EXHIBIT 10.32
[LOGO] Intertek Testing Services
Intertek Testing Services NA Inc.
0000 XX Xxxxx 00
Xxxxxxxx, XX 00000
Telephone (000) 000-0000
Fax (000) 000-0000
xxxx://xxx.xxxxx.xxx
LISTING, LABELING, AND FOLLOW-UP SERVICE AGREEMENT
THIS AGREEMENT is made at Cortland, New York, this 6th day of June 1997, by
and between ETL TESTING LABORATORIES, INC., (hereinafter sometimes referred to
as ETL) and
XXXXXX INDUSTRIES INC.
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(Company Name)
0000 XX 000xx Xxxxxxx Xxxxx, Xxxxxxx 00000
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(Company Address)
(hereinafter sometimes referred to as the "Participant" or "Manufacturer").
The term "Participant" is used to denote a Company that has entered into a
relationship with ETL as an "Applicant" (the submitter of a Product to be
evaluated under this service), a "Manufacturer" (the manufacturer or assembler
of the Product to be evaluated under this service), or the "Company" (the
company in whose name the listing is published). The Company herein referred to
as the Participant may be an "Applicant," a "Manufacturer," or a "Company,"
either one, two, or all three. The Participant's relationship with ETL for any
particular Product is as established by the Application under which the Product
was submitted and any subsequent Applications. Where obligations pertain to a
Participant without regard to his specific relationship to ETL, the term
"Participant" is used. Where the obligation results from a specific
relationship, the term "Applicant", "Manufacturer", or "Company" is used as
appropriate.
ETL provides a service for the testing of Products to recognized national
standards for designated specifications and/or codes and evaluation to determine
the suitability of the Product for the use intended under its listing. Products
listed shall bear specific distinctive markings assigned by ETL to identify the
Product and the limitation, if any, of ETL's Listing. Such markings are
hereinafter referred to as "Listing Markings."
Certain devices, equipment, materials, or systems (herein referred to as
the "Products") manufactured by or for the Participant have been or will be
submitted to ETL for investigation, Listing, Labeling, and Follow-Up Service.
If submitted Products are found to be eligible for Listing, Labeling, and
Follow-Up Service, Listing is published and Follow-Up Service is established.
The establishment and maintenance of Listing, Labeling, and Follow-Up Service
are contingent upon the execution of this Agreement and upon continued adherence
to the terms and conditions of this Agreement by all Participants who are named
in the Application under which the Product is submitted.
The Participant desires to use the ETL Listing Xxxx in connection with such
listed Products, and ETL is willing to permit such use subject to all the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
undertakings and promises set forth in this Agreement, it is agreed that
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1. Upon a determination by ETL that the Products are eligible for Listing,
Labeling, and Follow-Up Service, ETL prepares and lends to the Participant while
the listing is in effect, a document caused the "Procedure" which may be
subsequently modified or supplemented by ETL. The Procedure identifies and
describes the listed Products which may use the ETL Listing Xxxx, specifies
certain Requirements for the listed Products, specifies the particular type and
form of ETL Listing Xxxx which must be used on or in connection with the listed
Products in accordance with the Procedure, specifies the name of the participant
who may apply the ETL Listing Xxxx and the location at which the Label may be
applied to or may be used in connection with the listed Products and may contain
other provisions and conditions regarding the listed Products, the use of the
ETL Listing Xxxx, and the conduct of the Follow-Up Service.
2. The Participant shall use only the Label prescribed by ETL and specified
in the Procedure. Except where otherwise specifically authorized, the ETL
Listing Xxxx shall be applied to or shall be used in connection with the listed
Product only by the Participant named in the Procedure and only at the location
specified in the Procedure or such other location as requested in writing by
Participant and authorized in writing by ETL. The Participant shall not use such
ETL Listing Xxxx, nor in any other way make use of ETL's name, abbreviations, or
symbols or any other form of reference which may be interpreted to mean the ETL
Testing Laboratories, Inc., on or in connection with the Products not listed and
authorized by the Procedure, or Products not made in compliance with the
Procedure and other Requirements of ETL. The term "Requirements" as used herein
shall include (a) the description, specifications, and Requirements contained in
the Procedure, (b) the published Standard or Standards, if any, applicable from
time to time to the listed Products and, (c) any performance Requirements
separately applied as a condition of listing of the Product.
3. The Listing Marks of the ETL Testing Laboratories, Inc., ETL's name or
abbreviation, or any other form of reference which may be interpreted to mean
ETL Testing Laboratories, Inc., shall not be used on the Product or its
container or packaging, except in the form or manner specified in the procedure
or in other applicable agreements.
4. ETL will permit references to ETL Testing Laboratories, Inc. in
promotional or advertising material solely in connection with listed Products
which bear the ETL Listing Xxxx, provided that in the opinion of ETL the
promotional or advertising material is not in conflict with the findings and
listing of ETL and that the reference to ETL Testing Laboratories, Inc. in no
way tends to create a misleading impression as to the nature of ETL's findings,
listing, labeling, and follow-up service and does not make use of any registered
label of ETL. Except for the Registered ETL Trademark, no reference to ETL shall
be used in advertising and promotional material supplied with the Product, and
when such symbol is used, its text and appearance shall be as prescribed by a
separate agreement.
5. The ETL Listing Xxxx shall be obtained only when and in the manner
authorized by ETL and subject to control of ETL. Unless otherwise specifically
authorized by ETL, the ETL Listing Xxxx for use on or in connection with the
Product shall be separable in form, such as labels, or may be applied directly
to nameplates or other media as authorized by ETL.
6. Orders for separable ETL Listing Marks shall be processed through ETL
and shall not be filled without authorization by ETL. Separable ETL Listing
Marks shall be obtained only as specified by ETL. When the ETL Listing Xxxx is
applied directly to the Product by the manufacturer a facsimile of this Listing
Xxxx as it will be used on the Product shall be submitted to ETL for approval.
An initial inspection of the manufacturing facility is required prior to ETL
authorizing the use of the Listing Xxxx on Products covered by this Agreement.
7. Notwithstanding the manufacturing cost of labels or other means of
applying the ETL Listing Xxxx to the Product is not paid by ETL, it is agreed
that title to and the right of control of labels, markers or other means of
marking shall be vested in ETL until such time as the ETL labels or markers are
properly applied to the listed Product in accordance with this Agreement. ETL's
representatives shall have the right, on demand, to acquire possession of any
and all unused labels, markers, or other means for applying the ETL Listing Xxxx
when in the judgement of ETL's representative such action is warranted.
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8. The Participant agrees that ETL in performing its functions in
accordance with its objects and purposes does not assume or undertake to
discharge any responsibility to any other party or parties. The Participant
recognizes that the opinions and findings of ETL represent its judgement given
with due consideration to the necessary limitations of practical operation and
in accordance with its objects and purposes and agrees that ETL does not warrant
or guarantee the correctness of its opinions or that its findings will be
recognized or accepted by a third party.
9. The Participant recognizes that many tests specified in the Requirements
of ETL are inherently hazardous and agrees that ETL neither assumes nor accepts
any responsibility for any injury or damage to the Participant's property or
personnel that may occur during or as a result of tests, whenever performed,
whether performed in whole or in part by the participant or ETL, and whether
or not any equipment, facility, or personnel for or in connection with the test
is furnished by the participant or ETL, except when such injury or damage
results solely from an intentional act or gross negligence on the part of ETL's
personnel.
10. The Participant assumes full and complete responsibility for its use of
the ETL Listing Xxxx and agrees that it will, through proper inspection or
otherwise, determine that the Products bearing the ETL Listing xxxx have been
made in compliance with the Requirements of ETL. The Participant agrees that its
use of the ETL Listing Xxxx constitutes its declaration that the Products are
listed by ETL and have been made in compliance with the Requirements of ETL.
11. The Participant acknowledges that the manufacture, sale, delivery,
shipment, distribution, or promotion of any Product utilizing a marking or
description referring to ETL would mislead the public if such a Product is not
eligible to use the marking or description or does not comply with the
Requirements of ETL or if the ETL Listing Xxxx is used in any other way than as
herein provided, and the breach of this contract in this respect could not
adequately be compensated for in money damages. For these and other reasons, the
Participant agrees that in the event of the breach of any of the terms and
conditions of the Agreement, a temporary injunction may be issued at the
insistence of ETL restraining the Participant from further use of the ETL Label
or any other reference to ETL in any manner whatsoever, and from any further
sale or offering for sale, delivery, or distribution of said Products bearing
the ETL Listing Xxxx or any other reference to ETL and any other relief which
may be deemed appropriate. Such temporary injunction shall not, however,
restrain the sale and delivery of Products already bearing the ETL Listing Xxxx
which have been previously found to be listed and to be in compliance with the
Requirements of ETL at the time the ETL Listing Xxxx was applied to the Product.
The granting or issuance of such temporary sanctions shall not affect the right
of ETL to compensatory and punitive damages for the misuse of its ETL Listing
Xxxx or its name, abbreviations, or symbol and shall be in addition to, and not
in lieu of, any other s rights and remedies provided by this Agreement. The
Participant agrees to hold ETL harmless and to defend and identify ETL against
any loss, expense, liability, or damage, including reasonable attorney's fees,
arising out of any misuse by the Participant of the ETL Listing Xxxx or arising
out of any material breach by the Pas participant of the terms and conditions of
this Agreement.
12. The Participant shall establish and maintain a program of production,
inspection, and tests so as to assure compliance of the Used Product with ETL
Requirements.
13. The Participant agrees that the Follow-Up Service of ETL, and any
sampling, inspections, or tests conducted by ETL in connection therewith, is
designed to serve only as a check on the means which the Manufacturer exercises
to determine compliance of the Products with the Requirements and that the
Participant is in no way relieved of his responsibility for the Products.
14. During the continuance of the listing, representatives of ETL will make
periodic examinations or tests of the Products at the factory or warehouse and
may, from time to time, select samples from the factory to be sent to an ETL
testing station, for examination or test to determine compliance with ETL's
Requirements.
15. ETL reserves the right, upon reasonable notice to the Participant, to
re-evaluate ETL listed and labeled Product. This re-evaluation may be the result
of field programs, a revision of the applicable safety standard, new information
regarding the safety characteristics of materials used or other information that
raises a question concerning the safety of the Product. The notice of
re-evaluation shall contain an estimate of the fees involved.
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If preliminary studies indicate that the Product may be unsafe, ETL
reserves the right to temporarily suspend the Product listing as well as the
manufacturer's right to label the Product pending completion of the evaluation.
If the additional testing and evaluation reveals that the Product is
extremely dangerous or unsuspectingly hazardous, ETL shall notify the
participant that the Product listing has been cancelled and that the right to
affix an ETL Safety Label to the Product has been revoked. ETL shall also notify
the public pursuant to the terms of this contract.
Any re-evaluation necessitated as a result of information made available
subsequent to the original Product evaluation, shall be performed at the
participant's expense. Such additional testing and re-evaluation performed at
the discretion of ETL does not in any way affect the maintenance of quality
control of the manufacture of all Products currently listed by ETL and which are
being labeled under contract arrangements with ETL.
16. ETL's representative shall at all times during business hours or when
the factory or storage facilities are in operation have free, unannounced and
immediate access to the factories and other facilities wherein the Products, or
any component thereof, may be fabricated, processed, finished, stored or
located in order that such representative may properly perform his functions
under the Follow-Up Service. The right of the ETL representative to obtain such
free access to the factory or other such facilities shall not be conditioned
upon the execution by him or ETL of any agreement, waiver or release which in
any way purports to affect his legal rights or the rights or obligations of ETL,
and any such document executed in contravention of this provision shall be
without force or effect. ETL, however, shall direct ib representatives to comply
with any local, state, federal, or plant regulations which may be applicable
generally to the plant and Visiting personnel.
17. The Participant shall promptly provide and maintain in good condition
adequate and sufficient facilities and equipment when changes in Products
production Volume, Requirements, listing or the Procedure so require. The
Participant shall extend all necessary privileges and assistance to the ETL
representative in order that such representative may properly perform his
functions under the Follow-Up Service.
18. Should examination or test of a Product disclose features which in the
opinion of the ETL representative are not in compliance with the Requirements of
ETL, the Participant will either correct such features or remove the ETL Listing
Xxxx from such Products as are designated by the ETL representative. In the
event of disagreement between the Participant and ETL's representative as to
whether a Product is eligible to use the ETL Listing Xxxx the Participant may
hold the Product at the designated location, pending appeal to and a decision by
the ETL manager of Follow-Up Services, and shall make all ETL Listing Marks and
means for applying ETL Listing Marks available at all reasonable times for
inspection by the ETL representative.
19. It is recognized that, as an independent organization testing for
public safety, ETL Testing Laboratories, Inc., will from time to time notify the
public concerning Products covered by this Agreement then or previously marketed
which its investigations and tests disclose are extremely dangerous and
unsuspectingly hazardous. ETL will use its best efforts to notify the
participant prior to any notice given to third parties as contemplated herein of
such a condition.
20. ETL will refrain without the Participant's prior authorization in
writing, from voluntarily disclosing to third parties proprietary information
which is obtained by ETL in confidence from the Participant and which is not
already available to the public or subsequently acquired from other sources
without similar obligations. If ETL is served with a Subpoena, Subpoena Duces
Tecum, or Court Order concerning the Participant's proprietary information or a
report made by ETL, based upon the proprietary information, ETL shall
immediately notify the Participant by sending a copy of said Subpoena, Subpoena
Duces Tecum, or Court order, or other official Governmental request, with said
notification. The Participant shall determine whether it wishes to contest the
validity, scope, or content of said Subpoena, Subpoena Duces Tecum, or Court
Order, and shall advise ETL. The costs incurred by ETL in contesting or
complying with the Order or Subpoena including reasonable attorney's fees, shall
be reimbursed by the participant immediately upon invoicing by ETL.
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21. It is understood that the cost of the investigation, listing, labeling
and Follow-Up Service is defrayed by charges which vary according to the nature
and extent of the follow-up needed. Charges for maintaining the listing and
conducting the Follow-Up Service will be billed to the Applicant at current
rates which may be changed from time to time as ETL may determine and upon
written notice to the Applicant. It is understood that where an abnormal amount
of time is required as a result of the Participant's failure to conform to ETL
Requirements, or where the Participant's control procedures are below what is
considered normal under the circumstances, the cost of the extra service shall
also be billed to the Applicant. Applicant agrees to pay the charges for the
investigation, listing, labeling, and Follow-Up Service upon presentation of
invoices and shall be considered in default if the charges are not paid within
thirty days after presentation of invoices.
22. If a revision in the ETL Requirements is adopted or the Requirements
are withdrawn during the term of this agreement, ETL shall determine the date by
which use of the ETL Listing Xxxx under the Requirements shall terminate and
shall notify the Participant of such date. Participant agrees to comply with any
such notice. If the Requirements are revised, the continued listing of the
Product and the rights of the Participant to use the ETL Listing Xxxx beyond the
specified date shall be contingent on a revised Product being submitted to ETL,
found to comply with the revised Requirements, or, if the Requirements are
withdrawn, the listing of the Product shall be terminated on the specified date
and the right to use the ETL Listing Xxxx with cease on that date. Where
examination and or testing of the Product is necessary to determine its
compliance with new or rented Requirements, the cost of such determination shall
be charged to the Applicant on the same basis as a new Product submittal.
23. If the Participant defaults in any of its obligations under this
Agreement with ETL, which defaults may constitute a danger to the public, ETL
may, at its election immediately terminate or suspend as to any listed Products
affected by such default the rights or authority conferred by this Agreement
without prejudice to any other rights ETL may have. If the Participant defaults
in any of its financial obligations or other obligations under this agreement
with ETL which do not constitute an immediate threat to the public, the
Participant shall have thirty days after written notice of such default to cure
the same prior to ETL's termination or suspension as to any Used Products
affected by such defaults without prejudice to any other rights which ETL may
have. The Participant understands that ETL may notify vendors, authorities,
potential users, and others of any improper or unauthorized use of its ETL
Listing Xxxx or any other reference to ETL, when in the judgement of ETL such
notification is necessary in the interest of public safety or for ETL's own
protection.
24. Upon the occurrence of any of the following events or conditions, ETL
may terminate in whole or in part as to any or all listed Products the rights or
authority conferred by this Agreement upon not less than thirty days' written
notice to the other party indicating an intention to terminate and specifying
the proposed termination date: (a) Failure to use the ETL Listing Xxxx on the
listed Product for a period of two (2) consecutive calendar years, (b) the
filing of any voluntary or involuntary petition in bankruptcy by or with
creditors of the Participant, (c) the making of any arrangement or composition
with creditors of the Participant, ld) the appointment of receiver of the
Participant, or (e) the voluntary or involuntary liquidation of the business of
the Participant.
25. Either party may, for any reason, terminate in whole or in part as to
any or all listed Products the rights or authority conferred by this Agreement
upon out less than (60) days' written notice to the other party.
26. ANY notice of intention to terminate the Agreement shall specify the
proposed termination date and shall be sufficient if sent by registered or
certified mail return-receipt requested addressed to the party to be notified at
his last known address. The 60-day period shall be deemed to commence upon the
date of mailing of the notice in the United States Mail.
27. Termination of this Agreement by whatever means shall not affect any
liability of the parties existing as of the date of such termination, shall not
relieve the Participant of his obligation of indemnity as to Products
manufactured or distributed prior thereto, and shall not excuse the participant
from paying any charges owing to ETL.
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28. Upon termination of any rights or authority conferred by this
Agreement, the Participant shall, from and after the effective date of
termination, discontinue his use of the ETL Listing Xxxx in connection with any
Product which is the subject of such termination. In such a case, the ETL
representative shall, upon demand, have the right to acquire possession of any
unused ETL Listing Marks which were issued for use in connection with the
Product which is the subject of such termination.
29. Listing, Labeling, and Follow-Up Service shall be discontinued on any
Product which, for any reason, is no longer eligible for listing.
30. The rights running to Participant under this agreement may not be
assigned to or acquired by any other person, firm, or Corporation without ETL's
written authorization.
31. This Agreement shall continue in effect for a period of one year from
the date first above written and shall automatically be renewed thereafter for
periods of one year, unless the termination rights provided for in this
Agreement are exercised.
32. The Participant may not hold ETL liable for any incorrect published
listing of Product(s) in the Directory of ETL Listed Products, if ETL notifies
all those to whom it has sent the most recent issue of the Listing Directory, as
to the incorrect listing, unless the liability is as a result of intentional or
willful act or ETL's gross negligence.
ETL TESTING LABORATORIES, INC. Accepted by: XXXXXX INDUSTRIES INC.
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(Participant Company Name) or
(Manufacturer Company Name)
By: /s/ XXXXXX X. ROLL By: /s/ XXXX X. XXXXXX
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Xxxxxx X. Roll (Proprietor, Partner or Authorized Officer - Signature)
By: Xxxx X. Xxxxxx
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(Name of Authorized Individual - Printed or Typed)
Title: Chief Technical Officer Title: Chief Executive Officer
Date Signed: 6/10/97 Date Signed: June 6, 1997
