Exhibit 10.1
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MANUFACTURING AND SUPPLY AGREEMENT
By and Between
TECHNICAL CONSUMER PRODUCTS, INC.
and
SHANGHAI XXXX XXX ELECTRONIC ENGINEERING CO., LTD. and
SHANGHAI JENSING ELECTRON ELECTRICAL EQUIPMENT CO., LTD.
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Dated as of January 17, 2002
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TABLE OF CONTENTS
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Page
ARTICLE I. DEFINITIONS......................................................1
Section 1.1 Other Capitalized Terms.....................................1
ARTICLE II. MANUFACTURE OF PRODUCTS..........................................3
Section 2.1 Manufacture and Supply......................................3
Section 2.2 Performance of Work.........................................3
Section 2.3 Inspection, Reports and Services............................4
Section 2.4 Place of Work...............................................4
Section 2.5 Development of Products.....................................4
Section 2.6 Right to Cover..............................................4
ARTICLE III. PRODUCT FORECASTS AND PRODUCTION REQUIREMENTS....................5
Section 3.1 Product Sales Forecasts.....................................5
Section 3.2 Production..................................................5
Section 3.3 Shipment and Delivery.......................................5
Section 3.4 Risk of Loss................................................5
Section 3.5 Rejection and Return........................................5
ARTICLE IV. PRICING; PAYMENT.................................................5
Section 4.1 Pricing.....................................................5
Section 4.2 Accounting for Product Costs................................6
Section 4.3 Invoicing and Terms of Payment..............................7
Section 4.4 Currency....................................................7
Section 4.5 Taxes.......................................................7
ARTICLE V. WARRANTY.........................................................7
Section 5.1 Warranty....................................................7
ARTICLE VI. EXCLUSIVITY......................................................8
Section 6.1 Exclusivity.................................................8
ARTICLE VII. CONFIDENTIALITY AND PROTECTION OF PROPRIETARY RIGHTS.............9
Section 7.1 Confidential Treatment......................................9
Section 7.2 Permitted Disclosure........................................9
Section 7.3 Compelled Disclosure........................................9
ARTICLE VIII. TERM AND TERMINATION.............................................9
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Page
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Section 8.1 Term........................................................9
Section 8.2 Termination................................................10
Section 8.3 Effect of Termination......................................10
ARTICLE IX. REPRESENTATIONS, INSURANCE AND INDEMNIFICATION..................11
Section 9.1 Representations............................................11
Section 9.2 Indemnification by Suppliers...............................12
Section 9.3 Indemnification by TCP.....................................12
Section 9.4 Limitation on Indemnity....................................12
Section 9.5 Indemnification Procedures.................................12
ARTICLE X. RELATIONSHIP OF THE PARTIES.....................................13
Section 10.1 No Joint Venture...........................................13
ARTICLE XI. MISCELLANEOUS...................................................14
Section 11.1 Notices....................................................14
Section 11.2 Assignment.................................................14
Section 11.3 No Sub-Contracting.........................................15
Section 11.4 Governing Law..............................................15
Section 11.5 Arbitration................................................15
Section 11.6 Waiver.....................................................16
Section 11.7 Integration; Amendments....................................16
Section 11.8 Force Majeure..............................................16
Section 11.9 Severability...............................................17
Section 11.10 Headings...................................................17
Section 11.11 Counterparts and Facsimile.................................17
Section 11.12 Translation................................................17
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MANUFACTURING AND SUPPLY AGREEMENT
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THIS MANUFACTURING AND SUPPLY AGREEMENT (this "AGREEMENT"), dated as of
January 17, 2002, is made and entered into by and between Technical Consumer
Products, Inc., presently having its principal place of business at 000 Xxxx
Xxxxx, Xxxxxx, Xxxx, Xxxxxx Xxxxxx ("TCP"), and Shanghai Xxxx Xxx Electronic
Engineering Co., Ltd., and Shanghai Jensing Electron Electrical Equipment Co.,
Ltd., presently having their principal places of business at Xx. 00 Xxx Xxxxx
Xxxx, Xxxx, Xx Jing, Xxxx Xxxxx, Xxxxxxxx 000000, Xxxxx (jointly and severally,
"SUPPLIERS" and each individually a "SUPPLIER").
RECITALS
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A. Prior to the date hereof, Suppliers have been manufacturing for, and
supplying products and/or services to, TCP and its predecessors. The period
during which a Supplier manufactured and/or supplied products or services to TCP
or its predecessors is referred to herein as the "ORIGINAL SERVICE PERIOD."
B. To memorialize the relationship between TCP and Suppliers that has
developed over the years and to set forth the terms of the continuing
relationship between TCP and Suppliers, TCP and Suppliers desire to enter into
this Agreement to provide that Suppliers will continue to manufacture and
package products exclusively for TCP.
C. Prior to the execution of this Agreement, TCP and Suppliers have
entered into a Technology Licensing Agreement (the "LICENSING AGREEMENT") that
defines the rights and obligations of TCP and the Suppliers with respect to the
ownership, use, licensing and development of certain Technology (as defined
herein).
AGREEMENTS
NOW, THEREFORE, in consideration of the recitals and the mutual
covenants of this Agreement, the parties agree as follows:
ARTICLE I. DEFINITIONS
Section 1.1 OTHER CAPITALIZED TERMS. Except as otherwise defined herein,
capitalized terms used herein will have the following meanings:
"AFFILIATE" will mean, with respect to any Person, any other Person
that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person.
"CONFIDENTIAL INFORMATION" will mean any and all information that is
not generally known to the public or that would constitute a trade secret under
the laws of the State of Ohio and that is (i) disclosed to or otherwise obtained
by any Supplier, whether disclosure is made in writing, by samples, orally,
visually or otherwise, in connection with this Agreement regardless of whether
provided under this Agreement or provided prior to the execution of this
Agreement, or (ii) that is developed by a Supplier or TCP under this Agreement,
or that was developed during the
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Original Service Period, including, in each case, without limitation (A) TCP
Technology, (B) know-how, prototypes, drawings, manuals, and software programs,
(C) Resulting Technology, (D) technical information pertaining to development
work, manufacturing processes, dimensions, clearances, tolerances,
specifications, or materials, (E) operational and performance information and
data, (F) business information pertaining to marketing, pricing, profits,
operating costs, sales information, vendors, customers, employees, forecasts,
accounting records and research and development costs, (G) such information that
may be from time to time provided under SECTION 6.1(B) of this Agreement, and
(H) such other information with respect to a Product as is provided to a
Supplier to enable a Supplier to understand the use, nature, operation,
performance and maintenance, sale, marketability and profitability of a Product.
Notwithstanding the foregoing, Confidential Information does not include (i) any
information that was publicly available at the time of disclosure, (ii) any
information that became publicly available after disclosure through no fault of
a Supplier, or (iii) with respect to information that is disclosed to or
otherwise obtained by a Supplier, either directly or indirectly, any information
that was (y) in a Supplier's possession prior to disclosure, and was not the
subject of an earlier confidential relationship, or (z) rightfully acquired by a
Supplier from a third party, who was lawfully in possession of such information
and was under no obligation to maintain its confidentiality.
"PERSON" will mean an individual, partnership, limited liability
company, corporation, joint stock company, unincorporated organization or
association, trust or joint venture, or a governmental agency or political
subdivision thereof.
"PRODUCT(S)" will mean the products identified on ANNEX A attached
hereto, as amended from time to time pursuant to SECTION 2.1(c).
"PURCHASE ORDER" will mean any purchase order, production schedule or
other production forecast that TCP provides a Supplier from time to time under
this Agreement setting forth the Products that TCP desires to have manufactured
by a Supplier under this Agreement.
"RESULTING TECHNOLOGY" will mean all Technology, of whatsoever nature
and description, or any interest therein, that arises directly out of (i) TCP's
performance under this Agreement, (ii) that is developed by TCP under this
Agreement, or (iii) that is developed by a Supplier for TCP under this
Agreement, including, without limitation, innovations relating to, or
improvements on, the Products.
"TECHNOLOGY" will mean all proprietary ideas, formulae, compositions,
technology and know-how, manufacturing and production processes and techniques,
research and development information, drawings, specifications, designs, plans,
proposals, technical data or information relating to lighting products and
accessories, and all copies and tangible embodiments thereof, including, without
limitation, all patents and patent applications, including any and all
extensions, reissues, divisions, continuations and continuations-in-part with
respect to any of the foregoing any where in the world, product specifications,
software programs, data and related documentation, all copyrightable works in
any form or medium now in existence or hereafter created, copyrights and
registrations, applications and renewals for any of the foregoing, and other
intellectual property rights.
"TCP TECHNOLOGY" will mean all Technology, of whatsoever nature and
description, or any interest therein, that TCP has (i) developed or acquired as
of the date of this Agreement or
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(ii) that TCP developed or acquired previously or that may be developed or
acquired during the term of this Agreement, including all improvements,
upgrades, enhancements, modifications and/or updates made or acquired during the
Original Service Period or during the life of this Agreement, and that TCP
provides or otherwise makes available to Suppliers in connection with the
matters contemplated by this Agreement.
ARTICLE II. MANUFACTURE OF PRODUCTS
Section 2.1 MANUFACTURE AND SUPPLY.
(a) During the term of this Agreement, Suppliers will:
(i) manufacture and package the Products for TCP; and
(ii) deliver the Products as required by TCP Purchase Orders or
as otherwise specified by TCP.
TCP may communicate Purchase Orders either in writing or orally in
accordance with SECTION 11.1.
(b) Except as otherwise permitted under SECTION 6.1(b) of this Agreement,
during the term of this Agreement, Suppliers will not manufacture, assemble or
package Products except for TCP. Subject to SECTION 6.1(b) of this Agreement,
this obligation remains even if TCP is purchasing product from other vendors
pursuant to SECTION 2.6.
(c) TCP has delivered to Suppliers the drawings, bills of material and
other specifications necessary for Suppliers to manufacture and package the
Products identified on ANNEX A. From time to time, TCP may add or change the
Products to be manufactured by Suppliers, by delivering the drawings, bills of
material and other specifications necessary for Suppliers to manufacture and
package the new or modified Products. Any of such other specifications may be
communicated to Suppliers either in writing or orally in accordance with SECTION
11.1. Thereafter, Suppliers will manufacture and package such Products under the
terms of this Agreement and in accordance with Product specifications.
(d) All tools and tooling necessary to manufacture Products for TCP under
this Agreement is the property of Suppliers. Suppliers are responsible for the
proper maintenance, repair and replacement of any tools or tooling.
(e) TCP is responsible for obtaining any government approvals or other
Product approvals or certifications required by TCP's customers or the
jurisdiction in which TCP resells Products. Suppliers are responsible for
obtaining any governmental, regulatory, export or other approvals necessary or
appropriate to manufacture, package and deliver the Products to TCP.
Section 2.2 PERFORMANCE OF WORK.
(a) Suppliers will maintain ISO 9002 certification for all
manufacturing facilities and if improved manufacturing techniques or practices
enable manufacturers to achieve other quality or technical certification,
Suppliers will use all commercially reasonable efforts to obtain such other
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certification. Suppliers will train all employees or others who work on the
manufacture or packaging of Products to maintain Product quality.
(b) In performing their obligations under this Agreement, Suppliers
will comply with all applicable laws and regulations.
Section 2.3 INSPECTION, REPORTS AND SERVICES.
(a) Upon TCP's reasonable request, TCP will be entitled to inspect any
or all facilities of Suppliers to confirm compliance with this Agreement. This
includes, without limitation, the right to (i) review and approve Suppliers'
component material suppliers, components and raw materials, (ii) send
representatives to inspect the manufacturing, packaging and any other activities
being performed by Suppliers under this Agreement, (iii) inspect deliverables
and otherwise evaluate the ongoing results of Suppliers' manufacturing and
packaging of the Products. Suppliers will make available, upon the request of
TCP and at no charge, results of internal or external qualification tests
performed by Suppliers for the Products manufactured by Suppliers.
(b) If requested by TCP, Suppliers will make reports to TCP as TCP may
request regarding production and packaging activities and any Resulting
Technology under this Agreement. Reports will be in a format, in such detail,
and in such timeframes as TCP may reasonably request from time to time.
(c) From time to time TCP may render to a Supplier management and
advisory services, including, without limitation, management and advisory
services relating to expansion, quality control, production, component sourcing,
accounting, freight and logistics in connection with its manufacture and supply
of Products as contemplated hereby. As consideration for such services provided
by TCP, Suppliers will pay TCP such amounts as TCP and Suppliers agree prior to
TCP providing such services.
Section 2.4 PLACE OF WORK. TCP may visit at any time, and from time to
time, any of Suppliers facilities where packaging or manufacturing is being
performed.
Section 2.5 DEVELOPMENT OF PRODUCTS. Suppliers will cooperate with TCP to
identify components and sources of supply for components and parts, and to offer
suggestions regarding the design and configuration of Products and of new
products under development by TCP as requested by TCP from time to time.
Section 2.6 RIGHT TO COVER. If at any time TCP is in good faith concerned
about Suppliers' ability to supply TCP Products in accordance with the terms of
this Agreement, TCP may arrange for an alternative source(s) of supply for the
Products. Unless Suppliers have notified TCP as contemplated by SECTION 3.2(b)
of this Agreement that the delivery date or other terms of a Purchase Order
cannot be achieved, if Suppliers cannot timely ship and deliver adequate
quantities of Product to TCP, Suppliers will reimburse TCP for such reasonable
costs TCP incurs in obtaining substitute performance. Subject to SECTION 6.1(b)
of this Agreement, TCP's purchase from another source of supply does not relieve
Suppliers from their obligation of exclusivity.
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ARTICLE III. PRODUCT FORECASTS AND PRODUCTION REQUIREMENTS
Section 3.1 PRODUCT SALES FORECASTS. From time to time TCP will provide to
Suppliers the projected amount of each Product that TCP requires.
Section 3.2 PRODUCTION.
(a) Suppliers will manufacture and package such quantities of each
Product as may be requested by TCP from time to time during the term of this
Agreement.
(b) Products will be delivered at the time specified, shipped and
packaged as specified in TCP Purchase Orders. Unless a Supplier notifies TCP,
which notice may be in writing or orally, as soon as is reasonably possible
after receiving a Purchase Order that the delivery date or other terms of the
Purchase Order cannot be achieved, Suppliers will deliver and meet the Purchase
Order terms.
Section 3.3 SHIPMENT AND DELIVERY. Suppliers will ship and deliver Products
as directed in the Purchase Order or otherwise by TCP. Suppliers will target one
hundred percent (100%) on time delivery. Purchase Orders will state the dates
for Suppliers' committed delivery of Products.
Section 3.4 RISK OF LOSS. Title to, and risk of loss or damage and
deterioration of a Product, and parts thereof, will pass from Suppliers directly
to TCP upon delivery of the Product to TCP as specified in the Purchase Order or
otherwise by TCP. Suppliers will ship the Products to TCP by such carriers as
mutually agreed to from time to time by TCP and a Supplier, where, in the case
of maritime carriage, unless directed otherwise by TCP, Suppliers will instruct
the carrier to transport Products below or under deck to ensure full insurance
coverage. Products will be shipped FCA shipping point or such other point
designed by TCP for delivery (as defined by Incoterms 2000, as published by the
International Chamber of Commerce). Any customer of TCP may, with reasonable
advance notice, take delivery of Products Ex Works (Incoterms 2000).
Section 3.5 REJECTION AND RETURN. TCP or its customer may, at its option,
inspect the Products upon delivery for the sole purpose of identifying the
Products and general verification of quantities in order to provide a basis for
payment, if any. Such inspection is not acceptance of any Products. TCP or its
customer may reject or return at Suppliers' risk and expense all Products that
were not shipped in accordance with applicable Purchase Orders.
ARTICLE IV. PRICING; PAYMENT
Section 4.1 PRICING.
(a) The price for each Product supplied by a Supplier and purchased by
TCP hereunder will be determined from time to time by TCP and Suppliers;
provided, however, in no event will the aggregate price of all Products
purchased from Suppliers under this Agreement in a calendar year exceed, for
that calendar year, Suppliers' (i) aggregate cost of materials incurred to
manufacture all of such Products, PLUS (ii) aggregate labor costs incurred to
manufacture such Products, PLUS (iii) overhead related to the manufacture of
such Products, PLUS (iv) a margin of 12% of the total of clauses (i), (ii) and
(iii), or such lesser price as the parties agree from time to
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time (the "MAXIMUM AGGREGATE PRICE"). The total of the amounts set forth in
clauses (i), (ii) and (iii) are referred to herein as the "TOTAL ANNUAL PRODUCT
COST." If Suppliers and TCP cannot mutually agree on the price of a particular
Product, at TCP's option, the price of such Product will be calculated using the
same formula used to calculate the Maximum Aggregate Price where the costs
referred to in clauses (i), (ii) and (iii) will include only those costs
incurred to manufacture such Product.
(b) Suppliers cost methodology and any revisions, modifications, or
updates to costing models or programs must be approved by TCP.
(c) The price paid for Product may be reduced for any costs or expenses
incurred by TCP that are chargeable to Suppliers hereunder, including, without
limitation, amounts described in SECTIONS 2.6, SECTION 3.5 and SECTION 4.2.
Section 4.2 ACCOUNTING FOR PRODUCT COSTS.
(a) During the term of this Agreement, within ninety days after the end
of each calendar year, each Supplier will provide TCP, in English, with its
financial statements for the most recently completed calendar year, prepared in
a manner that presents fairly in all material respects the consolidated
financial position of such Supplier at the dates stated in such financial
statements and the results of its operations for the periods stated therein.
Such financial statements will include a balance sheet as of, and a statement of
operations for, the most recently completed calendar year. To the extent that
such financial statements have been audited by any private or governmental
organization or otherwise, each Supplier will provide TCP with a copy of the
auditor's report thereon. If requested by TCP during the term of this Agreement,
within forty-five days of TCP's request Suppliers will render a written report
to TCP setting forth the Total Annual Product Cost together with a calculation
of the Total Annual Product Cost in sufficient detail for TCP to verify such
amount. Upon TCP's request, Suppliers will provide TCP documentation supporting
the calculation of the Total Annual Product Cost. If any report evidences that
TCP has paid more than the Maximum Aggregate Price, TCP may, at its election,
either (1) take a corresponding credit against subsequent payments due a
Supplier hereunder, or (2) receive a refund from the Suppliers of any such
overpayments within forty-five days of TCP's request.
(b) TCP will have the right, upon commercially reasonable advance
written notice to a Supplier, to inspect Suppliers' books and records relating
to the Total Annual Product Cost, or to designate a representative to make such
inspection for the purpose of verifying the Total Annual Product Cost. Any such
inspection will be made during normal business hours and on a confidential
basis. In the event that TCP designates a certified public accountant to make
such an inspection, TCP will bear the expense of engaging such accountant,
unless it is determined that TCP has paid the Suppliers more than the Maximum
Aggregate Price payable for such calendar year by more than five (5%) percent,
in which case Suppliers will reimburse TCP for all out-of-pocket expenses
incurred by TCP in connection with such audit. In all events Suppliers will, at
TCP's election, either (1) permit TCP to take a corresponding credit against
subsequent payments due a Supplier hereunder in the full amount of the
overpayment that any such audit indicates or (2) pay TCP in full the amount of
the overpayment that any such audit indicates within forty-five days following
written notice to TCP of the overpayment indicated by such audit.
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Section 4.3 INVOICING AND TERMS OF PAYMENT.
(a) Following delivery of Products manufactured and delivered by
Suppliers, Suppliers will provide TCP with an invoice setting forth the amount
due with respect to such Products.
(b) Within a reasonably prompt period of time following delivery of
Products to the final destination by the carrier of such Products, TCP will pay
the Product price with respect to the invoiced Product (i) in cash, in
immediately available funds by wire transfer to an account specified by
Suppliers, (ii) by set-off against amounts owed to TCP by a Supplier, or (iii)
by such other method as the parties mutually agree.
(c) All payments made by TCP to Suppliers hereunder will be remitted to
the address of Suppliers as set forth in SECTION 11.1 of this Agreement, or to
such other place as Suppliers may direct. TCP will be entitled to deduct and
withhold from any payments to Suppliers hereunder any such withholding or
deductions as may be required by law as a result of any of the transactions made
or contemplated under this Agreement.
Section 4.4 CURRENCY. All pricing, payments, credits, allowances or other
monetary adjustments under this Agreement will be in US Dollars.
Section 4.5 TAXES.
(a) Suppliers will pay all value added, sales or use taxes presently
due, or which may become due, in China, with respect to any Product purchased by
TCP. Suppliers will pay and be fully responsible for any and all contributions
or taxes for unemployment insurance, old age or retirement benefits, pensions or
annuities (if any) and all other employee compensation in connection with the
work performed hereunder.
(b) TCP will pay all duties and other custom charges presently due, or
which may become due, in the United States with respect to any Product purchased
by TCP.
ARTICLE V. WARRANTY
Section 5.1 WARRANTY.
(a) Suppliers warrant that, during the warranty period described in
SECTION 5.1(b) below, the Products will be merchantable, will conform to the
provisions of this Agreement and to the applicable product specifications and
will be free of defects in workmanship and materials. Products, at the time of
delivery, will be free and clear of liens and encumbrances and claims by others.
Suppliers will convey good title to the Products free and clear of any lien,
claim or encumbrance.
(b) If at any time in the twenty-four months after delivery of a
Product, a defect or breach of warranty is found in five percent (5%) or more of
the Products in any shipment or in the Products manufactured on any day (or in
any longer period), Suppliers will replace the defective or non-conforming
Products at no expense to TCP. TCP will notify Suppliers of any non-conformity
promptly upon discovery, and the parties will cooperate to understand the cause
and amount of the non-conforming Products. At Suppliers request and expense, TCP
will use
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commercially reasonable efforts to (i) provide Suppliers with samples of any
non-conforming Products and (ii) will store Products (at Suppliers' expense) for
inspection by Suppliers.
(c) If TCP asks for replacement Products under SECTION 5.1(b),
Suppliers will deliver the replacement Products as quickly as possible, and will
not delay because of any question, dispute or disagreement about the
non-conforming Products or about TCP's right to request or receive replacement
Products. If the parties later agree or it is otherwise determined that TCP was
not entitled to replacement Products, TCP will pay for the replacement Products
and the shipping or expediting expense incurred by Suppliers in order to deliver
the replacement Products.
(d) Suppliers will have no responsibility or obligation under warranty
claims with respect to Products that have been subjected to abuse, misuse,
accident, alteration, neglect or unauthorized repair. The warranties and
remedies set forth herein are conditioned upon proper storage, installation, use
and maintenance, and conformance with any applicable recommendations of
Suppliers or TCP.
(e) In addition to its other rights hereunder, TCP may set-off from any
amounts owed by TCP to Suppliers under this or any other agreement between TCP
and Suppliers any payments due TCP under this Agreement, including this ARTICLE
V. The foregoing will in no way limit TCP's right to offset from any payments
due to Suppliers under this Agreement amounts owed by Suppliers to TCP under any
other agreement between TCP and Suppliers.
ARTICLE VI. EXCLUSIVITY
Section 6.1 EXCLUSIVITY.
(a) Except as contemplated by SECTION 6.2(b) of this Agreement, during
the term of this Agreement, Suppliers will not, directly or indirectly, without
the prior written consent of TCP, sell, market, offer, manufacture, produce, or
otherwise make or distribute, any lamps, ballasts, light fixtures, LEDs or any
other products or accessories (collectively, "COMPETITIVE PRODUCTS") that are
used for the same or similar purposes as, or that are otherwise competitive
with, the Products.
(b) Subject to the last sentence of this SECTION 6.1(b), and without
limiting its other obligations hereunder, including, without limitation, its
confidentiality obligations under ARTICLE VII, Suppliers may sell, market,
offer, manufacture, produce, or otherwise make or distribute Competitive
Products, and Suppliers exclusivity obligations under SECTION 6.1(a) will
terminate, only if (i) during the prior six months (to be measured on June 30
and December 31 of each calendar year), the aggregate cost of all of the
lighting products and accessories that TCP purchased from other suppliers, or
manufactured internally, through its or any of its subsidiaries' operations,
during such period exceeded 30% of the aggregate cost of all lighting products
and accessories that TCP has purchased or manufactured internally during such
period or (ii) if during any calendar year the aggregate dollar amount of
Products purchased from Suppliers is less than 75% of the aggregate dollar
amount of Products purchased from Suppliers in the prior calendar year. Within
thirty days of a Supplier's request, after the end of the period described in
clause (i) of this paragraph (b), TCP will provide Suppliers an accounting of
the total cost of lighting products and accessories that TCP has manufactured
internally or purchased during such period from Suppliers and other third
parties, where the calculation of the cost of lighting
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products and accessories manufactured internally will be based on the actual
cost incurred by TCP or its subsidiary to manufacture such lighting products
and/or accessories. Any such accounting will be provided on a confidential basis
and in sufficient detail to enable Suppliers to determine if the threshold in
clause (i) of this paragraph (b) has been exceeded. In no event may Suppliers
sell, market, offer, manufacture, produce, or otherwise make or distribute
Competitive Products using Confidential Information or in violation of the
Licensing Agreement.
ARTICLE VII. CONFIDENTIALITY AND PROTECTION OF PROPRIETARY
RIGHTS
Section 7.1 CONFIDENTIAL TREATMENT. Suppliers specifically acknowledge that
the Confidential Information, whether or not reduced to writing, derives
independent economic value from not being readily known to or ascertainable by
proper means by others who can obtain economic value from its disclosure or use.
Suppliers acknowledge that reasonable efforts have been put forth by TCP to
maintain the secrecy of the Confidential Information. All Confidential
Information is and will remain the sole property of TCP. During the term of this
Agreement and thereafter, Suppliers agree that the Confidential Information will
be kept in strict confidence and, except as otherwise permitted in this ARTICLE
VII or in the Licensing Agreement, Suppliers will not directly or indirectly
disclose, furnish, disseminate, make available or use the Confidential
Information during the term of this Agreement or thereafter except as is
required to manufacture Products for sale to, or otherwise at the direction of,
TCP as contemplated by this Agreement.
Section 7.2 PERMITTED DISCLOSURE. Suppliers may disclose the Confidential
Information to their employees but only on a basis and to the extent that, in
the commercially reasonable judgment of Suppliers such disclosure is necessary
for them to manufacture Products for sale to, or otherwise at the direction of,
TCP as contemplated by this Agreement. Suppliers will assure that all Persons to
whom any information encompassed within or related to the Confidential
Information is disclosed will, prior to disclosure, keep such information in
strict confidence and not directly or indirectly disclose, furnish, disseminate,
make available or use the Confidential Information during or after the term of
this Agreement except as is required to perform Suppliers' obligations under
this Agreement.
Section 7.3 COMPELLED DISCLOSURE. If a Supplier is required by law or court
order to disclose any Confidential Information, Supplier will (a) notify TCP in
writing as soon as possible, but in no event less than thirty calendar days
prior to any such disclosure, (b) cooperate with TCP to preserve the
confidentiality of such information consistent with applicable law, and (c) use
its best efforts to limit any such disclosure to the minimum disclosure
necessary to comply with such law or court order.
ARTICLE VIII. TERM AND TERMINATION
Section 8.1 TERM. The term of this Agreement, unless sooner terminated
under SECTION 8.2, will be for ten years commencing on the date first above
written; provided, however, that upon expiration of the initial term or any
renewal term, the term of this Agreement will continue for additional five year
terms thereafter unless terminated under SECTION 8.2. Subject to SECTION 8.2 of
this Agreement, this Agreement may be terminated by any party at the expiration
of the initial term or at the expiration of any renewal term thereafter. Such
termination will only
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be effective if the party wishing to terminate this Agreement delivers written
notice to the other parties of its intention to terminate this Agreement and
such written notice (except as provided in SECTION 8.2 of this Agreement) is
received by such other parties not less than ninety days prior to the expiration
of the term.
Section 8.2 TERMINATION. This Agreement will terminate upon the earliest
of:
(a) expiration of the initial term or any extension thereof under
SECTION 8.1;
(b) automatically, without notice, upon the institution of voluntary or
involuntary proceedings by or against any other party in bankruptcy, or under
any insolvency law, or for corporate reorganization, the appointment of a
receiver, or petition for the dissolution of such other party or an assignment
by such other party for the benefit of creditors;
(c) upon ninety days prior written notice by any party, as a result of
any governmental actions, determination, decision or directive that
significantly impairs the effectiveness of this Agreement, if such action,
determination, decision or directive is not overruled, changed or otherwise
rescinded within ninety days after receipt of written notice of the intention to
terminate this Agreement;
(d) immediately upon written notice (subject to the opportunity to cure
under clause (i) of this SECTION 8.2(d)) by TCP, as a result of a material
breach of this Agreement or the Licensing Agreement by a Supplier that is (i)
not cured within ninety days after receipt of written notice of the breach from
TCP or (ii) incapable of being cured;
(e) immediately upon written notice (subject to the opportunity to cure
under clause (i) of this SECTION 8.2(e)) by a Supplier, as a result of a
material breach by TCP of this Agreement or the Licensing Agreement that is (i)
not cured within ninety days after receipt of written notice of the breach from
a Supplier or (ii) incapable of being cured; and
(f) the mutual written agreement of all of the parties hereto.
Upon the occurrence of any event giving TCP the right to terminate this
Agreement, TCP, at its sole election, may terminate this Agreement with respect
to one of the Suppliers without affecting the rights and obligations of the
other Supplier under this Agreement. Further, in the event a Supplier ceases to
exist, subject to such Suppliers ongoing obligations under this Agreement, this
Agreement will terminate with respect to such Supplier without affecting the
rights and obligations of the other Supplier under this Agreement. In the event
this Agreement terminates with respect to a Supplier but otherwise remains in
effect, all references in this Agreement to Suppliers will be deemed to be to
the remaining Supplier.
Section 8.3 EFFECT OF TERMINATION.
(a) Any termination of this Agreement, however effected, will not
release any party from its obligations or duties under this Agreement that, by
their terms and/or expressed intent, may require performance subsequent to any
such termination (including, without limitation, ARTICLE V, or ARTICLE VII), and
all provisions of this Agreement that set forth such obligations or duties and
such other general or procedural provisions that may be relevant to any attempt
to enforce
10
such obligations or duties, will survive any such termination of this Agreement
until such obligations or duties have been performed or discharged in full.
(b) In addition to the foregoing, in the event of termination of this
Agreement for any reason, unless otherwise agreed to in writing by the parties,
the parties will have the following rights and obligations:
(i) TCP may, from time to time, ask that Suppliers deliver to TCP,
or its designee, in good order, all materials and supplies provided by TCP to
manufacture or package the Products. Suppliers will fulfill TCP's requests as
promptly as practicable. All documentation and other tangible materials that
contain or embody Confidential Information will be returned or destroyed.
(ii) Suppliers will be permitted to use the TCP Technology and
Resulting Technology solely as contemplated by the Licensing Agreement to
fulfill any continuing obligations under SECTION 8.3(iii).
(iii) Any termination of this Agreement, however effected, will
not release any party from its obligations or duties under this Agreement with
respect to any Purchase Order issued prior to termination hereof.
ARTICLE IX. REPRESENTATIONS, INSURANCE AND INDEMNIFICATION
Section 9.1 REPRESENTATIONS.
(a) Each Supplier represents that it has the requisite skills and
facilities to perform its obligations under this Agreement.
(b) Suppliers will comply with the United States Foreign Corrupt
Practices Act in connection with all actions under this Agreement. Without
limiting the generality of the foregoing, each Supplier and its employees and
agents will not offer, pay, promise to pay, give or promise to give any money or
anything of value, directly or through third parties, to any governmental
official, political party, political official, candidate for political office or
to any person, while knowing or having reason to know that all or a portion of
such money or thing of value will be offered, paid, given or promised, directly
or indirectly, for purposes of influencing any act or decision of the foregoing
or inducing the foregoing to use his, her or its influence with a government or
instrumentality thereof to affect or influence any act or decision of such
government or instrumentality. Except for directors appointed by a Supplier's
equity holder that is controlled by any Chinese township or governmental agency
or division, and except for such other person that a Supplier may be required to
employ under the laws of China, each Supplier represents and warrants that none
of its officers, directors or employees is an official or employee of a
government or of any governmental agency or instrumentality and that it will not
employ any such individual during the term of this Agreement
(c) Each party represents that: (i) the execution and delivery by it of
this Agreement and the Licensing Agreement and the performance by it of its
obligations hereunder have been duly authorized by all requisite corporate
action and will not violate (A) any provision of any law or regulation
applicable to it, (B) any of its constituent documents, or (C) any provision of
any
11
indenture, agreement or other instrument to which it or any of its subsidiaries
or any of its properties or assets is bound, or conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, charge, restriction, claim or encumbrance of
any nature whatsoever upon any of its properties or assets.
Section 9.2 INDEMNIFICATION BY SUPPLIERS. Each Supplier will, jointly and
severally, protect, indemnify, defend and hold harmless TCP and the directors,
officers, employees, agents, professional representatives and successors of TCP,
from and against any and all liabilities, damages, claims, demands, assessments,
penalties, fines, judgements, awards, settlements, taxes, costs, fees and other
expenses of any kind (including reasonable attorneys' fees) (collectively,
"DAMAGES") incurred or sustained by them in connection with any action, suit,
claim or proceeding (whether civil or criminal, at law or in equity) arising out
of or related to (A) the breach by a Supplier or any of its representatives of
any covenant, agreement or obligation contained in this Agreement or the
Licensing Agreement, including any covenant, agreement or obligation contained
in any Purchase Order or any other agreement, document or instrument that forms
a part of this Agreement, (B) the inaccuracy or breach of any representation or
warranty of a Supplier contained in this Agreement or the Licensing Agreement,
(C) Suppliers' delays and/or errors in delivering Products, and (D) a Product's
failure to conform to the warranties set forth in ARTICLE V.
Section 9.3 INDEMNIFICATION BY TCP. TCP will protect, indemnify, defend and
hold harmless each Supplier and the directors, officers, employees, agents,
professional representatives and successors of Suppliers, from and against any
and all Damages incurred or sustained by them in connection with any action,
suit, claim or proceeding (whether civil or criminal, at law or in equity)
arising out of or related to (A) the breach by TCP or any of its representatives
of any covenant, agreement or obligation contained in this Agreement or the
Licensing Agreement, including any covenant, agreement or obligation contained
in any Purchase Order or any other agreement, document or instrument that forms
a part of this Agreement, and (B) the inaccuracy or breach of any representation
or warranty of TCP contained in this Agreement or the Licensing Agreement.
Section 9.4 LIMITATION ON INDEMNITY. Notwithstanding SECTION 9.2 and
SECTION 9.3, no party will be required to indemnify a Person for any Damages
caused by the gross negligence or willful misconduct of the Person seeking to be
indemnified.
Section 9.5 INDEMNIFICATION PROCEDURES.
(a) A party obligated to indemnify a Person hereunder will be referred
to as an "INDEMNIFYING PERSON," and the Person entitled to indemnification under
this Agreement will be referred to as a "BENEFICIARY."
(b) Promptly after receipt by a Beneficiary of notice of any claim or
the commencement of any action, or upon discovery of any facts that a
Beneficiary believes may give rise to a claim for indemnification from an
Indemnifying Person hereunder, such Beneficiary will, if a claim in respect
thereof is to be made against an Indemnifying Person under SECTION 9.2 or
SECTION 9.3, notify such Indemnifying Person in writing in reasonable detail of
the claim or the commencement of such action.
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(c) If any such claim will be asserted or brought against an
Indemnifying Person, such Beneficiary will, if a claim in respect thereof is to
be made against the Indemnifying Person under SECTION 9.2 or SECTION 9.3, notify
the Indemnifying Person in writing of the commencement thereof; but the failure
so to notify the Indemnifying Person (i) will not relieve it from liability
hereunder unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the Indemnifying Person of substantial
rights and defenses and (ii) will not, in any event, relieve the Indemnifying
Person from any obligations to any Beneficiary other than the indemnification
obligation provided above. The Indemnifying Person will be entitled to appoint
counsel of the Indemnifying Person's choice at the Indemnifying Person's expense
to represent the Beneficiary in any action for which indemnification is sought
(in which case the Indemnifying Person will not thereafter be responsible for
the fees and expenses of any separate counsel retained by the Beneficiary or
parties except as set forth below); provided, however, that such counsel will be
reasonably satisfactory to the Beneficiary. Notwithstanding the Indemnifying
Person's election to appoint counsel to represent the Beneficiary in an action,
the Beneficiary will have the right to employ separate counsel (including local
counsel), and the Indemnifying Person will bear the reasonable fees, costs and
expenses of such separate counsel if (1) the use of counsel chosen by the
Indemnifying Person to represent the Beneficiary would present such counsel with
a conflict of interest, (2) the actual or potential defendants in, or targets
of, any such action include both the Beneficiary and the Indemnifying Person and
the Beneficiary has reasonably concluded that there may be legal defenses
available to it, which are different from or additional to those available to
the Indemnifying Person, (3) the Indemnifying Person has not employed counsel
reasonably satisfactory to the Beneficiary to represent the Beneficiary within a
reasonable time after notice of the institution of such action or (4) the
Indemnifying Person authorizes the Beneficiary to employ separate counsel at the
expense of the Indemnifying Person. An Indemnifying Person will not, without the
prior written consent of the Beneficiaries, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the Beneficiaries are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each Beneficiary from all liability
arising out of such claim, action, suit or proceeding. The indemnity provided
herein will survive the execution, delivery, performance and termination of this
Agreement. The parties agree to render to each other such assistance as may be
reasonably requested in order to insure the proper and adequate defense of any
such claim or proceeding.
ARTICLE X. RELATIONSHIP OF THE PARTIES
Section 10.1 NO JOINT VENTURE. The relationship between TCP and Suppliers
hereunder is intended to be that of buyer and sellers. Nothing contained herein
should be construed so as to constitute the parties as partners or joint
venturers, nor any party as the employee or agent of the other, nor the
employees or agents of any party as employees or agents of the other. No party
will have any express or implied right or authority to assume or create any
obligation on behalf of or in the name of the other party or to bind the other
party to any contract, agreement or undertaking with any third party.
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ARTICLE XI. MISCELLANEOUS
Section 11.1 NOTICES.
(a) Except as otherwise provided in this Agreement, all notices
required or permitted hereunder will be in writing and will be deemed
effectively given: (i) upon personal delivery to the party to be notified, (ii)
when sent by confirmed telex, facsimile or e-mail if sent during normal business
hours of the recipient, if not, then on the next business day, (iii) five days
after having been sent by registered or certified mail, return receipt
requested, postage prepaid, to a domestic address, (iv) ten days after having
been sent by registered or certified mail, return receipt requested, postage
prepaid, to an international address, (v) one day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt, to a domestic address or (vi) three days after
deposit with an internationally recognized overnight courier, specifying next
day delivery, with written verification of receipt, to an international address.
All communications will be addressed as follows:
If to TCP: Technical Consumer Products, Inc.
000 Xxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Chief Financial Officer
(o): (000) 000-0000
(f): (000) 000-0000
E-mail: xxxx@xxxxxxxxxx.xxx
If to Suppliers: Xx. 00 Xxx Xxxxx Xxxx, Xxxx
Xx Jing
Xxxx Xxxxx
Xxxxxxxx 000000, Xxxxx
Attention: President
(o): 00-00-0000-0000
(f): 00-00-0000-0000
E-mail: xxxxxxx@xxxxxx.xx.xx
or to such other address as the party to receive notice may designate by notice
given as provided herein.
(b) To the extent a notice required hereunder may be given orally, (i)
if to TCP, such notice will be deemed effectively given if given to TCP's Chief
Financial Officer and (ii) if to a Supplier, such notice will be deemed
effectively given if given to a Supplier's President, or, in each case, to such
other person as the party to receive notice may designate by written notice
given as provided in SECTION 11.1(a).
Section 11.2 ASSIGNMENT. Neither this Agreement nor any interest herein is
assignable by a Supplier (whether through assigning this Agreement or through a
change of control of such party) without the prior written consent of TCP and
neither this Agreement nor any interest herein is assignable by TCP (whether
through assigning this Agreement or through a change of control of such party)
without the prior written consent of the other parties, except that, without
such consent, TCP may assign this Agreement (i) to any of its direct or indirect
subsidiaries or (ii) as security for money borrowed so long as any assignment
upon foreclosure by the secured
14
party is in compliance with this SECTION 11.2. Subject to the preceding
sentence, this Agreement will be binding upon and will inure to the benefit of
the respective successors and assigns of the party.
Section 11.3 NO SUB-CONTRACTING. Notwithstanding anything in this Agreement
to the contrary, Suppliers may not sub-contract their obligations under this
Agreement without the prior written consent of TCP.
Section 11.4 GOVERNING LAW. The rights and obligations of the parties under
this Agreement will not be governed by the provisions of the 1980 United Nations
Convention on Contracts for the International Sale of Goods; rather this
Agreement will be governed by and construed in accordance with the laws of the
State of Ohio applicable to contracts made and wholly performed in such state,
without giving effect to its principles of conflicts of laws. This Agreement
will be deemed to have been entered into in Cleveland, Ohio, U.S.A., regardless
of the place or places of signing by the parties hereto or the order of their
signing. If any of the provisions of this Agreement are finally determined to be
illegal or unenforceable under the laws of the State of Ohio, then the parties
will use their best efforts to reform such provision(s) to give effect to the
fullest extent possible to the parties' intentions and to take such other
actions as may be necessary or desirable in connection therewith.
Section 11.5 ARBITRATION.
(a) Except as specifically provided otherwise, all disputes arising in
connection with this Agreement will be finally settled under the Rules of
Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with the Rules. The arbitration will be conducted in the
English language. The seat of the arbitration will be the Singapore
International Arbitration Centre in Singapore (the "SIAC").
(b) Except as otherwise set forth herein, the arbitration will be
conducted by three arbitrators. The party initiating the arbitration (the
"CLAIMANT") will appoint its arbitrator in its request for arbitration (the
"REQUEST"). The other party (the "RESPONDENT") will appoint its arbitrator
within thirty days of receipt of the Request and will notify the Claimant of
such appointment in writing. If the Respondent fails to appoint an arbitrator
within such thirty-day period, the SIAC will appoint an arbitrator on its behalf
in accordance with the rules of the SIAC. Otherwise, the two arbitrators
appointed by the parties will appoint a third arbitrator within thirty days
after the Respondent has notified the Claimant of the appointment of the
Respondent's arbitrator. When the arbitrators appointed by the Claimant and the
Respondent have appointed a third arbitrator and the third arbitrator has
accepted the appointment, the two arbitrators will promptly notify the parties
of the appointment of the third arbitrator. If the two arbitrators appointed by
the parties fail or are unable so to appoint a third arbitrator or so to notify
the parties, or if the parties agree to use a sole arbitrator, then the
appointment of the third arbitrator or the sole arbitrator, as the case may be,
will be made by the SIAC, which will promptly notify the parties of such
appointment. The third arbitrator will act as chair of any three-arbitrator
panel.
(c) The arbitral award will be in writing and, unless the parties agree
otherwise, will state the reasons upon which it is based. The award will be
final and binding on the parties. The award may include an award of costs,
including reasonable attorneys' fees and disbursements.
15
Judgment upon the award may be entered by any court having jurisdiction thereof
or having jurisdiction over the parties or their assets. Nothing contained in
this SECTION 11.5 will prevent or be construed to prevent either party from
seeking a temporary restraining order or a preliminary or permanent injunction
or any other form of interim, provisional or equitable relief in any court of
competent jurisdiction.
(d) By execution and delivery of this Agreement, each party accepts and
consents to the jurisdiction of the aforesaid arbitration panel and, solely for
purpose of the enforcement of an arbitral award under this SECTION 11.5, to the
jurisdiction of any court of competent jurisdiction, for itself and in respect
of its property, and waives in respect of both itself and its property any
defense it may have as to or based on sovereign immunity, jurisdiction, improper
venue or inconvenient forum. Each party hereby irrevocably consents to the
service of any process or other papers by the use of any of the methods and to
the addresses set for the giving of notices in SECTION 11.1. Nothing herein will
affect the right of any party to serve such process or papers in any other
manner permitted by law.
(e) Each of the parties hereto acknowledges that, in view of the
uniqueness of the transactions contemplated by this Agreement, a material breach
or material failure to comply with such party's obligations under this Agreement
to the other parties hereto would cause irreparable harm to such other parties
and such other parties would not have an adequate remedy at law for money
damages. Therefore, each of the parties hereto agrees that the parties hereto
are entitled to seek specific performance and/or injunctive relief without the
posting of bond or other security in addition to any other remedy to which it
may be entitled hereunder or at law or in equity, in any court of competent
jurisdiction against any such breach or noncompliance. All remedies provided for
herein are cumulative, and, except as provided otherwise in this Agreement, the
exercise of any particular remedy does not limit or preclude the exercise of any
other available remedy.
Section 11.6 WAIVER. No waiver of any right under this Agreement will be
binding unless agreed to in writing by the waiving party, and a waiver as to any
breach or failure to perform will not constitute a waiver as to future
performance.
Section 11.7 INTEGRATION; AMENDMENTS. This Agreement, together with the
product specifications and Purchase Orders contemplated hereby (as they may now
exist or in the future), the Licensing Agreement, and any other documents
referred to herein, constitute the entire agreement between the parties relating
to the subject matter of this Agreement and cancel and supersede any and all
prior agreements between them relative to such subject matter. This Agreement
cannot be changed or amended in whole or in part except by a writing signed by
the party to be changed.
Section 11.8 FORCE MAJEURE . If the performance of this Agreement or of any
obligation hereunder, other than to make payments of amounts due hereunder when
due, is prevented, restricted, or interfered with as a result of:
(a) fire, explosion, breakdown of machinery, plant failure, strike,
lockout, labor dispute, casualty or accident, lack or failure in whole or in
part of transportation facilities, epidemic, land slides, lightening,
earthquakes, cyclone, flood, drought, lack or failure in whole or in part of
sources of supply or labor, raw materials or power; or
16
(b) war, revolution, civil commotion, acts of public enemies, blockades
or embargo; or
(c) any law, order, proclamation, regulation, ordinance, demand or
requirement of any government or any subdivision, authority or representative of
any such government; or
(d) any other act whatsoever, whether similar or dissimilar to those
enumerated, beyond the reasonable control of a party hereto;
then the party so affected, upon giving prompt written notice to the other
parties, will be temporarily excused from such performance to the extent of such
prevention, restriction or interference; provided that the party so affected
uses its reasonably best efforts to avoid or remove such cause of
non-performance and will make up, continue and complete full performance
hereunder with the utmost dispatch whenever such cause is removed; provided,
further, that the settlement of strikes, lockouts or other labor disputes will
be entirely within the discretion of the party having the difficulty, and that
the above requirement that any force majeure be remedied by the exercise of
reasonable best efforts will not require the settlement of strikes or lockouts
by acceding to the demands of the opposing party when such course is unavoidable
in the discretion of the party having the difficulty.
Section 11.9 SEVERABILITY. The illegality, invalidity or unenforceability
of any part of this Agreement does not affect the legality, validity or
enforceability of the remainder of this Agreement.
Section 11.10 HEADINGS. The descriptive headings used in this Agreement are
for convenience only and will be disregarded in interpreting it.
Section 11.11 COUNTERPARTS AND FACSIMILE. This Agreement may be executed in
any number of counterparts, each of which will be deemed to be an original and
all of which taken together will constitute but one and the same instrument.
Transmission of facsimile copies of an executed counterpart of a signature page
of this Agreement will have the same effect as delivery of the manually executed
counterpart of this Agreement.
Section 11.12 TRANSLATION. This Agreement has been executed in the English
language. For the convenience of the parties, one or more Chinese translations
of this Agreement may be prepared. Notwithstanding the preparation or existence
of any such Chinese translations, the English language version of this Agreement
will be controlling.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each party has caused its duly authorized
representative to execute this Agreement as of the date first above written.
TCP
TECHNICAL CONSUMER PRODUCTS, INC.
By: /s/ Xxxxx Xxx
------------------------------------
Name:
Title:
SUPPLIERS
SHANGHAI XXXX XXX ELECTRONIC
ENGINEERING CO., LTD.
By: /s/ Xxx Xxxx Yuan
------------------------------------
Name: Xxx Xxxx Yuan
Title: Chairman of the Board
SHANGHAI JENSING ELECTRON
ELECTRICAL EQUIPMENT CO., LTD.
By: /s/ Xiang Yong Fan
------------------------------------
Name: Xiang Yong Fan
Title: Chairman of the Board
18
