hereunder.
(e) GOVERNING LAW. THIS AGREEMENT, AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT GIVING
EFFECT TO ITS PRINCIPLES OF CONFLICT OF LAWS.
IN WITNESS WHEREOF, Buyer and Seller have caused this Agreement to be
duly executed as of the date first above written.
NORTON COMPANY JORE CORPORATION
By:_______________________________ By:________________________________
Title:____________________________ Title:_____________________________
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EXHIBIT A
PRODUCTS
BONDED ABRASIVE PRODUCTS
COATED ABRASIVE PRODUCTS
NON-WOVEN ABRASIVE PRODUCTS
SUPER ABRASIVE PRODUCTS
WINTER SUPER ABRASIVE PRODUCTS
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