Exhibit 10.1
PRODUCT PURCHASE AGREEMENT
by and between
XXXXX CONTAINER CORP.
and
TASTE OF ARUBA (US), INC.
Dated as of April 1, 2010
THIS PRODUCT PURCHASE AGREEMENT ("Agreement"), effective as of April 1, 2010
(the "Effective Date"), is by and between Xxxxx Container Corp. ("Seller"), and
Taste of Aruba (US), Inc. ("Buyer").
1. TERM OF THE AGREEMENT
The term of this Agreement shall commence on the Effective Date and shall expire
on December 31, 2015, unless earlier terminated in accordance with the
provisions hereof (the "Term"). The Term will automatically extend for
additional one (1) year periods unless either party gives at least three (3)
months' written notice prior to the then-effective expiration date of its
intention not to extend this Agreement. The rights and obligations of the
parties which by their nature would continue beyond the termination,
cancellation, or expiration of this Agreement, shall survive such termination,
cancellation or expiration.
2. SCOPE OF THE AGREEMENT
During the term of this Agreement, Buyer agrees to purchase from Seller and
Seller agrees to sell to Buyer the products listed on Attachment A, as may be
supplemented by mutual written agreement of the parties from time to time, and
other products that may become the subject of an Order accepted by Seller during
the term of this Agreement (the "Products"). All quotations issued by Seller and
all Orders submitted by Buyer with respect to the Products shall be deemed to
incorporate and be subject to the terms and conditions of this Agreement. All
other terms and conditions contained on any Order form or correspondence
originated by either party are null and void and without effect notwithstanding
acceptance of the Order by Seller. Either party's failure to object to
provisions contained in any communication from the other party shall not be
deemed a waiver of the provisions of this Agreement. When necessary for purposes
of applying different provisions, Product may also be referred to as "Custom
Product," which is Product that is sold only to Buyer and to any Buyer
Subcontractor; or "Standard Product," which is Product that is generally offered
by Seller to the general market. Buyer reserves the right to use contract
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manufacturers in the production and/or third party logistics or distributor
partners ("Buyer Subcontractors") in the provisioning of Buyer's products which
utilize Products covered under this Agreement, subject to Seller's approval
which shall not be unreasonably withheld. As a result, Buyer may authorize in
writing to Seller and, if acceptable, Seller shall agree in writing to sell
and/or ship Products to such approved Buyer Subcontractors involved in the
production and provisioning of Buyer's Products. Any Order issued outside of
this Agreement by a Buyer Subcontractor will be a contractual relationship
between Seller and such Subcontractor, and Seller shall look only to such
Subcontractor for performance of its respective obligations under such Order
unless otherwise agreed in writing. In addition, any Buyer Subcontractor making
a purchase of Product hereunder will be required to furnish to Seller a letter
or other written document in which the Buyer Subcontractor acknowledges and
agrees that (i) it shall comply with, and all purchases by the Buyer
Subcontractor will be governed by, all applicable terms and conditions of this
Agreement shown above as though it were Buyer, (ii) it shall have no right to
purchase Products or to purchase volumes in excess of Buyer's authorization to
the Buyer Subcontractor, and (iii) it shall use and/or sell Product only to
Buyer or for Buyer's account.
3. MINIMUM PURCHASE COMMITMENT
For the period commencing on April 1, 2010 through December 31, 2015, Buyer
agrees to a Total Minimum Purchase Commitment of Products from Seller that
equals fifty million dollars ($50,000,000). An Annual Minimum Purchase
Commitment will be agreed to by the Buyer and Seller prior to January 1st of
each calendar year during the term of this Agreement.
The above Total Minimum Purchase Commitment is based on purchases of 500 ml (23
gram) preforms at $0.0925 per preform and is subject to adjustment each 90 days
after the first purchase. It is understood between the parties that the cost of
raw materials can change dramatically and that product prices will change
accordingly.
Upon agreement, Buyer is bound to the Annual Minimum Purchase Commitment unless
revised in writing between the Buyer and Seller, or the Product is discontinued
and the Buyer follows the terms as defined in Section 16.
4. PURCHASE ORDERS
Purchase orders ("Orders") shall be placed under this Agreement from time to
time by Buyer. All purchases and sales under this Agreement shall be subject
only to the terms and conditions hereof. In the event that the terms of any
Order, Order acknowledgment, invoice, confirmation or similar document conflict
with, or are additional to, the terms of this Agreement, the terms of this
Agreement alone shall apply and shall govern regardless of execution of such
document by one or both parties. Notwithstanding, the parties may agree to
negotiate non-preprinted terms which shall be effective if executed in writing
by both parties. Seller shall accept and acknowledge in writing (or
electronically) all Orders submitted by Buyer within five (5) working days after
receipt thereof or indicate why an Order cannot be accepted. Each acknowledgment
shall include a shipping date for the Products ordered in the Order. "Working
day or business day" shall mean a regular weekday on which Seller and Buyer and
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their respective subcontractors are open for business. Delivery shall be in
accordance with accepted Orders. Minimum order requirements shall be as set
forth on Attachments 1 and 2.
Seller agrees to meet all Orders provided by Buyer including those beyond the
Annual Commitment. Buyer must provide Seller ninety (90) days prior written
notice if they foresee Orders beyond the Annual Commitment of each Year.
5. PRICING
Seller shall sell Products to Buyer at the prices listed in Attachment A.
6. DELIVERY
Shipment will be made in a manner determined by Buyer. Seller is only
responsible for freight to Port of Shipment, and shall not be responsible for
duties, taxes or other charges in Buyer's Home Country.
7. TITLE AND RISK OF LOSS
Unless otherwise agreed to by the parties, title and risk of loss or damage to
the Product shall pass to Buyer at the xxxx Xxxxxx delivers possession of the
Product to the Buyer at the Port of Shipment.
8. TAXES PAYABLE BY BUYER
Buyer shall bear all taxes, duties, levies and similar charges (and any related
interest and penalties), however designated, imposed as a result of the
existence or operation of this Agreement, except (i) any tax imposed upon Seller
in a jurisdiction other than the jurisdiction under the laws of which the Seller
was formed (hereinafter referred to as the "Resident Jurisdiction") if such tax
is allowable as a credit against the Resident Jurisdiction income taxes of
Seller; and (ii) any net income tax imposed upon Seller by any government entity
within Seller's Resident Jurisdiction. In order for the exception contained in
(i) to apply, Buyer must furnish Seller with such evidence as may be required by
the Resident Jurisdiction taxing authorities to establish that such tax has been
paid within thirty (30) days of issuance of notice by the local taxing authority
so that Seller may claim the credit.
If Buyer is required to bear a tax, duty, levy or similar charge pursuant to the
preceding paragraph, Buyer shall pay such tax, duty, levy or similar charge and
any additional amounts as are necessary to ensure that the net amounts received
by Seller hereunder after all such payments or withholdings equal the amounts to
which Seller is otherwise entitled under this Agreement as if such tax, duty,
levy or similar charge did not exist.
Seller shall not collect an otherwise applicable tax if Buyer's purchase is
exempt from Seller's collection of such tax and a valid tax exemption
certificate is furnished by Buyer to Seller.
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All prices mentioned in this Agreement are exclusive of value added taxes,
turnover taxes, sales taxes or similar taxes, including any related interest and
penalties (hereinafter all referred to as "VAT"). In the event that any VAT is
payable on the Products and/or services supplied by Seller to Buyer under this
Agreement, this VAT shall be added to the prices mentioned and shall be for the
account of Buyer. If VAT on the supplies of Seller is payable by Buyer under a
reverse charge procedure (i.e., shifting of liability, accounting or payment
requirement to recipient of supplies), Buyer shall ensure that Seller will not
effectively be held liable for this VAT by the relevant taxing authorities or
other parties. Where applicable, Seller shall use its reasonable commercial
efforts to ensure that its invoices to Buyer are issued in such a way that these
invoices meet the requirements for deduction of input VAT by Buyer, if Buyer is
permitted by law to do so.
Notwithstanding the foregoing, Buyer shall be responsible for duties consistent
with the delivery term Delivery Duty Paid (DDP), for delivery of Product made
using such delivery term in accordance with Section 6.
9. DISPOSITION OF DAMAGED OR NONCONFORMING DELIVERIES
As to discrepancies in quantity of Product which are discovered by Buyer in the
receiving process, Buyer shall (i) complete its normal receiving process on
actual quantity of Product received and (ii) within a reasonable period of time
of receipt of the Product notify Seller (at the notice address set forth herein)
of such discrepancy. Whenever unconcealed loss or damage has occurred to the
Product prior to receipt by Buyer at the Buyer's site, Buyer should xxxx the
delivery receipt with the appropriate exceptions describing the damage before
signing and request the carrier to inspect the loss or damage and note the
damage or loss on all copies of the delivery receipt. Each copy of the delivery
receipt shall be signed by Buyer and the carrier's agent. Buyer shall within a
reasonable period of time of its receipt of the Product notify Seller of any
concealed loss or damage of which it becomes aware.
As to incorrect items in shipments of Product which are discovered by Buyer in
the receiving process, Buyer shall promptly contact Seller for direction on
disposition of incorrect item(s). Freight cost to return incorrect items to
Seller will be paid by Seller. Seller shall promptly arrange for replacement
shipment of correct Product.
Buyer shall take care to pack Products that are subject to any returns under
this Agreement in a manner consistent with ensuring adequate protection from
damage while the Product is in transit.
Buyer and Seller agree to cooperate with each other to review and, if necessary,
implement improvements to the above process.
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10. FORECASTS
Upon execution of this Agreement, Buyer shall make commercially reasonable
efforts to provide Seller with a non-binding forecast for each Product required
and shall update it on a monthly basis. The forecast shall be a rolling forecast
covering a period of twelve (12) months following the effective date of the
forecast. In order for Supplier to plan efficiently for Buyer's Product Orders,
Buyer will make commercially reasonable efforts to implement a process for
submitting forecasts that reflect the forecasts submitted by Buyer and/or Buyer
Subcontractors, and ensure that Buyer's forecasted demands can be reconciled
against Orders placed on Seller. Buyer will work with Seller to reconcile any
discrepancy in the Buyer forecasts. Buyer shall submit the forecast so that
Seller receives it at least one week prior to its effective date.
11. FLEXIBLE DELIVERY
During the Term of this Agreement, Buyer may give written notice to Seller
requesting that Seller implement certain forms of flexibility in delivery
arrangements of Product ("Flexible Delivery Arrangements"), including, but not
limited to Blanket Orders, Consignment, Demand Pull, and Dock-to-Shop for
designated Product(s). Such notice shall specify the particular ordering entity
and/or facility location(s), Product, and the requested implementation date, and
the proposed Flexible Delivery Arrangement. Seller agrees to consider in good
faith any such request. Upon agreement by Seller to implement such Flexible
Delivery Arrangement, the parties agree to negotiate in good faith the terms of
such proposed Flexible Delivery Arrangement. The other terms and conditions of
this Agreement shall also apply to such agreed to Flexible Delivery
Arrangement(s); provided, however that if there is a conflict between the terms
and conditions in the Flexible Delivery Arrangement and the other terms and
conditions of this Agreement, the terms and conditions of such applicable
Flexible Delivery Arrangement shall prevail.
12. LATE DELIVERY
Seller shall ship Product in accordance with the acknowledged delivery date of
an accepted Order. In the event Seller fails to deliver Product within ten (10)
days of the acknowledged delivery date, in addition to any other remedies Buyer
may have for Seller's late delivery under this Agreement, Buyer may at its
option, (i) establish a new delivery date for Seller, or (ii) cancel the Order,
buy product elsewhere which Seller has so failed to deliver, and deduct from
Buyer's Minimum Purchase Commitment the dollar amount for which commitment has
been made elsewhere. If Buyer establishes a revised delivery date and Seller
fails to deliver fully conforming Product by that revised date, Buyer may cancel
the Order, buy product elsewhere which Seller has so failed to deliver, and
deduct from Buyer's Minimum Purchase Commitment the dollar amount for which
commitment has been made elsewhere. Cancellations pursuant to this Section shall
be at no charge to Buyer. Seller shall be responsible for any associated cost
the Buyer may incur including, but not limited to, paid wages to Buyer's
employees if Buyer's production facility is stopped, loss of sales, and any
required expedited airfreight related to late or rescheduled delivery due to
Seller's action.
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13. RESCHEDULING OR TERMINATION OF ORDERS
Buyer may at any time terminate any or all Orders, or any portion thereof, upon
written notice to Seller. Unless otherwise specified in this Agreement, Buyer's
liability to Seller with respect to such terminated Order or Orders for Standard
Product (not usable in Seller's other operations or salable to Seller's other
customers within a reasonable period of time) shall be limited to:
(i) one hundred percent (100%) of the purchase price as set forth in this
Agreement or applicable Order for the quantities scheduled to be
shipped within four (4) weeks from the written notice of termination.
Unless otherwise specified in this Agreement, Buyer's liability to Seller with
respect to such terminated Order or Orders for Custom Product (not usable in
Seller's other operations or salable to Seller's other customers within a
reasonable period of time) shall be limited to:
(i) one hundred percent (100%) of the purchase price as set forth in this
Agreement or applicable Order for the quantities scheduled to be
shipped four (4) weeks from the written notice of termination; plus
(ii) sixty percent (60%) of the purchase price as set forth in this
Agreement or applicable Order for the quantities scheduled to be
shipped between five (5) and six (6) weeks from the written notice of
termination; plus
(iii) forty percent (40%) of the purchase price as set forth in this
Agreement or applicable Order for the quantities scheduled to be
shipped between seven (7) and eight (8) weeks from the written notice
of termination; plus
(iv) twenty percent (20%) of the purchase price as set forth in this
Agreement or applicable Order for the quantities scheduled to be
shipped between nine (9) and twelve (12) weeks from the written notice
of termination.
Seller will render invoice to Buyer for any termination charges, and Buyer shall
pay Seller in accordance with Section 18.
If Buyer terminates an Order for Product and then reorders the same Product
within thirty (30) days of such termination, with delivery of the Product
scheduled within ninety (90) days of the original acknowledged delivery date of
the terminated Order, then Buyer will receive credit for any termination fees
paid to Seller, based on the quantities reordered. Notwithstanding the
foregoing, no credit will apply in the case of any reorders where the terminated
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Order had been (1) previously rescheduled, or (2) a reorder of a previously
terminated Order.
Upon such termination, Seller shall work co-operatively with Buyer, at Buyer's
request for orderly transfer of the terminated Product to Buyer or to Buyer's
designated third party in a mutually established schedule and procedure so as to
minimize impact to Buyer and Seller. Upon termination, Seller shall promptly
return all Buyer proprietary or proprietary restricted information related to
the terminated Order to Buyer.
Buyer may, without liability, reschedule Orders, or any portion thereof, by
providing written notice of reschedule (via facsimile or email) to Seller at
least thirty (30) calendar days prior to the scheduled ship date, provided
however, that in no event shall any reschedule extend the delivery date to more
than ninety (90) days out from Seller's original acknowledged delivery date.
Seller agrees to negotiate in good faith any request by Buyer for reschedule
that is an exception to the limits established above.
Any payment by Buyer under this Section 13 will be considered as liquidated
damages and will not be viewed as a penalty.
Any payments made by Buyer under this Section will be applied to the Minimum
Purchase Commitment.
14. WARRANTY
Seller warrants the Product as a production item ("Item"), but not related
services or prototypes of any such Items, to be free from defects in material
and workmanship including, but not limited to, bottle clarity and in conformance
with the written specifications furnished by or agreed to by Seller. The Seller
also warrants that all production Items have obtained the requisite FDA
approvals and agrees to immediately provide Buyer with FDA approval information
upon request from Buyer. If any failure to conform to such specification
("Defect") is suspected in any such Items, Buyer, after obtaining a Returned
Material Authorization number from Seller, shall ship suspected defective
samples of the Items to Seller, following Seller's instructions regarding the
return. Any replaced Item shall become Seller's property. As used herein "risk
lots" refers to production units of Custom Product ordered by Buyer prior to
formal production approval.
15. PRODUCT CHANGES
Seller shall provide Buyer with at least ninety (90) days prior written notice
of any changes proposed to be made by Seller (i) in the Product or in
manufacturing processes, that will affect form, fit, or function of the Product,
or (ii) in the sites of manufacturing of the Product. In regard to Seller's
manufacturing processes, Buyer reserves the right to perform periodic quality
audits, surveys, and evaluations, including, but not limited to, analysis of
each manufacturing or assembly position for acceptability of procedures and
equipment calibration, as well as evaluation of quality control/quality
assurance and data collection and analysis procedures. In no event shall Seller
be required to provide proprietary information to Buyer in connection with such
audits, surveys and evaluations.
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Notwithstanding any other provisions of this Agreement, if Buyer, in its sole
discretion, does not agree to the change proposed by Seller, Buyer shall have
the right to terminate any or all Orders for Product affected by such change
without further obligation and shall have the right to buy elsewhere Product and
to deduct from Buyer's commitment under this Agreement to Seller the quantity
for which commitment has been made elsewhere. Seller shall use commercially
reasonable efforts to facilitate a timely, smooth transition to an alternate
component, if available.
Notwithstanding anything contained herein to the contrary, Seller reserves the
right to manufacture the Product in any facility qualified by Seller.
16. DISCONTINUANCE OF PRODUCT
Seller shall provide Buyer at least twelve (12) months written notice that any
Product covered by this Agreement is discontinued. Buyer may place Orders for
such Product at the prices set forth in this Agreement during this twelve (12)
month period and Seller shall fill such Orders even if such twelve (12) month
period extends beyond the term of this Agreement. Delivery schedules for this
Product shall be negotiated by the parties at time of Order placement, but
delivery will not extend beyond eighteen (18) months from date of notice of
discontinuance unless Seller agrees otherwise. Notwithstanding the foregoing, to
the extent that an alternative product meeting Buyer's functional and cost
requirements is reasonably available and can be qualified within six (6) months,
as determined by Buyer, then notice of discontinuation may be reduced to six (6)
months. Any Product for which a notice of discontinuation has been received by
Buyer, shall be considered a Custom Product solely for purposes of Section 13,
Cancellation and Rescheduling, effective as of receipt of such notice.
17. COMPETITION RIGHTS
Seller agrees to use its best efforts to provide Buyer with Product utilizing
the most advanced materials available. In the event a more advanced material
becomes available, Buyer shall provide Seller with a ninety (90) day written
notice requesting the Seller to obtain a license to utilize such material. If
the Seller is unable to obtain a license, Buyer reserves the right to
discontinue the Product following the steps under Section 16 of this Agreement.
18. PAYMENT TERMS
Buyer shall pay the invoiced amount within thirty (30) days from the date of
Seller's invoice. Prices shall be quoted and invoices shall be rendered and paid
in United States currency unless agreed to otherwise by the parties.
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19. INTELLECTUAL PROPERTY INDEMNITY
(a) With respect to any claim alleging that the normal use, or sale of any
Product (including its related documentation) furnished under this
Agreement is an infringement of any patent, copyright, mask work or
trademark or a misappropriation of a trade secret, Seller will,
subject to the conditions and exceptions stated below: (i) at its
option, defend or settle such claim, at its expense, (ii) reimburse
Buyer for any reasonable costs incurred at Seller's written request
(including reasonable attorneys' fees) relating to such claim; and
(iii) pay damages and costs assessed by final judgment of such claim
against such Product.
(b) Seller's obligations hereunder are conditioned upon: (i) Buyer giving
Seller written prompt notice of any such claim; (ii) Seller having
full and complete control of the defense and/or settlement thereof,
including appeals; and (iii) Buyer cooperating fully with Seller to
facilitate the defense or settlement of such claim.
(c) If any action or proceeding shall be brought in connection with any
liability or claim to be indemnified under this Agreement, Seller
shall keep Buyer apprised as to the status of the defense or
settlement of such action or proceeding.
(d) Notwithstanding the foregoing, Seller shall have no obligation under
this Section 19, and Buyer shall (except with respect to item (ii)
below) defend, indemnify and save harmless Seller and its Sellers and
affiliated companies, under the terms provided herein, from all costs,
expenses, liabilities and claims, for any such claim, action,
proceeding or suit alleging infringement: (i) arising from Seller's
compliance with specifications, modifications, drawings, designs or
instructions furnished by, or on behalf of, Buyer; or (ii) arising as
a result of the combination, operation or use of any Product
(including documentation) furnished hereunder, or any component
thereto, with item(s) not furnished by Seller or furnished by Seller
but which combination was not recommended by Seller; or (iii) arises
from adherence to instructions to apply Buyer's trademark, trade name
or other company identification; or (iv) resides in item(s) that is
furnished by Buyer to Seller for use under this Agreement; or (v) is
based upon modification made by Buyer of any Product or component
thereof (including software and documentation).
(e) The sale of any Product by Seller shall not in any way confer upon
Buyer, or upon anyone claiming under Buyer, any license (expressly, by
implication, or otherwise) under any patent claim of Seller or others
covering or relating to any combination, machine or process in which
such Product is or might be used, or to any process or method of
making such Product.
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(f) Notwithstanding any other provision in this Agreement, Seller's total
liability to Buyer for all claims, actions, proceedings or suits
alleging infringement of intellectual property rights because of, or
in connection with, any items furnished pursuant to this Agreement
shall be limited to the specific undertakings contained in this
Section 19.
20. EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY
A. For purposes of the exclusive remedies and limitations of liability
set forth in this Section, Seller shall be deemed to include its
subsidiaries and Affiliates and the directors, officers, employees,
agents, representatives, subcontractors and Seller's suppliers of each
of them; and "damages" shall be deemed to refer collectively to all
injury, damage, loss or expense incurred.
B. Seller's entire liability and Buyer's exclusive remedies against
Seller for any damages caused by any Product Defect or failure, or
arising from the performance or non-performance of any work,
regardless of the form of action, whether in contract, tort including
negligence, strict liability or otherwise shall be:
For infringement, the remedies set forth in the Section entitled
Intellectual Property Indemnity;
For failure of Product or work performed, the remedies stated in the
Section entitled Warranty;
For failure to deliver or for delays in delivery of production
quantities, Seller shall have no liability unless the delivery is
delayed by more than ten (10) days by causes not attributable either
to Buyer or to conditions beyond Seller's reasonable control as set
forth in Section 21, in which case Buyer shall have the right, as its
sole remedy, to terminate the Order without incurring termination
charges and deduct from Buyer's Minimum Purchase Commitment the dollar
amount for which commitment has been made elsewhere;
For bodily injury or death to any person proximately caused, Buyer's
right to proven direct damages; and
For claims other than set forth above, Seller's liability to Buyer
shall be limited to direct damages that are proven in an amount not to
exceed $50,000,000 in the annual aggregate.
C. Except as otherwise expressly provided in this Agreement, neither
party shall be liable for incidental, indirect, special, exemplary or
consequential damages, including but not limited to lost profits,
savings or revenues of any kind, whether or not such party has been
advised of the possibility of such damages. This provision shall
survive failure of an exclusive remedy.
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21. EXCUSE OF PERFORMANCE
Except for Buyer's obligation to make timely payments when due, neither party
shall be held responsible for any delay or failure in performance of any part of
this Agreement to the extent such delay or failure is caused by fire, flood,
explosion, war, strike, embargo, government requirement, civil or military
authority, act of God, inability to secure material due to a world-wide
shortage, nature or the public enemy, act or omission of carriers or any other
causes beyond its reasonable control.
22. NOTICES
Except as provided below, all notices, requests, demands and other
communications required or permitted to be made hereunder shall be in writing
and shall be deemed duly delivered against a signed receipt for same, sent via
e-mail with confirmation of receipt, sent via facsimile with a confirmation
retained by the sending party, sent by registered or certified mail, return
receipt requested, first class postage prepaid, or sent by nationally recognized
overnight delivery service, addressed to the parties at the addresses below or
to the addresses to be exchanged from time to time during the term of this
Agreement for the particular kind of notice to be sent.
Notwithstanding the foregoing, in the event of any notice of breach or
termination of this Agreement, the following provision shall apply:
All notices or other communications under this Agreement regarding breach or
termination of this Agreement shall be in writing and shall be deemed to be duly
given when (a) delivered in person or (b) deposited in the United States mail or
private express mail, postage prepaid, addressed as follows:
If to Seller, to: Xxxxx Container Corp.
0000 X. Xxx Xxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Attn: Xxxxx x. Xxxxx
If to Buyer to: Taste of Aruba (US), Inc.
00000 X. Xxxxxx Xx.
Xxxxxxxxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx
Any party may, by notice to the other party, change the address to which such
notices are to be given.
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23. SHIPPING DOCUMENTATION; INVOICING
Seller will continue to ship Product with the kind of accompanying information
and documentation that has been normally provided to Buyer from Seller as of the
Effective Date of this Agreement. Seller and Buyer agree to cooperate with each
other to the extent that any changes may be requested by either party in
connection with such matters. Invoice to Buyer will be rendered upon shipment,
unless otherwise agreed in writing.
Seller shall provide Buyer with a valid, accurately completed Exporters'
Certificate of Origin prior to the first shipment of Product sufficient to be
used by Buyer as proof of eligibility for any duty preferential treatment
programs for which Buyer has advised Seller. Seller further agrees to provide
full and reasonable cooperation to Buyer for substantiation of preferential duty
program claims, responses to customs inquiries, or other treaty claims that
arise out of Product provided under this Agreement or Order. Seller shall notify
Buyer in writing prior to making any pricing or sourcing changes for Product
which may affect the application of preferential duty treatment programs,
subject to Buyer having advised Seller of the programs for which preferential
treatment have been requested.
24. (INTENTIONALLY LEFT BLANK)
25. PACKING, LABELING AND SERIALIZATION
Packing, labeling and serialization of shipping packages will continue to be
performed consistent with the way it has normally been provided to Buyer from
Seller as of the Effective Date of this Agreement. Seller and Buyer agree to
cooperate with each other to the extent that any changes may be requested by
either party in connection with such matters.
26. MARKING
All Product furnished under this Agreement shall be marked for identification
purposes in accordance with the Product and packaging Specifications as set
forth by the Buyer or elsewhere in this Agreement.
27. NONDISCLOSURE AGREEMENT
During performance of this Agreement, the parties may disclose or furnish to
each other proprietary or proprietary restricted marketing, technical, or
business information, including, without limitation, products and/or software
("information"), relating to the subject of this Agreement.
Information provided in tangible form shall be clearly marked as proprietary or
proprietary restricted. With respect to any technical information, including but
not limited to layout, design, or embedded in any such device is proprietary
information notwithstanding the absence of any proprietary marking on such
device. Information provided orally will be considered proprietary or
proprietary restricted if the disclosing party says it is proprietary or
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proprietary restricted at the time of oral disclosure and summarizes it in a
proprietary or proprietary restricted writing provided to the other party within
twenty (20) days of the oral disclosure. Pricing to Buyer shall be deemed
proprietary restricted information notwithstanding that such information is not
in writing or if in writing is not marked proprietary restricted.
The receiving party shall: (a) hold information in confidence using the same
degree of care as it normally exercises to protect its own proprietary
information or proprietary restricted information, (b) restrict disclosure and
use of information to employees (including any contractors or consultants) with
a need-to-know, and not disclose it to any other parties, (c) advise those
employees, contractors and consultants of their obligations with respect to the
information, (d) not copy, duplicate, reverse engineer or decompile information,
(e) use the information only in furtherance of performance under this Agreement,
and (f) upon expiration or termination of this Agreement, return all information
to the disclosing party or at the request of the disclosing party, destroy such
information.
The receiving party shall have no obligation to keep confidential information
that: (a) was previously known to it free of any confidentiality obligation, (b)
was independently developed by it, (c) is or becomes publicly available other
than by unauthorized disclosure, (d) is disclosed to third parties by the
disclosing party without restriction, or (e) is received from a third party
without violation of any confidentiality obligation.
If a party is faced with legal action or a requirement under government
regulations to disclose or make available proprietary or proprietary restricted
information received hereunder, such party shall forthwith notify the furnishing
party and, upon request of the latter, cooperate in contesting such action or
requirement at the requesting party's expense. Neither party shall be liable for
damages for any disclosure or unauthorized access pursuant to legal action or
government regulations or for inadvertent disclosure, access, or use if the
customary degree of care as it uses with respect to its own proprietary or
proprietary restricted information has been exercised and if, upon discovery of
such inadvertent disclosure, access, or use the furnishing or receiving party
has endeavored to prevent any further (inadvertent or otherwise) disclosure or
use.
Except for the receiving party's obligation to keep confidential Buyer pricing
information, the obligations imposed by this Section shall survive for a period
of five (5) years after termination or expiration of this Agreement. The
obligations imposed by this Section with respect to Buyer internal pricing
information shall survive termination or expiration of this Agreement.
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28. EXPORT CONTROL
The parties acknowledge that any Products, and technical information (including,
but not limited to, services and training) provided under this Agreement are
subject to U.S. or other applicable export laws and regulations and any use or
transfer of such Products, and technical information must be authorized under
those laws and regulations. The parties agree that they will not use,
distribute, transfer, or transmit the Products, or technical information (even
if incorporated into other products) except in compliance with U.S. export
regulations. If requested by either party, the other party also agrees to sign
written assurances and other export-related documents as may be required for the
exporting party to comply with U.S. or other applicable export regulations.
29. ASSIGNMENT
Neither party shall assign this Agreement or any rights or obligations hereunder
without the prior written consent of the other party, which consent shall not be
unreasonably withheld, except that either party may assign this Agreement or any
rights or obligations hereunder to an entity which acquires all or substantially
all of that party's assets which relate to performance under this Agreement. Any
attempted assignment without the other party's consent shall be void and
ineffective.
30. CHOICE OF LAW
The parties are familiar with Arizona commercial law, have been guided by
Arizona commercial law in their negotiation of this matter, and desire to avoid
uncertainty and disputes concerning the law that will govern the Agreement
between the parties. Each party conducts substantial business in the State of
Arizona. Accordingly, the parties expressly intend and agree that the
construction, interpretation, and performance of the Agreement and all
transactions under it shall be governed by the laws of the State of Arizona,
excluding its choice of law rules and excluding the Convention for the
International Sale of Goods.
31. DISPUTE RESOLUTION
Senior management of either party may, upon notice and within five (5) business
days of receipt of a notice from the other party elect to utilize a non-binding
resolution procedure whereby each presents its case before a panel consisting of
two (2) senior executives of each of the parties and, if such executives can
agree upon such an individual, a mutually acceptable neutral advisor. If a party
elects to use the procedure set forth in this Section, the other party shall
participate. The hearing shall occur no more than ten (10) business days after a
party serves notice to use the procedure set forth in this Section. If the
matter cannot be resolved by such senior executives, the neutral advisor, if one
has been agreed upon, may be asked to assist such senior executives in
evaluating the strengths and weaknesses of each party's position on the merits
of their dispute. The parties shall each bear their respective costs incurred in
connection with the procedure set forth in this Section, except that they shall
share equally the fees and expenses of the neutral advisor, if any, and the cost
of the facility for the hearing.
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32. PUBLICITY; IDENTIFICATION
Any disclosure of the terms and conditions of this Agreement shall be made only
with the prior written agreement of both parties. Each party shall submit to the
other all proposed copy of advertising and publicity material relating to the
disclosure of this Agreement.
Neither Seller nor Buyer shall use any identification of, or reference to, any
code, drawing, specification, trade name, trademark, trade device, insignia,
service xxxx, symbol, or any abbreviation, contraction, or simulation thereof,
of the other party in any advertising or promotional efforts without such other
party's prior approval.
Notwithstanding the foregoing, Buyer gives Seller permission to list Buyer as
one of Seller's customers.
33. SEVERABILITY
If any provision or part hereof shall be held to be invalid or unenforceable for
any reason, then the meaning of such provision or part hereof shall be construed
so as to render it enforceable to the extent feasible. If no feasible
interpretation would save such provision or part hereof, it shall be severed
here from, but without in any way affecting the remainder of such provision or
any other provision contained herein, all of which shall continue in full force
and effect unless such severance effects such a material change as to render the
Agreement unreasonable.
34. NON-WAIVER
No course of dealing or failure of either party to strictly enforce any term,
right or condition of this Agreement shall be construed as a waiver of such
term, right or condition.
35. COMPLIANCE WITH LAWS
Each party, its agents, contractors and subcontractors shall comply in
performance under this Agreement with all applicable local, state, federal,
regional and international laws, ordinances, regulations and codes, standards,
directives and international conventions and agreements (collectively "law(s) or
Law(s)"), including, without limitation, those relating to (i) the
identification and procurement of required permits, certificates, licenses,
insurance, approvals and inspections and (ii) Product content requirements or
restrictions applicable to the sale or distribution of Products manufactured by
Seller and supplied to Buyer.
Seller shall use commercially reasonable efforts to ensure that its activities
in performance of this Agreement and an Order placed pursuant to this Agreement
shall not put Buyer in violation of any United States or applicable foreign
customs laws, statutes, or regulations. Seller agrees to assist Buyer to ensure
that Buyer can import the Product into the United States in accordance with all
United States Customs laws, statutes, and regulations, and in support of this
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assistance, Seller agrees to follow Buyer's directives, if any, which may be
attached to and made part of this Agreement. When requested by Buyer, Seller
agrees to assist Buyer with importing and exporting Product between non-United
States jurisdictions.
36. RESPONSIBILITY FOR EMPLOYEES
The personnel of a party ("visiting party") shall, while on the premises of the
other party ("host party"), comply with the host party's rules and regulations
with regard to safety and security. The host party shall provide a written copy
of such rules and regulations to the personnel of the visiting party. The
visiting party shall have full control over its personnel and shall be entirely
responsible for their complying with the host party's rules and regulations. The
visiting party shall indemnify and hold the host party harmless from any claims
or demands including the costs, expenses and reasonable attorney's fees on
account thereof, that may be made by (i) anyone for injuries to persons or
damage to property resulting from the negligent or willful acts or omissions of
the visiting party's personnel; or (ii) the visiting party's personnel under
Worker's Compensation or similar laws. The visiting party shall defend the host
party against any such claim or demand.
37. SPECIFICATIONS OR DRAWINGS
The following technical specifications and other information (a copy of each is
in Seller's possession), as changed from time to time with Seller's written
approval, are hereby made part of this Agreement.
- 350ML (20 GRAM PREFORMS) FOR Taste of Aruba Bottle Design
- 500ML (23.5 GRAM PREFORMS) FOR Taste of Aruba Bottle Design
- 1 Liter (32.0 GRAM PREFORMS) FOR Taste of Aruba Bottle Design
In the event of a conflict between the technical specifications and other
information referred to above, and the main body of this Agreement, the main
body of this Agreement will control.
38. ATTACHMENTS
The following attachments are hereby made a part of this Agreement:
Attachment A - Products
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39. ENTIRE AGREEMENT
The terms and conditions contained in this Agreement supersede all prior oral or
written understandings between the parties and shall constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement. This Agreement shall not be modified or amended except by a writing
signed by Buyer and Seller.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year above written.
TASTE OF ARUBA (US), INC. XXXXX CONTAINER CORP.
By: /s/ Xxxx X Xxxxx By: /s/ Xxxxxx Xxxxx
-------------------------------- --------------------------------
Name: Xxxx X Xxxxx Name: Xxxxxx Xxxxx
Title: President and CEO Title: President and COO
Date: April 1, 2010 Date: April 1, 2010
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