EXHIBIT 10.18
CONFIDENTIAL TREATMENT REQUESTED
UNDER C.F.R. SECTIONS
200.80(b)(4), 200.83 AND 230.406
**** INDICATES OMITTED MATERIAL THAT
IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST FILED
SEPARATELY WITH THE COMMISSION
(KODAK POLYCHROME GRAPHICS LOGO)
CUSTOMER AGREEMENT
THIS CUSTOMER AGREEMENT (THIS "AGREEMENT") IS A LEGALLY BINDING CONTRACT
BETWEEN THE CUSTOMER DESCRIBED BELOW AND KODAK POLYCHROME GRAPHICS LLC, A
DELAWARE LIMITED LIABILITY COMPANY WITH ITS PRINCIPAL PLACE OF BUSINESS AT ▇▇▇
▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("KPG"). THIS AGREEMENT IS SUBJECT TO THE
BELOW TERMS, AS WELL AS THE ATTACHED "STANDARD TERMS AND CONDITIONS" AND ANY
ATTACHED EXHIBITS.
CONTRACT INFORMATION
Legal Name of Customer
("Customer"): Network Communications, Inc.
Customer Number: 3489598
Customer Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Customer State of
Incorporation/Organization: Georgia
Effective Date of Agreement: January 15, 2006
Term of Agreement ("Term"): Three (3) years from Effective Date
Minimum Annual Purchase ****
Requirement:
KPG Consumables to be purchased: Thermal Printing plates and
chemistries (55 gallon drums)
@ **** per square foot, direct sale
pricing (freight to customer dock
inclusive)
Rebates (optional): **** % on purchases of all plates and
SEE REBATES EXHIBIT chemistries
Lease Subsidies (optional): **** per month
SEE LEASE SUBSIDIES EXHIBIT
Loaned Equipment (optional): Description Value Serial Number
SEE LOANED EQUIPMENT EXHIBIT Not Applicable $
PLEASE SIGN BELOW TO INDICATE THAT YOU HAVE READ AND AGREE WITH THE TERMS OF
THIS AGREEMENT, INCLUDING THE ATTACHED STANDARD TERMS AND CONDITIONS AND
EXHIBITS, IF ANY.
NETWORK COMMUNICATIONS, INC. KODAK POLYCHROME GRAPHICS LLC
Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------- -----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO Title: DISTRICT SALES MGR
Date: 12/19/05 Date: 12/27/05
KPG US Customer Agreement Ver. 4.1 (01/2005)
STANDARD TERMS AND CONDITIONS
1.0 MINIMUM ANNUAL PURCHASE REQUIREMENT. Customer agrees to purchase the
minimum annual amount of Consumables set forth on the first page of this
Agreement (the "Minimum Annual Purchase Requirement") from KPG or one or
more dealers authorized by KPG to service Customer's business (each, an
"Authorized Dealer") Customer shall be solely responsible for negotiating
with its chosen Authorized Dealer(s) the invoice price of Consumables it
purchases. It shall be considered a breach of this Agreement if Customer
shall fail to achieve or, to KPG's reasonable satisfaction, demonstrate
reasonable progress toward achieving (on a quarterly basis or, if
Customer's business is seasonal, or any other reasonable basis) the Minimum
Annual Purchase Requirement
2.0 LIMITED WARRANTY: DISCLAIMER OF OTHER WARRANTIES; LIMITATION OF LIABILITY
2.1 All Consumables purchased from KPG or, if applicable, an Authorized Dealer
carry KPG's limited warranty that such Consumables will conform to the
published specifications for the period of time listed on the product
packaging, provided the Consumables are used according to such
specifications KPG makes no other warranties under this Agreement with
respect to the Consumables and/or services sold, provided or otherwise
furnished to Customer under this Agreement KPG DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
2.2 IN THE EVENT OF ANY CLAIM BY CUSTOMER, KPG'S LIABILITY UNDER THIS AGREEMENT
SHALL BE LIMITED TO REPLACEMENT OF THE CONSUMABLES THAT ARE THE SUBJECT OF
THE CLAIM OR REFUND OF THE COST OF SUCH CONSUMABLES CUSTOMER ACKNOWLEDGES
THAT REPLACEMENT OR REFUND ARE CUSTOMER'S EXCLUSIVE REMEDIES UNDER THIS
AGREEMENT IN NO EVENT SHALL KPG BE LIABLE TO CUSTOMER FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES IN CONNECTION WITH
THE CONSUMABLES OR THIS AGREEMENT
3.0 TERM. TERMINATION AND DEFAULT
3.1 TERM. Unless terminated early as provided herein, this Agreement shall
remain in effect for the Term described on the first page of this
Agreement, Customer may terminate if KPG fails to deliver comparable or
superior KPG consumables (plates and chemistries) in a timely fashion, or
if KPG fails or refuses to deliver reasonable quantities ordered by
Customer, **** increase in quantities ordered by Customer shall be presumed
to be reasonable.
3.2 In addition to the rights granted elsewhere herein or generally by
application of law or equity, KPG shall have the right to terminate this
Agreement at any time should Customer breach any of the terms and
conditions herein, become insolvent or file for bankruptcy
4.0 PAYMENT AND DELIVERY. If Customer purchases Its Consumables from an
Authorized Dealer, the payment and delivery terms established by the
Authorized Dealer shall apply if Customer purchases its Consumables from
KPG directly, the following payment and delivery terms shall apply
4.1 PAYMENT. Terms of payment for Customer's purchases of Consumables shipments
are net cash within thirty (30) days from date of the invoice. Invoices may
be submitted on partial shipments. All payments shall be in U.S. dollars
and directed to KPG at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
Failure to make timely payment of invoices covering final or partial
shipments entities KPG, or its option, to either withhold delivery of
Consumables ordered without liability or assess a late charge on past due
accounts at the rate of 18% per annum (or 1.5% per month) or the maximum
rate allowed by applicable law, if less. If delivery is withheld by KPG,
payment shall become due on the date when KPG is prepared to make shipment
Consumables held for Customer shall be at Customer's risk and expense. KPG
reserves the right to require payment in advance or satisfactory security
or guaranty that an Invoice will be promptly paid when due if at any time
Customer's financial responsibility becomes impaired or unsatisfactory to
KPG. If Customer has a dispute with KPG regarding any monies owed under
this Agreement, Customer shall pay any undisputed monies owed by Customer
and enter into good faith negotiations with KPG to resolve any such dispute
as soon as possible. Any payment made by Customer for Consumables later
found to be defective that are covered by warranty and not repaired or
replaced will be promptly refunded to Customer or, at KPG's option, may be
trented by Customer as a credit on the next KPG invoice. KPG may recover
its costs in connection with enforcing Customer's obligations hereunder
4.2 TITLE; RISK OF LOSS; TRANSPORTATION Risk of loss and title to the
Consumables shall pass to Customer at the time of delivery to Customer's
dock. All Consumables are shipped F.O.B. point of shipment KPG reserves the
right to select the carrier and point of shipment. Shipping dates are
approximate and are based upon prompt receipt of all necessary Information.
KPG will make a good faith effort to complete delivery of the Consumables
as indicated by KPG in writing, but will not be liable for failure to meet
such dates. If Customer causes or requests a shipment delay, or if KPG
ships or delivers Consumables erroneously as a result of inaccurate.
Incomplete or misleading information supplied by Customer or its agents,
storage and all other additional costs shall be borne solely by Customer
4.3 FORCE MAJEURE KPG shall have no liability for delay of delivery or failure
to perform hereunder due to causes beyond its reasonable control, including
without limitation acts of God, nets of governmental authority, fires, work
slowdowns, strikes, floods, war, riots, delays in transportation, or
shortages
5.0 GENERAL TERMS AND CONDITIONS
5.1 COMPLETE AGREEMENT; AMENDMENTS The terms and conditions of this Agreement,
including any Exhibits, shall be the final, complete and exclusive
statement of the terms of this arrangement between KPG and Customer. No
addition to deletion from or modification of any of the provisions of this
Agreement shall be binding upon the parties unless made in writing and
signed by a duly authorized representative of each party. Any such
additions, deletions or modifications must refer specifically to this
Agreement.
5.2 ASSIGNMENT; BINDING EFFECT Neither this Agreement nor any of Customer's
rights or obligations hereunder may be assigned by Customer without the
prior written consent of KPG, which consent may be withheld by KPG in its
sole discretion. Any purported assignment in violation of this Section
shall be null and void and of no force or effect KPG may assign this
Agreement without the consent of Customer. This Agreement shall be binding
upon the successors and permitted assigns of each party
5.3 CONFIDENTIALITY Customer agrees to keep the terms of this Agreement and
each party's performance hereunder confidential and will not voluntarily
disclose such terms and conditions to anyone outside the organizations of
Customer and KPG other than (a) to an Authorized Dealer, (b) as required by
law, or (c) in any communication with counsel and/or accountants for
Customer
5.4 LAW; JURISDICTION. This Agreement shall be governed by the internal laws of
the State of Connecticut. All actions brought hereunder shall be brought in
a court of competent jurisdiction located in Fairfield County. Connecticut
5.5 EFFECT OF INVALIDITY. Any term or provision hereof that is held to be
invalid, void, or unenforceable will in no way effect, impair or invalidate
the remaining terms or provisions, which will remain in full force and
effect
5.6 WAIVER No waiver by KPG of any of the terms or conditions contained herein
shall be deemed a waiver of any other or subsequent brench. All rights and
remedies available to KPG shall be cumulative and in addition to any other
rights and remedies provided
KPG US Customer Agreement Ver 4.1 (01/2005)
REBATES AND INVENTORY EXHIBIT
As consideration for Customer's purchase of the Minimum Annual Purchase
Requirement, KPG agrees to provide Customer with the rebate(s) described on the
first page of this Agreement ("Rebates"). The following terms and conditions
will apply to all Rebates
1 Customers who purchase Consumables through Authorized Dealers shall
reasonably cooperate with KPG to obtain "sell through" information from
such Authorized Dealers All invoices must bear the name of Customer.
Payment shall be made, by KPG to Customer on a quarterly basis, at minimum,
unless a bona fide dispute or other issue delays validation of the
submitted claim Payment shall be made by check and will only be paid to
Customer Payment may not be assigned or paid to a third party without the
prior written consent of KPG
2 Rebates shall be calculated based on the actual price paid by Customer for
Consumables, net of all discounts, rebates, freight charges and applicable
taxes. Any returns of Consumables purchased during each rebate period shall
be deducted from the total purchases eligible for Rebates, whether or not
such returns are received during the rebate period. If Consumables are
purchased directly from KPG, Rebates will be calculated based upon paid
invoices
3 THIS OFFER IS LIMITED TO END USERS OF KPG CONSUMABLES Consumables purchased
under this Agreement may not be resold Any credible evidence obtained by
KPG of the resale of a Consumable by Customer shall be deemed a breach of
this Agreement
4. Should Customer fail to achieve the Minimum Annual Purchase Requirement,
Customer shall be in breach of this Agreement and KPG may, at its option,
cease making payment of Rebates, and/or recover any Rebates paid where
during the applicable Rebate period, Customer did not achieve its purchase
requirements hereunder
5. In consideration for Customer's agreement to the Minimum Annual Purchase
Requirement, KPG agrees to stock **** weeks of inventory (at present ****
plates with appropriate chemistries) of KPG Consumables at KPG's Columbus,
Georgia facility. KPG further agrees to stock **** weeks inventory at NCI's
Lawrenceville, Georgia facility (at present **** plates and appropriate
chemistries). The parties shall review Customer's usage every six months.
KPG agrees to increase stock if Customer's usage either increases or is
predicted to be increased.
KPG KPG Initials
______________________ Customer Initials
KPG US Customer Agreement Ver 4.1 (01/2005)
LOANED EQUIPMENT EXHIBIT
As consideration for Customer's purchase of the Minimum Annual Purchase
Requirement, KPG agrees to provide Customer with the loaned equipment described
on the first page of this Agreement ("Equipment") during the Term The following
terms and conditions will apply to oil Equipment For purposes of this Loaned
Equipment Exhibit, "KPG" shall refer to Kodak Polychrome Graphics LLC and its
subsidiaries
1. Customer acknowledges that the Equipment has the value set forth on the
first page of this Agreement. Purchase levels shall be reviewed on a
quarterly basis by KPG throughout the Term of this Agreement and Customer
may be charged all or a portion of the value of the Equipment if Customer
fails to meet or make reasonable progress toward achieving the Minimum
Annual Purchase Requirement.
2. Customer shall be responsible for the maintenance and services costs (parts
and labor) for the Equipment and for complying with all applicable safety
laws, rules and regulations Customer shall secure any and all licenses or
permits required for Customer's use of the Equipment Customer specifically
agrees that for so long as the Equipment is in Customer's possession, it
will maintain the Equipment in good condition, Will use exclusively KPG
Consumables with the Equipment (including for testing purposes), and will
maintain, at its expense, adequate insurance on the Equipment with
reputable insurers, which insurance shall name "Kodak Polychrome Graphics
LLC and its subsidiaries" as loss payee and additional insured, and shall
contain an appropriate waiver of subrogation in favor of KPG, its
subsidiaries, successors and assigns If Customer fails to use exclusively
KPG Consumables with the Equipment, any warranty on any KPG Consumables
used on the Equipment thereafter shall be immediately null and void and of
no force or effect. Customer agrees that it will not in any way modify or
alter the Equipment, install any unauthorized software on the Equipment, or
attach any unauthorized equipment to the Equipment without the prior
written consent or instruction of KPG. Customer shall permit KPG, its
agents and employees to have access to Customer's premises during normal
business hours on reasonable advance notice for purposes of inspecting the
Equipment and ensuring Customer's compliance with the terms of this Loaned
Equipment Exhibit Customer shall bear all risk of loss, theft, damage to
and destruction of the Equipment for so long as the Equipment is in
Customer's possession If the Equipment is lost, stolen or damaged, Customer
shall immediately notify KPG Customer shall defend, indemnify and hold
harmless KPG from any claims and liabilities of any kind arising out of the
operation or possession of the Equipment while in Customer's possession
Customer may not remove any item of Equipment from the location to which
KPG delivers it without the prior written consent of KPG.
3. For the duration of this Agreement, KPG assigns to Customer its rights
under any warranties provided by the manufacturer(s) of the Equipment KPG
makes no warranty under this Agreement with respect to the Equipment
loaned, given or otherwise furnished or provided to Customer under this
Agreement KPG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR
ORAL, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE
4. IN NO EVENT SHALL KPG BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, AND/OR PUNITIVE DAMAGES IN CONNECTION
WITH THE EQUIPMENT LOANED, GIVEN OR OTHERWISE FURNISHED OR PROVIDED TO
CUSTOMER UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT
OF THE NEGLIGENCE OR OTHER FAULT OF KPG AND REGARDLESS OF WHETHER SUCH
DAMAGES ARE BASED ON TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER CAUSE OF
ACTION
5. Customer shall not pledge, mortgage, transfer, assign or in any way
encumber the Equipment or any part thereof or attempt to do any of the
foregoing If any lien or security interest shall be filed against the
Equipment (except by KPG), Customer, at its cost, shall cause the same to
be promptly discharged.
6. Although Customer acknowledges that KPG retains all right, title and
interest in and to the Equipment, Customer hereby grants to KPG a security
interest In die Equipment to the extent necessary to fully protect KPG's
right, title and interest in the Equipment. KPG shall be entitled to all
rights and remedies in relation to the Equipment that are granted to a
secured party under applicable law Customer acknowledges that KPG intends
to file, for informational purposes only, UCC-I financing statements
covering the Equipment (the "Financing Statements"). Customer hereby
authorizes KPG to file the Financing Statements and any continuation
statements or amendments without the signature of Customer where permitted
by law If filing without Customer's signature is not permitted by law,
Customer agrees to sign the Financing Statements at KPG's request A
photocopy or other reproduction of this Agreement or any Financing
Statement covering the Equipment shall be sufficient as a financing
statement where permitted by law Customer agrees that on request it shall
provide KPG with written proof satisfactory to KPG of Customer's complete
and accurate official name (including capitalization and punctuation), the
state in which Customer was incorporated or organized, and Customer's
organization identification number (if applicable) Customer shall defend
and indemnify KPG from and against any claims to the Equipment adverse to
the Interest of KPG in the Equipment.
7. Should Customer fail to achieve the Minimum Annual Purchase Requirement,
Customer shall be in breach of this Agreement, and KPG shall be allowed to
enter upon the premises of Customer during reasonable business hours upon
prior written notice and, at its option, remove the Equipment from
Customer's premises In such event, or in the event Customer fails to
redeliver or allow removal of the Equipment upon termination of this
Agreement, Customer shall reimburse all costs incurred by KPG in connection
with obtaining repossession of the Equipment, including without limitation
costs of removal, transportation and storage of such Equipment, together
with an administration fee equal to $500 per day of delay in allowing
redelivery, which amount shall be deemed liquidated damages and not a
penalty
KPG KPG Initials
___________ Customer Initials
KPG US CUSTOMER Agreement Ver 4.1 (01/2005)
