Confidential portions of this
document have been omitted
and filed separately with the
Securities and Exchange
Commission
UNITED STATES EXCLUSIVE SUPPLY AGREEMENT
This Agreement dated March 17, 1997, is made by and between The Xxxxxxx
Corporation, a Nevada corporation with offices at 00 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxxx, XX. 00000 (hereafter referred to as "Xxxxxxx"), and
________________.
Xxxxxx Xxx, III ("Xxx") is the owner of a certain use patent for the
use of zinc gluconate to reduce the duration of the common cold (Patent RE
33,465). Xxxx Xxxxxxx ("Xxxxxxx") is the owner of certain patents for flavoring
for zinc supplements for oral use (Patent 4,684,528 and 4,758,439). Xxx and
Xxxxxxx granted to Xxxxxxx the exclusive worldwide right to manufacture,
distribute and sell zinc gluconate lozenges pursuant to certain license
agreements with Xxx dated August 24, 1996 and a certain Exclusive Representation
and Distribution Agreement with Xxxxxxx dated May 4, 1992.
________ has demonstrated that it is capable of producing the Product,
as defined herein, utilizing the product formulation. including the Patents, all
as more particularly set forth in Exhibit A hereto (collectively, the "Formula")
. (Lozenges produced pursuant to the Formula and any revision thereto, are
referred to herein individually as the "Lozenge" and collectively as the
"Product" or "Lozenges".) The Product is currently marketed and sold by Xxxxxxx
under the trademark COLD-EEZE (the "Trademark") . The Trademark is owned by
Xxxxxxx. Xxxxxxx also plans to market and sell the Lozenges in bulk, or in
packaging which may not use the Trademark.
Xxxxxxx desires __________ to produce its total United States
requirements for the Product and ________ desires to undertake this requirement
of this Agreement in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, Xxxxxxx and __________, in consideration of the mutual
covenants and conditions hereinafter set forth, and intending to be legally
bound, hereby agree as follows:
1. INCORPORATION OF RECITALS AND EXHIBITS. The above recitals and each
Exhibit identified in this Agreement are made a part of this Agreement by such
reference.
2. SERVICES AND SPECIFICATIONS. __________ shall manufacture the
Product in accordance with the Formula and in
accordance with applicable laws, rules and regulations, Good Manufacturing
Practices are promulgated by the U.S. Food and Drug Administration ("FDA") from
time to time prevailing in the industry (collectively, the "Specifications").
3. EXCLUSIVE UNITED STATES SUPPLY. To enable ________ to manufacture
the Products pursuant to the terms and conditions of this Agreement, Xxxxxxx
grants to _______ a United States exclusivity to manufacture the Product using
the Formula, which includes the Patents, as defined in the following sentence.
The Patents shall include the patents listed in Exhibit A, including without
limitation all reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof, and any other pending and future patents
necessary or useful to manufacture the Product (collectively called the
"Patents"). In the event that ________ is unable to meet the manufacturing
demands of Xxxxxxx and with the written permission of Xxxxxxx, __________ shall
have the right to appoint approved third parties to manufacture the Product in
accordance with the Formula; provided said approved third party executes a
confidentiality agreement as set forth in paragraph 10, _________ shall have the
responsibility of such approved parties, as if ________ was the manufacturer of
the Product.
4. PRODUCTION. Because the Product is a new product, Xxxxxxx has not
yet accurately forecast the number of Lozenges that it will require for the
calendar year 1997. In addition, during calendar 1997, _________ will be in the
process of transitioning other business and expanding its production
capabilities to exclusively produce the Product. For these reasons, _______
cannot guarantee that it will be able to supply all of Xxxxxxx'x total
requirements in 1997. Therefore, for the calendar year 1997, ______ shall have
met its obligations under this Agreement if _________ uses its best efforts to
supply all of Xxxxxxx'x requirements.
Beginning in January of 1998, ________ agrees to supply all of
Xxxxxxx'x requirements for Product provided that throughout the term of this
Agreement, Xxxxxxx shall provide ________ with estimated annual forecasts and
quarterly rolling forecasts which will allow ________ to plan for Xxxxxxx'x
production and inventory requirements. Xxxxxxx'x forecasts shall be based on a
good faith analysis of the market for the Product as is ascertained from prior
years sales. Xxxxxxx agrees that ________ shall have met its obligations under
this Agreement if ___________ meets Xxxxxxx'x quarterly forecasts. Xxxxxxx shall
provide its forecast for 1998 to _________ on or before December 1, 1997.
Pursuant to paragraph 3 of this Agreement, in order to meet Xxxxxxx'x
requirements __________ may contract with approved third parties to manufacture
the Product. Within the United States marketplace, Xxxxxxx shall not produce
itself, or acquire from an
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approved third party, any Product during the term of this Agreement.
5. ORDERS FOR PRODUCT: INVENTORY. Product shall be held in inventory in
________'s warehouse located at __________________, pending receipt of orders
and shipping instructions from Xxxxxxx. Upon receipt of orders from Xxxxxxx,
____________ shall pack and ship Product in accordance with such order and
shipping instructions. All shipping costs shall be borne by Xxxxxxx.
____________ shall provide Xxxxxxx with such shipping records attached to a copy
of the packing list/invoice identifying the customer, P/O number, carrier and
destination, along with any other relevant information and/or documentation as
Xxxxxxx shall reasonably request to determine compliance with shipping
instructions.
Within sixty (60) days of execution of this Agreement, __________ shall
notify Xxxxxxx of the maximum number of units of Packaged Product, as defined in
paragraph 15 which it can store in inventory at its current warehouse. In no
event may Xxxxxxx require ______________ to maintain inventory in excess of such
number. Should it become necessary or desirable to maintain inventory levels in
excess of such number, __________ shall, within such time period as is
reasonable under the circumstances, make arrangements for additional warehouse
space, the costs of which shall be borne by Xxxxxxx.
6. XXXXXXX'X RESPONSIBILITIES. Xxxxxxx shall be responsible for all
advertising, marketing, sales and delivery of the Product. Throughout the term
of this Agreement Xxxxxxx, at its sole cost and expense, shall use its best
efforts to diligently and continuously promote, develop and maintain a
substantial, permanent and expanding business for the Product.
7. PAYMENT. Xxxxxxx shall pay __________ according to the payment
schedule set forth on Exhibit B. The parties acknowledge that the number of
Lozenges per package and the type of packaging required by Xxxxxxx may vary, as
more fully set forth in Exhibit B. The term "Unit" as used herein shall mean any
one of the Product items listed on Exhibit B. ______________ shall submit daily
invoices to Xxxxxxx identifying the number of Units of each Product items
produced. In the event _____________ contracts with approved third parties to
produce the Product, ______________ shall include on the daily invoices all
Product items produced and shipped by such parties during the preceding week.
Payment for Product produced by approved third parties shall be made by Xxxxxxx
to __________ in accordance with the payment schedule set forth on Exhibit B.
___________ shall be responsible for paying such approved third parties out of
payments from Xxxxxxx. All invoices from ___________ shall be due and payable by
Xxxxxxx in full within thirty (30) business days from the date of each invoice,
subject to a two percent reduction for payments made within ten (10) days.
-3-
8. PRICE ADJUSTMENT . Within 60 days of execution of this Agreement,
__________ shall provide Xxxxxxx with a detailed list of __________'s current
cost for ingredients and other supplies, (the "Original Procurement Cost"). In
the event _________'s actual costs increase with reference to the Original
Procurement Cost, then ________ shall provide Xxxxxxx detailed data concerning
its actual costs of procuring the ingredients and other supplies. The per Unit
price payable to ___________ shall be increased by the total per Unit cost
increase of all ingredients and other supplies. Such price adjustment shall be
effective with respect to all invoices issued to Xxxxxxx thirty (30) days after
notice of the procurement cost change is received by Xxxxxxx. In addition, in
the event _______________'s total production costs increase by more than ten
percent (10%) over ____________'s total production costs as of the date of this
Agreement, the parties shall negotiate, in good faith, and mutually agree upon
an increase in the price of the Product. In the event that the parties cannot
agree to such an increase, ___________ shall have the right to seek arbitration
and both parties will be subject to its findings. In the event of a market
driven decrease in Xxxxxxx'x wholesale prices, Xxxxxxx shall have the right to
negotiate a reduced manufacturing cost from ___________. In the event that the
parties cannot agree to such a decrease, Xxxxxxx shall have the right to seek
arbitration and both parties will be subject to its findings.
9. RISK OF LOSS; INSURANCE. Risk of loss to Product passes to Xxxxxxx
when the manufacturing process is completed. Xxxxxxx shall be responsible for
insuring all Product in the care, custody or control of ________ and any other
suppliers of Product, against loss or damage from perils covered by an "all
risk" property insurance policy in the amount of the market value of such
Product. Additionally, Xxxxxxx shall carry and maintain, at all times and at
Xxxxxxx'x sole cost and expense, (a) Commercial General Liability coverage,
including Product/Completed Operations, in the amounts of at least One Million
Dollars ($1,000,000.00) any one occurrence and Two Million Dollars
($2,000,000.00) Products/Completed Operation Aggregate. Two Million Dollars
($2,000,000.00) policy General Aggregate; (b) property coverage for
comprehensive perils to protect the interests of Xxxxxxx and _________ as
respects property of Xxxxxxx in the care, custody and control of __________ to a
limit of at least Ten Million Dollars ($10,000,000.00). __________ and any other
suppliers of Product shall be named as an additional named insured in the
policies described in (a) and (b) above. Such policies shall be carried with
insurance companies acceptable to ________ and each shall provide that its terms
and conditions shall not be altered, cancelled or changed until ten (10) days
after termination or cancellation of this Agreement. A certificate of such
insurance coverage shall be furnished to ____________.
__________ shall, at all times and at _________'s sole cost and
expense, carry and maintain (a) Commercial General Liability coverage, including
Product/Completed Operations, in the amounts of
-4-
at least One Million Dollars ($1,000,000.00) any one occurrence and Two Million
Dollars ($2,000,000.00) Products/Completed Operation Aggregate. Two Million
Dollars ($2,000,000.00) policy General Aggregate; (b) property coverage for
comprehensive perils to protect the interests of Xxxxxxx and ___________ as
respects property of Xxxxxxx in the care, custody and control of _________ to a
limit of at least Ten Million Dollars ($10,000,000.00) and (c) such statutory
worker's compensation insurance as is required by local law for __________'s
employees engaged in providing services hereunder. Xxxxxxx shall be named as an
"additional insured" upon ____________'s Commercial General Liability policy
described in (a) above and as "loss Payee" under the __________ Property policy
described in (b) above. Such policies shall be carried with insurance companies
acceptable to Xxxxxxx and each shall provide that its terms and conditions shall
not be altered, cancelled or changed until ten (10) days after termination or
cancellation of this Agreement. A certificate of such insurance coverage shall
be furnished to Xxxxxxx.
10. CONFIDENTIALITY. All business and technical information, whether in
written or oral form and including, but not limited to the Formula, which
Xxxxxxx may disclose to ________, or to any employee, agent or representative of
__________, shall be received and retained by ___________ and its employees,
agents and representatives as strictly confidential and, except as provided for
herein, may not be disclosed to any third party. __________ shall only use such
information in connection with the production and packaging of Product, and
shall not disclose the same to any person not having a need to know. _________
shall inform each of its officers, employees or agents working with or otherwise
having access to such information of his or her obligation to maintain the
confidentiality of Xxxxxxx'x confidential and proprietary information. Nothing
in this paragraph shall prohibit ________ from disclosing such information to
any approved third party who is manufacturing the Product for _______, provided
the approved third party has entered into a written confidentiality agreement
with Xxxxxxx.
All business and technical information, whether in written or oral form
and including, but not limited to, packaging, manufacturing processes, quality
control standards, coding systems and all business information such as supplier
lists, costs and the like, which __________ may disclose to Xxxxxxx, or to any
employee, agent or representative of Xxxxxxx, shall be received and retained by
Xxxxxxx and its employees, agents and representatives as strictly confidential
and, except as provided for herein, may not be disclosed to any third party.
Xxxxxxx shall not disclose the same to any person not having a need to know.
Xxxxxxx shall inform each of its officers, employees or agents working with or
otherwise having access to such information of his or her obligation to maintain
the confidentiality of __________ is confidential and proprietary information.
-5-
Neither party shall have an obligation of confidentiality with respect
to information which:
(a) was publicly available at the time of receipt from the
disclosing party or subsequently becomes publicly available without
breach of an obligation assumed or duty owed by the nondisclosing
party; or
(b) was known and can be shown to have been known by the
nondisclosing party at the time of receipt from the disclosing party
and was not acquired on a confidential basis; or
(c) becomes known to the nondisclosing party on a non-
confidential basis through a third party whose own acquisition and
disclosure were independent of the nondisclosing party, not in breach
of any obligation hereunder and not on a confidential basis; or
(d) is required by law, after prior notice is given to the
disclosing party; or
(e) is approved for disclosure by the disclosing party in
writing.
11. RETURN OF DOCUMENTS, ETC. All originals and copies (in whatever
format) of written business and technical information and extracts thereof
identified or reasonably identifiable as confidential or proprietary to Xxxxxxx
or __________ shall be and remain the exclusive property of the disclosing party
at all times, and shall be returned to the disclosing party upon the termination
of this Agreement or upon the disclosing party's request.
12. __________'S REPRESENTATIONS. ___________ represents and warrants
that as of the date the Product is produced and packed by __________, such
Product will meet the Specifications.
13. FORMULA OWNERSHIP. Xxxxxxx represents and warrants that it is the
owner of the worldwide manufacturing, distribution and marketing rights to the
Formula and has the authority to grant to __________ the right to use the same
in the manufacture of the Product for Xxxxxxx. Xxxxxxx has taken, or shall take
such actions as are necessary to secure and protect the right to sell the
Product in the United States.
14. APPROVED THIRD PARTY MANUFACTURING. In accordance with paragraph 3
of this Agreement, ____________ shall have the right to contract with approved
third parties to manufacture the Product for Xxxxxxx, contingent upon approved
third parties fulfilling paragraph 10 of this Agreement.
15. PACKAGING. __________ shall be responsible for packaging the
Product, and Xxxxxxx agrees that ____________ may contract with
-6-
approved third party suppliers for such packaging. The packaging material used
with the Product, as well as every use of any Xxxxxxx trademarks, shall be
subject to the prior written approval of Xxxxxxx. Xxxxxxx hereby approves the
packaging, including the use of the Trademarks on such packaging, currently in
use (the "Packaged Product"). ____________ shall not adhere any label or other
printed material on Product which has not received prior written approval by
Xxxxxxx. ___________ agrees that it shall include such trademark and copyright
notices on the Product packaging as Xxxxxxx may designate.
16. INDEMNITY BY XXXXXXX. In the event of (i) consumer, customer,
governmental agency or other third party complaints, demands, claims or legal
actions alleging illness, injury, death or damage as a result of the consumption
or use of any Product except for any claim arising from ____________'s failure
to manufacture the Product according to the Specifications, (ii) claims or legal
action alleging patent or copyright infringement, violations of any patent
rights or copyrights or unfair competition or trade secrets or trademarks or
other rights of any approved third party which arise out of or relate to the
Product, Formula or packaging; or (iii) any other claim arising out of or
related to _________'s production, storage or use of the Product or Formula,
except to the extent attributable to ___________, Xxxxxxx shall indemnify,
defend and hold __________ harmless from and against any and all liability, loss
or damage (including lost profits), cost or expense (including court costs and
reasonable attorney's fees), arising out of, resulting from or in any way
connected with such complaint, demand, claim, or legal action. Xxxxxxx shall
assume full responsibility for, and pay the expense of, the investigation,
defense, legal fees, settlement costs and payment of all such complaints,
demands, claims and legal actions, provided that ________ may, at its expense,
participate in any legal action through counsel of its own choice. ___________
shall promptly notify Xxxxxxx of any such complaint, demand, claim or legal
action and cooperate in the defense thereof.
17. INDEMNITY BY __________. In the event of consumer, customer,
governmental agency, or third party complaints, demands, claims or legal actions
alleging illness, injury, death or damage as a result of the consumption or use
of any Product arising from ________'s failure to manufacture Product according
to Specifications, ____________ shall indemnify, defend and hold Xxxxxxx
harmless from and against any and all liability, loss or damage (including lost
profits), cost or expense (including court costs and reasonable attorney's
fees), arising out of, resulting from or in any way connected with such
complaint, demand, or claim. ____________ shall assume full responsibility for,
and pay the expense of, the investigation, defense, legal fees, settlement costs
and payment of all such complaints, demands, claims and legal actions, provided
that Xxxxxxx may, at its expense, participate in any legal action through
counsel of its own choice. Xxxxxxx shall
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promptly notify _____________ of any such complaint, demand, claim or legal
action and cooperate fully in the defense thereof.
18. BOOKS AND RECORDS. During the term of this Agreement, each party
shall prepare, maintain and retain complete and accurate books and records
relating to the respective party's obligation under this Agreement, including
the production, storage, packaging, marketing, sale, purchase and distribution
of the Product. All such books and records prepared, maintained or retained
pursuant to this Agreement shall be made available to the other party for
inspection upon reasonable notice and during regular business hours.
19. INSPECTION BY XXXXXXX . At any time while this Agreement remains in
effect, Xxxxxxx shall have the right to send one or more of its authorized
employees or representatives to observe and inspect, upon reasonable notice and
during scheduled business and manufacturing hours, the Product manufacturing and
packaging process, __________'s plant and any other facilities utilized in
providing the services, including the inventory and storage of Product.
20. TERM. This Agreement shall be effective as of the date set forth in
the first paragraph of this Agreement and shall continue in effect for a period
of three years, with yearly renewal thereafter, unless terminated by either
party upon two (2) years written notice.
21. TERMINATION RIGHT. Either party may also terminate this Agreement
in the following circumstances:
(a) Where the other party has failed to perform or meet any
material term or condition hereof and has failed to correct the same
within thirty (30) days after written notice of such failure by the
non-breaching party, or if the breach is incapable of cure within
thirty (30) days after notice, if the breaching party has not commenced
efforts to correct the same within the thirty (30) day period; or
(b) If the other party files a petition in bankruptcy or is
adjudicated a bankrupt, or if a petition in bankruptcy is filed against
it which is not dismissed within thirty (30) days, or if such party
becomes insolvent, or makes an assignment for the benefit of creditors,
or an arrangement pursuant to any bankruptcy law, or discontinues its
business or if a receiver is appointed who is not discharged within
thirty (30) days.
22. EFFECT OF TERMINATION. Upon termination of this Agreement, the
rights granted hereunder shall terminate and _______ shall discontinue all use
of the Formula. Also, upon termination, __________ shall either: 1) deliver all
completed Product to a
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location designated by Xxxxxxx at Xxxxxxx'x expense, or 2) make the Product
available for pick-up by Xxxxxxx. In either case, Xxxxxxx shall pay ___________
for such completed Product.
23. FORCE MAJEURE. Either party shall be excused from performance and
liability under this Agreement to the extent that such performance is prevented
by an Act of God, strike or other labor dispute, war condition, civil disorder,
embargo, fire, flood, accident or any other casualty beyond the reasonable
control of such party.
24. NONCOMPETITION. __________ agrees that, while this Agreement
remains in effect and until termination of the Patents, it will not manufacture,
process, or package any zinc-based lozenges, provided Xxxxxxx purchases all of
its United States requirements from ___________ or approved third parties.
Beginning on or before January 1, 1998, while this Agreement remains in effect
_____________ shall not produce any other zinc lozenges for any third party,
provided Xxxxxxx purchases all of its United States requirements from
_____________ or approved third parties.
25. RIGHT OF FIRST OFFER. Xxxxxxx shall have a right of first offer to
purchase ____________'s business as set forth herein. ____________ shall give
Xxxxxxx written notice of ________'s election to offer its entire business for
sale to third parties. Xxxxxxx shall have thirty (30) business days after the
receipt of said notice (the "Offer Period") to make a written offer (the
"Offer") to ____________ which shall set forth the basic terms and conditions
upon which Xxxxxxx would be willing to enter into a binding agreement for the
purchase of ___________'s business. Upon ___________'s acceptance of the Offer,
the parties shall negotiate in good faith for a period of not more than sixty
(60) business days after such acceptance (the "Negotiation Period") in order to
enter into a binding agreement for the sale of the business to Xxxxxxx in
accordance with the terms and conditions of the accepted Offer. The right of
first offer shall automatically expire and terminate upon the earlier of: (i)
Xxxxxxx'x failure to make an Offer within the Offer Period; (ii) ____________'s
good faith rejection of the offer within the Offer period; or (iii) the failure
or inability of Xxxxxxx and __________ in good faith to enter into a binding
purchase agreement within the Negotiation Period. Upon the expiration of the
Right of First Offer, ________ shall be permitted to offer the business for sale
to any third party and neither Xxxxxxx nor ___________ shall have any further
rights or obligations under the terms of this paragraph, provided that the
manufacture of the Products by a purchasing party shall require Xxxxxxx'x
permission and approval for such manufacture and such permission and approval
shall not unreasonably be withheld.
26. RELATIONSHIP. The relationship between Xxxxxxx and ________ is that
of independent contractor. This Agreement shall not be construed as creating
between Xxxxxxx and __________ the
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relationship of principal and agent, joint venturers, co-partners or any other
similar relationship, nor shall _________ be considered in any sense an
affiliate or subsidiary of Xxxxxxx. Neither party shall have any authority to
create or assume, in the other's name, any obligation, express or implied, or to
act or purport to act as the other's agent or legally empowered representative
for any purpose whatsoever. Neither party shall be liable to any third party in
any way for any engagement, obligation, commitment, contract, representation,
transaction, act or omission of the other except as expressly provided herein.
27. SEVERABILITY. In the event that any provision of this Agreement is
declared invalid or contrary to any law, rule, regulation or public policy of
the United States or any state, all of the remaining provisions hereof shall
continue in full force and effect.
28. SURVIVAL OF REPRESENTATIONS. The provisions set forth in paragraphs
7, 10, 11, 16, 17, 24, and 19 of this Agreement, as well as all of the
representations, warranties, indemnities and guarantees of ______________ and
Xxxxxxx contained in this Agreement, shall survive the termination or
cancellation of this Agreement.
29. GOVERNING LAW. This Agreement shall in all respects be governed by
the laws of the Commonwealth of Pennsylvania. The parties further specifically
agree that any action or proceeding arising out of or in connection with this
Agreement shall be venued in the Federal District Court for the Middle District
of Pennsylvania sitting in Harrisburg, or, if appropriate, the Court of Common
Pleas for Dauphin County, Pennsylvania, and hereby consent to the jurisdiction
of each of said courts or if appropriate, the Court of Common Pleas for Bucks
County, Pennsylvania and hereby consent to the jurisdiction of each of said
courts.
30. NOTICES. Any notice or other communication required or permitted to
be given pursuant to this Agreement shall be deemed to have been sufficiently
given if in writing and delivered by hand or by telefax transmission (with a
mandatory written confirmation, via a recognized overnight courier, as provided
below) or sent by registered or certified mail (postage prepaid) or by express
courier or express mail, fees prepaid, addressed as indicated below:
(a) If to Xxxxxxx:
The Xxxxxxx Corporation
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX. 00000
ATTN: Xxxxxxx X. Xxxxxxxx
Telephone No.: (000)000-0000
Fax No. (000)000-0000
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With a copy to:
Xxxxxx X. X. XxxXxxxx, Esquire
Xxxxxxxx and Xxxx, P.C.
00 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, XX. 18901-4350
Telephone No.: (000)000-0000
Fax No. (000) 000-0000
(b) If to _______:
----------------------
----------------------
ATTN: ________________
Telephone No.: ____________
Fax No. ____________
With a copy to:
------------------------
------------------------
------------------------
Telephone No.: ____________
Fax No. : ____________
Either party may, by notice as aforesaid, designate a different address for
notices or other communications intended for it.
Any notice which is delivered in the manner provided herein (provided
mandatory confirmation copies are sent) shall be deemed to have been duly given
to the party to whom it is directed upon actual receipt by such party.
31. ASSIGNMENT. Neither party shall assign or transfer this Agreement
or their rights or obligations hereunder without the prior written consent of
the other party, which consent shall not be unreasonably withheld.
32. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties relating to the subject matter of this
Agreement and supersedes and cancels any and all previous contracts, irrevocable
corporate purchase orders, agreements or understandings between the parties with
respect thereto. This Agreement may not be altered or amended except by a
written instrument executed by duly authorized representatives of Xxxxxxx and
___________. Unless expressly agreed by both parties, this
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Agreement shall not be altered or amended by any purchase order issued by
Xxxxxxx. No waiver hereunder shall be asserted or effective except upon a
written instrument executed by the party against whom the waiver is asserted.
33. HEADINGS. The headings contained herein are inserted for
convenience only and shall not be deemed to have any substantive meaning.
34. NO WAIVER. Any failure to either party to notify the other of a
violation, default or breach of this Agreement or to terminate this Agreement on
account thereof shall not constitute a waiver of such violation, default or
breach, or a consent, acquiescence or waiver of any later violation, default or
breach, whether of the same or a different character.
35. AUTHORIZATION: ACCEPTANCE. Each party hereto warrants and
represents to the other that all necessary corporate actions and approvals have
been taken and given, and that upon execution by its duly authorized
representative, this Agreement shall be a binding obligation of such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the day and year first
above written.
The Xxxxxxx Corporation
By: /s/ XXX X. XXXXXXX
------------------------
Name: Xxx X. Xxxxxxx
Title: President
_____________, Inc.
By: /S/_____________
Name: ________________
Title: _______________
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XXXXXXX X-- Xxxxxxxxxxxxx Xxxxx
XXXXXXX
-00-
XXXXXXX X-- Price Schedule
OMITTED
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