Exhibit 10.57
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED ON A
REQUEST FOR CONFIDENTIAL TREATMENT
OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION
MASTER SUPPLY AGREEMENT
BETWEEN
GRAFTECH INC.
AND
BALLARD POWER SYSTEMS INC.
TABLE OF CONTENTS
PAGE
PART 1 DEFINITIONS AND INTERPRETATION.....................................1
Definitions...........................................................1
Interpretation........................................................8
Schedules.............................................................9
PART 2 PURCHASE AND SALE OF GRAPHITIC MATERIALS AND
GRAPHITIC COMPONENTS...............................................9
[TEXT DELETED] Preparation Process....................................9
Purchase and Sale After [TEXT DELETED]................................9
Supply Arrangement Terms..............................................9
Exclusive Supplier of Graphitic Materials............................10
BPS Intent re: Graphitic Components..................................10
Future Forecasts and Pricing - Graphitic Materials and
Graphitic Components.................................................10
Future Forecasts for Investment Planning.............................11
Prototype Product Sales..............................................12
Most Favoured Customer...............................................12
BPS's Supplier Manual................................................12
Third Party Sales....................................................13
Liaison Personnel....................................................14
Development Exceptions...............................................14
Existing Supply Arrangement..........................................14
PART 3 CONDITIONS OF PURCHASE............................................14
Conditions of Purchase...............................................14
PART 4 CONFIDENTIALITY...................................................15
Non-Disclosure.......................................................15
Exceptions...........................................................16
Legal Requirement to Disclose........................................16
No Solicitation......................................................16
Reasonable Restrictions..............................................17
Publicity............................................................17
PART 5 DISPUTE RESOLUTION................................................17
Initiation of Process................................................17
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Committee Involvement................................................17
Senior Officer Involvement...........................................17
Arbitration..........................................................18
Implementation.......................................................18
Venue of Arbitration.................................................18
Non-Applicability of Part 5..........................................18
PART 6 TERM AND TERMINATION..............................................18
Term ............................................................18
Termination..........................................................19
Liability Limited....................................................22
Exclusions to Limited Liability......................................22
Remedies.............................................................22
PART 7 GENERAL...........................................................22
Amendments...........................................................22
Further Assurances...................................................22
Entire Agreement.....................................................22
Notice...............................................................23
Deemed Receipt.......................................................23
Change of Address....................................................23
Binding Effect.......................................................24
Governing Law........................................................24
Attornment...........................................................24
Force Majeure........................................................24
Severability.........................................................24
Counterparts.........................................................25
No Assignment........................................................25
Survival.............................................................25
No Partnership.......................................................25
-ii-
MASTER SUPPLY AGREEMENT
THIS AGREEMENT is made effective the 5th day of June, 2001
BETWEEN:
GRAFTECH INC., a Delaware corporation having an office at
11709 Madison Avenue, Lakewood, Ohio 44107
("Graftech")
AND:
BALLARD POWER SYSTEMS INC., a Canadian corporation having
an office at 9000 Glenlyon Parkway, Burnaby, British Columbia,
Canada V5J 5J9
("BPS")
WHEREAS:
(A) The parties and UCAR Carbon Company Inc. ("UCAR Carbon") have entered
into a Joint Development and Collaboration Agreement (the "Collaboration
Agreement") as of the date hereof for the development of Graphitic
Materials (as defined herein) and Graphitic Components (as defined
herein) and related process technology and manufacturing processes for
their use in PEM Fuel Cells and PEM Fuel Cell Systems (as defined
herein);
(B) BPS seeks an assured source of supply of Graphitic Materials and
Graphitic Components in connection with the development and manufacture
of PEM Fuel Cells and PEM Fuel Cell Systems;
(C) Graftech is a manufacturer of Graphitic Materials and Graphitic
Components; and
(D) BPS intends to purchase from Graftech, and Graftech intends to supply to
BPS, Graphitic Materials and Graphitic Components on the terms and
conditions set forth in this Agreement and the individual supply
arrangements (each a "Supply Arrangement") made pursuant to this
Agreement;
NOW, THEREFORE, the parties agree as follows:
PART 1
DEFINITIONS AND INTERPRETATION
DEFINITIONS
1.1 In this Agreement, including the recitals and schedules, except as
expressly provided or unless the context otherwise requires.
AFFILIATE, in relation to a specified Person, means a Person that
directly or indirectly controls, is under common control with, or is
controlled by the specified Person. For the purposes of this Agreement,
control of a corporation, limited liability company, partnership, limited
partnership or other entity by a Person is deemed to occur if
(a) securities or other ownership interests of the corporation,
limited liability company, partnership, limited partnership or
other entity to which are attached more than 50% of the votes that
may be cast to elect members of the board of directors, general
partners, managing members or other governing body of such entity
or other rights to elect a majority of the members of the
applicable governing body are held, other than by way of security
only, by or for the benefit of the Person, and
(b) the votes attached to those securities or other ownership
interests are sufficient, if exercised, to elect a majority of the
members of the board of directors, general partners, managing
members or other governing body of such entity,
provided, however, that UCAR Carbon will be deemed to be an Affiliate of
Graftech if
(c) it directly or indirectly holds a sufficient number of the voting
rights attached to all outstanding voting securities of Graftech
to affect materially the control of Graftech, or,
(d) it, together with other Persons, acting jointly or in concert by
virtue of an agreement, arrangement, commitment or understanding,
directly or indirectly, holds in total a sufficient number of the
voting rights attached to all outstanding securities of Graftech
to affect materially the control of Graftech.
For purposes of this Agreement, if UCAR Carbon, alone or acting jointly
or in concert with other Persons, directly or indirectly, holds more than
20% of the voting securities of Graftech, UCAR Carbon will be deemed, in
the absence of evidence to the contrary, to control Graftech,
ANNUAL COMMITMENT has the meaning ascribed to it in ss.2.6(c),
[TEXT DELETED] means, for the purposes of this Agreement, the formal
management decision point that provides [TEXT DELETED] for the [TEXT
DELETED] and [TEXT DELETED] and should include [TEXT DELETED] on [TEXT
DELETED] and/or [TEXT DELETED]. It is the [TEXT DELETED] described as the
[TEXT DELETED] in [TEXT DELETED] dated [TEXT DELETED],
[TEXT DELETED] means, for the purposes of this Agreement, the [TEXT
DELETED] and [TEXT DELETED] where the [TEXT DELETED] of the [TEXT
DELETED] is [TEXT DELETED]. No [TEXT DELETED] should be made [TEXT
DELETED] this [TEXT DELETED] and [TEXT DELETED] is [TEXT DELETED] to
[TEXT DELETED] with [TEXT DELETED] for the [TEXT DELETED] of [TEXT
DELETED]. It is the [TEXT DELETED] described as the [TEXT DELETED] in
[TEXT DELETED], dated [TEXT DELETED],
BPS/GRAFTECH LICENSE has the meaning ascribed to it in the Collaboration
Agreement,
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BPS PERMITTED LICENSEES means, collectively,
(a) [TEXT DELETED] and its Subsidiaries (other than Subsidiaries that
have a line of business that would make them a Graftech
Competitor),
(b) [TEXT DELETED] and its Subsidiaries (other than Subsidiaries that
have a line of business that would make them a Graftech
Competitor),
(c) wholly-owned subsidiaries of BPS and Ballard Generation Systems
Inc.,
(d) licensees of BPS's Background IP, but excludes any licensee that
has a line of business that would make it a Graftech Competitor,
(e) subject to ss.3.5(a)(i)(B) of the Collaboration Agreement,
subcontractors of BPS, and
(f) each other Person that is approved in writing by Graftech as BPS's
sublicensee of the Graftech/BPS License,
BUSINESS DAY means a day that is not
(a) a Saturday or a Sunday, or a British Columbia provincial, Canadian
federal, a United States national, or Ohio state, holiday, or
(b) a day during the period commencing on December 24 of one year and
ending on January 2 of the following year,
COLLABORATION AGREEMENT has the meaning ascribed to it in Recital (A) to
this Agreement,
COMMITTEE has the meaning ascribed to it in the Collaboration Agreement,
CONDITIONS OF PURCHASE means the conditions of purchase annexed hereto as
Schedule D, as may be amended by the parties to this Agreement by mutual
agreement from time to time,
CONFIDENTIAL INFORMATION means, in relation to a Person, information
known or used by such Person in connection with its business and
technology, including, but not limited to, such Person's Intellectual
Property, customer information, financial information, marketing
information, and information as to business opportunities and research
and development,
DEVELOPMENT has the meaning ascribed to it in the Collaboration
Agreement,
DISCLOSING PARTY has the meaning ascribed to it in ss.4.1,
DISPUTE has the meaning ascribed to it in ss.5.1,
DISPUTE NOTICE has the meaning ascribed to it in ss.5.1,
3
EFFECTIVE DATE means the date appearing on page 1 of this Agreement,
EVENT OF DEFAULT in relation to a party to this Agreement means the
occurrence of one or more of the following circumstances with respect to
such party which has, or is reasonably likely to have, a material adverse
effect on the business of the other party or on the performance by such
party or the other party of a material term of this Agreement:
(a) an order is made or a resolution is passed or a petition is filed
by such party for the liquidation, dissolution or winding-up of
such party (other than pursuant to a corporate reorganization,
recapitalization, realignment or restructuring not connected with
an event described in ss.(d), ss.(e) or ss.(f));
(b) such party is in breach of its obligations under Part 4;
(c) such party commits a breach in observing or performing any other
covenant, agreement or condition of this Agreement (not covered by
another provision of the definition of Event of Default) on its
part to be observed or performed and does not rectify or cure such
breach within 30 days after receipt of written notice from the
other party to this Agreement specifying in reasonable detail such
breach; provided, however, that if the nature of the breach is
such that it cannot be cured within such 30-day period and such
party has provided the other party to this Agreement with
assurances, reasonably satisfactory to the other party, that the
breach can be cured within 60 days, and such party has commenced
and continued with all due diligence to cure such breach, such
breach will not constitute an Event of Default unless such breach
is not cured within 60 days after receipt by such party of written
notice specifying the breach;
(d) an execution, sequestration or any other process of any court
becomes enforceable against such party or any distress attachment
or analogous process is levied upon any material part of the
property, assets and undertaking of such party and any such
process or distress attachment is not stayed or otherwise
suspended by a court of competent jurisdiction within 60 days;
(e) such party voluntarily files for bankruptcy relief, an involuntary
bankruptcy proceeding is commenced against such party, and is not
dismissed within 90 days, or such party makes an assignment for
the benefit of creditors, consents to a proposal or similar action
under any bankruptcy, insolvency or debtor-creditor legislation
applicable to it, or commences (or has commenced against it and is
not dismissed within 90 days) any other proceedings relating to it
under any reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction
whether now or hereafter in effect, or consents to any such
proceeding;
(f) a custodian, liquidator, receiver, receiver and manager,
receiver-manager, trustee or any other person with similar powers
is appointed for such party or in respect of any material property
or assets or material part of the property or assets of such
4
party and such appointment is not discharged within 90 days or
before any action is taken with respect to such property or asset;
or
(g) a final, non-appealable, decision of any judicial, administrative,
governmental authority or other authority or arbitrator is made
which enjoins or restrains, or renders illegal or unenforceable,
the performance or observance by such party of any material term
of this Agreement,
FLOW FIELD PLATE means an electrically conductive fuel cell separator
plate that can be used in PEM Fuel Cells,
GAS DIFFUSION LAYER or GDL means a Substrate which has been [TEXT
DELETED] or [TEXT DELETED] to enable it to be [TEXT DELETED] of a [TEXT
DELETED] in a [TEXT DELETED] ,
GRAFTECH ARISING IP means all Intellectual Property arising pursuant to
the Development concerning items allocated to Graftech in Schedule B of
the Collaboration Agreement including, but not limited to, the design,
composition, manufacturing techniques and methodology respecting such
items,
GRAFTECH BACKGROUND IP means all Intellectual Property owned or
controlled by Graftech or its Affiliates before the Effective Date,
GRAFTECH/BPS LICENSE has the meaning ascribed to it in the Collaboration
Agreement,
GRAFTECH COMPETITOR means a manufacturer of Graphitic Materials,
GRAPHITIC COMPONENTS means components made from or utilizing, in whole or
in part, Graphitic Materials, including, but not limited to, Flow Field
Plates, GDLs and other components for PEM Fuel Cell and PEM Fuel Cell
Systems,
GRAFTECH IP means, collectively, the Graftech Arising IP and the Graftech
Background IP,
GRAPHITIC MATERIALS means materials of intercalated natural graphite
flakes and materials derived from such flakes, such as expanded graphite
and/or flexible graphite (commonly referred to as graphite sheet or
foil), [TEXT DELETED], [TEXT DELETED] or [TEXT DELETED], and [TEXT
DELETED], [TEXT DELETED] or [TEXT DELETED],
INITIAL PURCHASING PERIOD means with respect to a particular Supply
Arrangement, the period commencing on the date of execution of such
Supply Arrangement and ending on
(a) December 31, of the same year, or
(b) if the period calculated pursuant to ss.(a) is less than six
months, December 31 of the following year,
INITIAL TERM has the meaning ascribed to it in ss.6.1,
5
INTELLECTUAL PROPERTY or IP means a patent, patent application,
industrial design, invention, design, trade secret, idea, work,
methodology, technology, innovation, creation, concept, moral right,
development drawing, research, analysis, know-how, experiment, copyright,
data, formula, method, procedure, process, system or technique,
JOINT ARISING IP has the meaning ascribed to it in the Collaboration
Agreement,
MEA means a membrane electrode assembly being a solid polymer electrolyte
or ion exchange membrane disposed between two GDLs for use in a PEM Fuel
Cell and having an electrochemically active region that includes a
quantity of electrocatalyst typically disposed in a layer at each
membrane/GDL interface,
NET SALES PRICE means the gross invoice price (based on fair and honest
pricing in accordance with normal established pricing policy of the party
paying the royalty), less allowances for returns (in accordance with the
normal established return policy of such party), and less cash and other
trade discounts off the invoiced price (to the extent separately stated
on such invoice) to the extent consistent with normal established
discounting policy of such party, shipping charges (to the extent
separately stated in such invoice) and sales and other excise taxes
included in such invoice price, received or receivable by the party and
attributable to the supply of Graphitic Components; provided, however,
that with respect to any Graphitic Components disposed of (other than
disposal of obsolete, defective and waste products) by such party in any
manner other than a bona fide and arm's length sales transaction, the Net
Sales Price of such Graphitic Components will be deemed to be an amount
equal to the amount which would have been the Net Sales Price of such
Graphitic Components had they been sold in the same market for cash in a
bona fide and arm's length transaction,
NOTICE has the meaning ascribed to it in ss.7.4,
PEM FUEL CELL means, subject to ss.2.13, a polymer electrolyte membrane
fuel cell or fuel cell stack (including, for greater certainty, a direct
methanol polymer electrolyte membrane fuel cell or fuel cell stack),
including components, devices, materials and subsystems thereof necessary
or desirable for the functioning of the fuel cell or fuel cell stack,
including for sealing, venting of gases, vibration isolation,
electromagnetic shielding, the supply, recirculation and removal of gases
and fluids, inlet gas conditioning, humidification and monitoring, and
for control logic and interface logic for the safe and optimal
performance of the fuel cell or fuel cell stack, definition of control
interfaces between the fuel cell and the fuel cell system control system,
and further including structural elements, housings and interfaces with
an associated fuel cell system or components thereof,
PEM FUEL CELL SYSTEM means, subject to ss.2.13, the components assembled
or designed for assembly around A PEM Fuel Cell, including the fuel tank,
fuel storage and supply subsystem, fuel processor, air supply subsystem,
cooling subsystem, control subsystem, electronic interfaces and power
conditioning subsystem,
6
PERSON means an individual, corporation, body corporate, firm, limited
liability company, partnership, syndicate, joint venture, society,
association, trust or unincorporated organization or trustee or other
such legal representative,
PRICING AND DELIVERY SCHEDULE has the meaning ascribed to it in
ss.2.6(b),
PRODUCTS means Graphitic Materials and Graphitic Components that have
passed the [TEXT DELETED],
PROTOTYPE PRODUCTS means Graphitic Materials and Graphitic Components
that have not passed the [TEXT DELETED],
PURCHASE ORDER has the meaning ascribed to it in ss.2.8,
RECIPIENT has the meaning ascribed to it in ss.4.1,
RECIPIENT'S AGENTS has the meaning ascribed to it in ss.4.1(a),
RENEWAL TERM has the meaning ascribed to it in ss.6.1,
REVISED ANNUAL COMMITMENT has the meaning ascribed to it in ss.2.6(g),
REVISED PRICING AND DELIVERY SCHEDULE has the meaning ascribed to it
in ss.2.6(d),
RFQ has the meaning ascribed to it in ss.2.1,
ROYALTY RATE means a mutually agreed to royalty determined by reference,
inter alia, to the factors described in Schedule C attached hereto,
RULES has the meaning ascribed to it in ss.5.4,
SENIOR OFFICER means, in the case of BPS, BPS's President and, in the
case of Graftech, Graftech's President,
SPECIFICATIONS means the specifications for the Graphitic Materials and
Graphitic Components agreed to by BPS and Graftech,
SUBSTRATE means a Graphitic Material [TEXT DELETED] for liquid or gas
permeability but, for greater certainty, excludes a GDL,
SUPPLIER MANUAL means the BPS document which describes BPS's method of
evaluating, approving, rating and ranking its suppliers' performance and
product quality, the current version of which is attached hereto in
Schedule A, as may be amended from time to time,
SUPPLY ARRANGEMENT has the meaning ascribed to it in Recital (D) to this
Agreement,
SUPPLY INDIVIDUAL DEFAULT LICENSE has the meaning ascribed to it
in ss.2.10,
7
UCAR CARBON has the meaning ascribed to it in Recital A,
YEAR means a calendar year, and
YEARLY FORECAST has the meaning ascribed to it in ss.2.6(a),
INTERPRETATION
1.2 In this Agreement, except as otherwise expressly provided or unless the
context otherwise requires,
(a) "this Agreement" means this Master Supply Agreement as from time
to time supplemented or amended by one or more agreements entered
into pursuant to the applicable provisions hereof,
(b) the headings in this Agreement are inserted for convenience only
and do not form a part of this Agreement and are not intended to
interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof,
(c) the terms "including" and "such as", when following any general
statement or term, are not to be construed as limiting the general
statement or term to the specific items or matters set forth or to
similar items or matters, but rather as permitting the general
statement or term to refer to all other items or matters that
could reasonably fall within their broadest possible scope,
(d) all accounting terms not otherwise defined herein have the
meanings assigned to them, and all calculations to be made
hereunder are to be made, in accordance with, as applicable to BPS
or Graftech, respectively, Canadian or United States generally
accepted accounting principles applied on a consistent basis,
(e) except where otherwise specified, all references to currency mean
currency of the United States of America,
(f) a reference to a statute includes all regulations made thereunder,
all amendments to the statute or regulations in force from time to
time, and any statute or regulation that supplements or supersedes
such statute or regulations,
(g) a reference to an entity includes any successor to that entity,
(h) words importing the masculine gender include the feminine or
neuter, words in the singular include the plural, words importing
a corporate entity include individuals, and VICE VERSA,
(i) a reference to "agreed to", "approval", "authorization" or
"consent" means written agreement, approval, authorization or
consent, as the case may be, and
8
(j) a reference to a Part is to a Part of this Agreement and the
symbol ss. followed by a number or some combination of numbers and
letters refers to the section, paragraph, subparagraph, clause or
subclause of this Agreement so designated.
SCHEDULES
1.3 The following schedules are attached hereto and are incorporated into
this Agreement by reference and form a part hereof:
Schedule A Supplier Manual
Schedule B Supply Arrangement - Graphitic Materials for Flow Field
Plates
Schedule C Royalty Determination
Schedule D Conditions of Purchase
PART 2
PURCHASE AND SALE OF GRAPHITIC
MATERIALS AND GRAPHITIC COMPONENTS
[TEXT DELETED]
2.1 As part of the [TEXT DELETED], BPS will provide to Graftech a request for
quote ("RFQ") for its requirements of Graphitic Materials and, as
appropriate, Graphitic Components. Such RFQ will include BPS's estimated
weight, volume or quantity requirements for such Graphitic Materials or
Graphitic Components for the term of the envisioned Supply Arrangement,
as well as the specifications and quality requirements for such Graphitic
Materials or Graphitic Components. Graftech will use such RFQ to provide
to BPS a firm fixed pricing and delivery schedule for the supply of such
Graphitic Materials or Graphitic Components.
PURCHASE AND SALE AFTER [TEXT DELETED]
2.2 Promptly after a particular Product has passed the [TEXT DELETED], BPS
will provide Graftech written notice of such event. Subject to the terms
of this Agreement, within 90 days after any particular Product has passed
the [TEXT DELETED], the parties
(a) will, if such Product is a Graphitic Material, and
(b) may, at the option of BPS, if the Product is a Graphitic Component
enter into a Supply Arrangement in respect of the particular Product.
SUPPLY ARRANGEMENT TERMS
2.3 Such Supply Arrangement will be governed by the terms and conditions of
this Agreement and specify,
9
(a) the weight, quantity or volume of the Product agreed to be
purchased by BPS during
(i) the Initial Purchasing Period, or
(ii) the entire period of the Supply Arrangement;
(b) the agreed purchase price of the Product purchased;
(c) the Product Specifications and quality requirements;
(d) the term of the Supply Arrangement; and
(e) that the purchase and sale of the Product under such Supply
Arrangement is governed by the terms and conditions of this
Agreement.
EXCLUSIVE SUPPLIER OF GRAPHITIC MATERIALS
2.4 Subject to the right of BPS to acquire Graphitic Materials and Graphitic
Components from elsewhere for benchmarking purposes, so long as Graftech
is able to meet, on a consistent basis, BPS's requirements as to pricing,
delivery, quality, performance and service in respect of Graphitic
Materials or Graphitic Components for incorporation in PEM Fuel Cells and
PEM Fuel Cell Systems, BPS will acquire from Graftech
(a) all of its requirements for such Graphitic Materials, and
(b) 80% of its requirements for such Graphitic Components in
connection with BPS's development and manufacture of the [TEXT
DELETED] PEM Fuel Cell stack.
BPS INTENT RE: GRAPHITIC COMPONENTS
2.5 Except as otherwise provided in this Agreement and the Collaboration
Agreement and BPS's right to make, have made or manufacture Graphitic
Components for its own PEM Fuel Cell and PEM Fuel Cell Systems business,
it is the intent (but not the obligation) of BPS to acquire from Graftech
all of its requirements for Graphitic Components used in connection with
its development or manufacture of PEM Fuel Cells and PEM Fuel Cell
Systems.
FUTURE FORECASTS AND PRICING - GRAPHITIC MATERIALS AND GRAPHITIC COMPONENTS
2.6 Subject to the terms of this Agreement, except for those Products covered
by individual Supply Arrangements, future forecasts, pricing and purchase
of each Graphitic Material and Graphitic Component will be dealt with as
follows:
(a) commencing no later than 60 days before the expiry of the Initial
Purchasing Period under a Supply Arrangement, or such longer
period as set out in ss.2.3(a)(ii), and thereafter no later than
November 1 of each subsequent Year, BPS will furnish to Graftech a
rolling three-Year forecast of its Yearly requirements of
10
the Graphitic Material or the Graphitic Component, as the case may
be (the "Yearly Forecast"), which forecast will not be binding
upon BPS;
(b) within 30 days after receipt of such forecast, Graftech will
provide BPS in writing its firm fixed pricing and delivery
schedule (the "Pricing and Delivery Schedule") of the quantity or
volume of the Graphitic Material or the Graphitic Component, as
the case may be, forecast as required by BPS during the first Year
of such three-Year forecast;
(c) no later than 30 days after receipt of the Pricing and Delivery
Schedule for the Graphitic Material or the Graphitic Component, as
the case may be, BPS will provide Graftech with a written binding
commitment (the "Annual Commitment") to purchase a specified
quantity or volume of the Graphitic Material or the Graphitic
Component, as the case may be, during the first Year of the
three-Year Forecast, which commitment may vary from the forecast
given by BPS for such year;
(d) if BPS's quantity or volume or requirements of the Graphitic
Material or the Graphitic Component, as the case may be, described
in the Annual Commitment is different from BPS's forecast for the
first Year of its three-Year rolling forecast by more than 10%,
Graftech will no longer be bound by the Pricing and Delivery
Schedule but must, within 30 days after receipt of such Annual
Commitment, provide BPS with a new firm fixed pricing and delivery
schedule (the "Revised Pricing and Delivery Schedule") that takes
into account the difference;
(e) BPS will have 30 days after receipt of Graftech's Revised Pricing
and Delivery Schedule within which to accept or reject the same;
it being understood and agreed that BPS's failure to respond
within such 30 day period will be deemed to be a rejection of the
Revised Pricing and Delivery Schedule;
(f) if BPS rejects or is deemed to have rejected the Revised Pricing
and Delivery Schedule, the matter will be referred for dispute
resolution under Part 5; and
(g) BPS may, upon 30 days' written notice to Graftech, make changes to
the Annual Commitment ("Revised Annual Commitment") in which event
ss.(d), ss.(e) and ss.(f) will apply, MUTATIS MUTANDIS; provided,
however, that if Graftech, acting reasonably, does not provide a
Revised Pricing and Delivery Schedule for such Revised Annual
Commitment, this will not constitute an Event of Default or a
failure to meet BPS's Supplier Manual under ss.2.10(a).
FUTURE FORECASTS FOR INVESTMENT PLANNING
2.7 BPS will provide long-term forecasts of its requirements for Graphitic
Materials and Graphitic Components as requested by Graftech from time to
time to assist Graftech in its long-term investment planning. BPS will
provide forecasts for the time frame requested by Graftech to the extent
practicable.
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PROTOTYPE PRODUCT SALES
2.8 Notwithstanding ss.2.6 and ss.2.7 hereof, BPS will not be required to
submit any forecasts for Prototype Products and any sales of Prototype
Products by Graftech to BPS will be effected using BPS's standard
purchase order form ("Purchase Order"); provided, however, that sales of
Prototype Products will be governed by the terms of this Agreement.
MOST FAVOURED CUSTOMER
2.9 Notwithstanding anything in this Agreement to the contrary, if at any
time during the term of this Agreement Graftech sells or supplies, or
offers to sell or supply, to any other Person a like quantity of
Graphitic Materials and Graphitic Components with substantially similar
function and capability as those supplied to BPS at a price and terms
that are more favourable to such other Person than the price and terms
offered to BPS, Graftech will so inform BPS promptly. In the case where
in any [TEXT DELETED] period the price at which such Graphitic Materials
and Graphitic Components are sold to any other Person is [TEXT DELETED]
than the [TEXT DELETED] to BPS for a [TEXT DELETED] quantity of [TEXT
DELETED] Graphitic Materials and Graphitic Components with [TEXT DELETED]
and [TEXT DELETED] during such period, the [TEXT DELETED] by BPS to
Graftech for the Graphitic Materials and the Graphitic Components sold to
BPS during such period will be deemed to have been automatically [TEXT
DELETED] to that [TEXT DELETED] price from the date on which the price
for the Graphitic Materials and Graphitic Components was [TEXT DELETED]
to the other Person. In the case where the terms in a sale to such other
Person are more [TEXT DELETED] than the [TEXT DELETED] in a [TEXT
DELETED] to BPS, such [TEXT DELETED] of the [TEXT DELETED] to BPS will be
amended so that the more [TEXT DELETED] terms will apply to all [TEXT
DELETED] and [TEXT DELETED] between BPS and Graftech. The parties will
make such adjustments to payments or otherwise as may be necessary to
fulfil the intent of this ss.2.9.
BPS'S SUPPLIER MANUAL.
2.10 In evaluating whether or not Graftech is meeting BPS's requirements as to
delivery, quality and service, BPS will, subject to ss.3.1, utilize its
Supplier Manual in respect of which Graftech has not consented to in
writing. BPS will provide Graftech with and, upon written request from
Graftech, explain its then current criteria in respect of its Supplier
Manual; provided, however, that Graftech's inability to comply with any
material change to such Supplier Manual will not constitute an Event of
Default for purposes of this Agreement or any Supply Arrangement;
provided, however, that
(a) if Graftech has been meeting, for a minimum of [TEXT DELETED]
months, BPS's Supplier Manual requirements as materially changed
(even though not consented to in writing), it will be deemed to
have accepted such material change. If Graftech then fails to
meet such BPS's Supplier Manual requirements as materially
changed, excluding for purposes of this ss.2.10 any price-related
requirement of the Supplier Manual, including that set forth in
Section 5.5 thereof, or
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(b) if Graftech fails to meet BPS's Supplier Manual requirements as
presently existing or changed by agreement (where such change is
material), excluding for purposes of this ss.2.10 any
price-related requirement of the Suppliers Manual, including that
set forth in Section 5.5 thereof or
(c) if Graftech is in default of the Conditions of Purchase under any
Supply Arrangement or Purchase Order,
in respect of a particular Graphitic Material or Graphitic Component and such
failure continues for a period of [TEXT DELETED] months after the date Graftech
receives written notice from BPS of such failure, and provided such failure has
a material adverse effect on BPS's business or on the ability of Graftech to
materially perform its obligations under the Supply Arrangement for that
particular Graphitic Material or Graphitic Component, then Graftech will be
deemed to have granted to BPS, a perpetual, irrevocable, world-wide,
non-exclusive, royalty-bearing right and license (the "Supply Individual Default
License") sublicensable by BPS without restriction, to use all of the Graftech
IP to the extent reasonably necessary to develop, manufacture, make, have made,
use and sell the particular Graphitic Material or Graphitic Component that is
the subject of Graftech's failure to meet BPS's Supplier Manual requirements. In
such event, ss.2.4 will be inapplicable insofar as it relates to the particular
Graphitic Material or Graphitic Component. The grant of the Supply Individual
Default License will be without prejudice to any other remedies then available
to BPS against Graftech and such Supply Individual Default License includes the
right by BPS to disclose Graftech's Confidential Information to BPS's
sublicensees and subcontractors in connection with the production, use or sale
of such Graphitic Materials and Graphitic Component. Graftech will promptly,
upon request and from time to time, transfer to, and provide BPS with, all
relevant technology, information, training and technical assistance as may be
necessary to enable BPS to exercise its rights under the Supply Individual
Default License at a fee that reflects no more than the reasonable cost of
effecting such technology transfer, training and technical assistance,
(d) any dispute between BPS and Graftech with regard to any
price-related requirement of the Supplier Manual, including that
set forth in Section 5.5 thereof, will be resolved pursuant to the
dispute resolution process set forth in Part 5 hereof,
(e) to the extent any provision of the Supplier Manual is inconsistent
with any provision of this Agreement or the Collaboration
Agreement, the provisions of this Agreement or the Collaboration
Agreement, as the case may be, will govern, and
(f) Graftech will, from time to time, comply with all non-material
changes to BPS's Supplier Manual promptly after such changes have
been effected by BPS and communicated in writing to Graftech.
THIRD PARTY SALES
2.11 Except as otherwise set forth in this Agreement or the Collaboration
Agreement, the parties acknowledge and agree that BPS will not be
entitled to resell any Graphitic
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Material or Graphitic Component supplied to BPS pursuant to any Supply
Arrangement to any third party except where such Graphitic Material or Graphitic
Component is integrated into, or is part of, a MEA, PEM Fuel Cell or PEM Fuel
Cell System manufactured by, or on behalf of, BPS.
LIAISON PERSONNEL
2.12 Each of Graftech and BPS hereby covenant and agree to designate a
responsible employee of managerial level to act as a liaison between BPS
and Graftech for the supply of Graphitic Materials and Graphitic
Components to BPS.
DEVELOPMENT EXCEPTIONS
2.13 Notwithstanding anything to the contrary contained in this Agreement or
the Collaboration Agreement,
(a) Graftech and its Affiliates may manufacture, make, have made, sell
or supply non-natural graphite materials, and
(b) each of the parties and each of its Affiliates may collaborate,
research, develop, manufacture, make, have made, sell or supply
devices, subsystems, materials or components whose primary
function relates to fuel storage devices, power storage devices
(such as supercapacitors and lithium-ion batteries), electronic
thermal management components (such as heat sinks, heat spreaders
and thermal interfaces), electromagnetic interference shielding,
radio frequency interference shielding and heat management devices
(such as radiators and components relating to reformers) strictly
for such primary function,
in each case regardless of whether or not such devices, subsystems, materials or
components are for use in PEM Fuel Cells or PEM Fuel Cell Systems; provided,
however, that for greater certainty, this provision will not give any rights to
either party or either party's Affiliates to, and each party will ensure that
its Affiliates will not, use or disclose the Intellectual Property or
Confidential Information of the other party.
EXISTING SUPPLY ARRANGEMENT
2.14 Attached hereto as Schedule B is the Supply Arrangement for GRAFCELL(TM)
advanced flexible Graphitic Materials for Flow Field Plates for PEM Fuel
Cells.
PART 3
CONDITIONS OF PURCHASE
CONDITIONS OF PURCHASE
3.1 BPS and Graftech agree that all sales of Graphitic Materials and
Graphitic Components pursuant to this Agreement will be subject to the
terms of this Agreement including the Conditions of Purchase, but the
terms and conditions set out in Appendix V of the
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Supplier Manual will not govern such sales. For greater certainty, if and
to the extent that any of the terms of the Conditions of Purchase is
inconsistent with any provision of this Agreement, such provision of this
Agreement will prevail.
PART 4
CONFIDENTIALITY
NON-DISCLOSURE
4.1 Each party (the "Recipient") that is the recipient of the Confidential
Information disclosed to it by the disclosing party (the "Disclosing
Party"), at all times during the Development Period (as defined in the
Collaboration Agreement) and the Supply Agreement and for a period of ten
years next after the expiry or earlier termination of such Development
Period or the Supply Agreement, whichever is later,
(a) will hold, and will ensure that each of its Affiliates, directors,
officers, employees and licensees, including sublicenses
(collectively, the "Recipient's Agents") will hold, the
Confidential Information of the Disclosing Party in confidence and
in trust for the Disclosing Party,
(b) will not, and will ensure that the Recipient's Agents will not,
directly or indirectly, disclose, use, reproduce or otherwise
exploit the Confidential Information of the Disclosing Party or
permit the same to be disclosed, used, reproduced or otherwise
exploited, except to the extent necessary for
(i) the performance of the work under the SOWs (as defined in
the Collaboration Agreement),
(ii) the legitimate practice of the Graftech/BPS License, the
BPS/Graftech License and the Supply Individual Default
License, as the case may be,
(iii) the furtherance of the Collaboration Agreement; or
(iv) the performance of the work under this Agreement;
(c) will only disclose the Confidential Information of the Disclosing
Party to the Recipient's Agents
(i) with a definable need to know such information in
connection with the matters referred to in ss.(b), as the
case may be, and
(ii) who are informed of the confidential nature of such
information, and
(d) will, and will ensure that each of the Recipient's Agents will,
protect the Confidential Information of the Disclosing Party
against wrongful disclosure, misuse, espionage and theft.
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EXCEPTIONS
4.2 This Agreement imposes no obligation on the Recipient with respect to the
Confidential Information of the Disclosing Party,
(a) which is or becomes generally available to the public through no
fault of the Recipient or the Recipient's Agents,
(b) which was legitimately possessed by the Recipient or the
Recipient's Agents before its disclosure by the Disclosing Party
to the Recipient or the Recipient's Agents, as evidenced by
competent proof,
(c) which is independently obtained by the Recipient or the
Recipient's Agents from a source which was not, at the relevant
time, prohibited from disclosing such information to the Recipient
or the Recipient's Agents under any legal, contractual or
fiduciary obligation,
(d) which is the same as information that is developed by the
Recipient independently without reference to the Confidential
Information of the Disclosing Party, as evidenced by competent
proof,
(e) which, subject to ss.4.3, is required to be disclosed by
applicable law or legal process, or
(f) to the extent and in the manner approved by the Disclosing Party
in writing.
LEGAL REQUIREMENT TO DISCLOSE
4.3 If the Recipient is required by applicable law, regulation or legal
process to disclose any of the Confidential Information of the Disclosing
Party, the Recipient will notify the Disclosing Party promptly so that
the Disclosing Party may seek a protective order or other appropriate
remedy or waive compliance with the terms of this Agreement. If no such
protective order or other remedy is obtained or the Disclosing Party does
not waive compliance with the terms of this Agreement, the Recipient
(a) will furnish only that portion of the Confidential Information of
the Disclosing Party which the Recipient is advised by counsel is
legally required to be disclosed, and
(b) will exercise all reasonable efforts to obtain reliable assurances
that confidential treatment will be accorded such Confidential
Information.
NO SOLICITATION
4.4 Neither party will, both during the term of this Agreement and the
Collaboration Agreement, and for a period of two years next after the
expiry or earlier termination of this Agreement or the Collaboration
Agreement, whichever is later, solicit for employment any individual who
is, at the time of such solicitation, employed by the other
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party or its Affiliates nor will such party, directly or indirectly,
induce any such individual to leave his or her employment. Nothing in
this ss.4.4 will restrict either party from employing any individual that
is the other party's employee so long as no solicitation (other than a
general advertisement not directed to such individual) has been made to
such individual by or on behalf of such party.
REASONABLE RESTRICTIONS
4.5 Each party agrees that the restrictions contained in this Part 4 are
reasonable for the protection of the respective legitimate business
interests of the parties.
PUBLICITY
4.6 The parties agree to co-operate with each other in the preparation and
distribution of a press release regarding the execution of this
Agreement. No public release or announcement concerning the transactions
contemplated hereby will be issued by any party without the prior consent
of the other parties (which consent will not be unreasonably withheld),
except as such release or announcement may be required by law or the
rules or regulations of any Canadian, United States or other foreign
securities exchange, in which case the party required to make the release
or announcement will allow the other party reasonable time to comment on
such release or announcement in advance of such issuance.
PART 5
DISPUTE RESOLUTION
INITIATION OF PROCESS
5.1 If at any time there is a dispute, controversy or claim (a "Dispute")
between the parties hereto with respect to any matter arising out of or
relating to this Agreement, then the party that wishes to initiate
resolution of the Dispute must give written notice (the "Dispute Notice")
to the other party and to the Committee, requiring that such Dispute be
resolved pursuant to this Part 5.
COMMITTEE INVOLVEMENT
5.2 If a Dispute Notice is given, either party may, in the first instance,
ask the Committee forthwith to initiate discussions with a view to
settling the Dispute. A resolution reached by the Committee and
communicated by it in writing to the parties will be binding on the
parties and will be implemented.
SENIOR OFFICER INVOLVEMENT
5.3 If the Dispute is not resolved between the parties within 30 days after
the date of the Dispute Notice, either party may ask the Senior Officer
of each of the parties to forthwith initiate discussions with a view to
settling the Dispute, unless the parties agree in writing to extend such
30-day period for resolution of the Dispute by the Committee. Once the
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Dispute is referred to the Senior Officers, the Committee will no longer
have jurisdiction to resolve the Dispute. A resolution reached by such
Senior Officers and communicated by them in writing to the parties will
be final and binding upon the parties and will be implemented.
ARBITRATION
5.4 If the Dispute is not resolved between the parties within 30 days after
its referral to the Senior Officers, either party will be entitled to
refer the Dispute to arbitration in accordance with the commercial
arbitration rules (the "Rules") of the American Arbitration Association,
as modified by the provisions herein, unless the parties agree in writing
to extend such 30-day period for resolution of the Dispute by the Senior
Officers.
IMPLEMENTATION
5.5 Each party will accept as final and binding, and proceed in good faith
diligently to implement, the award or decision of the arbitrator or
arbitrators, as the case may be, on an arbitration pursuant to ss.5.4.
Judgment upon an arbitration award may be rendered in any court of
competent jurisdiction or application may be made to any such court by
either party for judicial acceptance or an order of enforcement of an
arbitration award, as the case may be. Any arbitration award may be
supported by a decree of specific performance or other appropriate
injunctive relief from a court of competent jurisdiction.
VENUE OF ARBITRATION
5.6 All arbitration proceedings will be conducted in New York, New York or in
such other place as BPS and Graftech may agree.
NON-APPLICABILITY OF PART 5
5.7 This Part 5 will not apply to Part 4 or the grant of provisional
remedies, including injunctions, restraining orders and specific
performance, and each of BPS and Graftech reserves its right to commence
any action under Part 4 or seek such remedies from a court of competent
jurisdiction.
PART 6
TERM AND TERMINATION
TERM
6.1 Subject to earlier termination as provided in this Part 6, the initial
term of this Agreement will be 15 years commencing on the Effective Date
("Initial Term"). Thereafter, unless otherwise terminated as provided
herein, this Agreement will be automatically renewed for additional
periods of three years each (each a "Renewal Term") unless either party
gives written notice to the other, at least six months before the expiry
of the then current term of this Agreement, to terminate this Agreement.
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TERMINATION
6.2 This Agreement and, subject to ss.(a), any Supply Arrangement, may be
terminated
(a) by BPS, upon six months' notice to Graftech, if BPS determines
that, through technological advances or otherwise, Graphitic
Materials or Graphitic Components or technology in respect thereof
are no longer viable for use in connection with the development or
manufacture by BPS of PEM Fuel Cells; provided, however, that BPS
may not terminate any then existing Supply Arrangement by reason
only of this ss.(a),
(b) in the case of this Agreement as a whole, by either party upon
written notice to the other party if the other party becomes the
subject of an Event of Default, and
(c) in the case of any particular Supply Arrangement, by either party
upon written notice to the other party if the other party becomes
the subject of an Event of Default under that particular Supply
Arrangement.
6.3 In the event that
(a) BPS terminates this Agreement pursuant to ss.6.2(a), BPS will have
no liability to Graftech as a result of such termination,
(b) BPS terminates this Agreement pursuant to ss.6.2(b),
(i) the rights of BPS and Graftech to independently practice
and license the Joint Arising IP pursuant to ss.3.4 of the
Collaboration Agreement will remain intact,
(ii) BPS may terminate the BPS/Graftech License; provided,
however, that notwithstanding the foregoing, Graftech will
be entitled to practice the BPS Licensed Technology under
the BPS/Graftech License (on the royalty basis set forth in
ss.3.6 of the Collaboration Agreement) solely to fulfill
any supply arrangements with third parties existing as of
the date of termination of this Agreement, but in no event
will Graftech practice the BPS Licensed Technology under
this ss.(ii) for more than three years after the date that
the BPS/Graftech License would, but for this proviso, have
been terminated,
(iii) the Graftech/BPS License will become a perpetual,
irrevocable, world-wide, non-exclusive, royalty-bearing
right and license, sublicensable by BPS without
restriction, except that the provisions of ss.3.5(c),ss.(d)
and ss.(e) of the Collaboration Agreement will not apply
(other than in respect of IP arising before the termination
of this Agreement pursuant to this ss.(b)), to practice the
Graftech IP to the extent reasonably necessary to enable
BPS to develop, manufacture, make, have made, use and sell
Graphitic Components and manufacture, make, have made and
use Graphitic Materials required to make such Graphitic
Components. If the
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parties cannot agree on such royalty within 30 days after
the subject is first discussed, the matter will be referred
to the dispute resolution process set forth in Part 5. The
Graftech/BPS License will also include the right by BPS to
disclose Graftech's Confidential Information to BPS's
sublicensees and subcontractors in connection with the
production and use of Graphitic Materials and Graphitic
Components. Graftech will promptly, upon request, and from
time to time, transfer to, and provide BPS with, all
relevant technology, information, training and technical
assistance as may be necessary to enable BPS to exercise
its rights hereunder at a fee that reflects no more than
the reasonable cost of effecting such technology transfer,
training and technical assistance,
(iv) except as otherwise permitted under ss.2.7, ss.2.9 and
ss.2.13 of the Collaboration Agreement and ss.2.13 of this
Agreement, Graftech will not, and will ensure that its
Affiliates will not, directly or indirectly, until two
years after the expiry or earlier termination of the
Development,
(A) collaborate with third parties (including Graftech's
Affiliates, other than its wholly-owned
Subsidiaries) in the research or development of
Graphitic Materials or Graphitic Components for PEM
Fuel Cells or PEM Fuel Cell Systems, or
(B) license to any third party any of the Graftech IP
concerning Graphitic Materials or Graphitic
Components for use in PEM Fuel Cells or PEM Fuel
Cell Systems,
(v) subject to ss.2.13 of this Agreement and ss.2.13 of the
Collaboration Agreement, Graftech will not, and will ensure
that its Affiliates will not, directly or indirectly,
research, develop, manufacture, make, have made, sell or
supply PEM Fuel Cells, PEM Fuel Cell Systems or MEAs until
five years after the Development has ended or this
Agreement has terminated, whichever is later, and
(vi) such termination will be without prejudice to any other
rights or remedies then available to BPS,
(c) BPS terminates a Supply Arrangement pursuant to ss.6.2(c), the
Supply Individual Default License will automatically come into
effect with respect to the particular Graphitic Material or
Graphitic Component that was subject of the terminated Supply
Arrangement,
(d) Graftech terminates this Agreement pursuant to ss.6.2(b),
(i) the rights of BPS and Graftech to independently practice
and license the Joint Arising IP pursuant to ss.3.4 of the
Collaboration Agreement will remain intact,
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(ii) Graftech may terminate the Graftech/BPS License to the
extent it has not become irrevocable under this Agreement
or the Collaboration Agreement; provided, however, that to
the extent that the Graftech/BPS License has not become
irrevocable, BPS will be entitled to practice the Graftech
Licensed Technology under the Graftech/BPS License solely
to fulfill any supply arrangements with third parties
existing at the date of termination of this Agreement, but
in no event will BPS practice the Graftech Licensed
Technology under this ss.(d)(ii) for more than three years
after the date that the Graftech/BPS License would, but for
this proviso, have been terminated,
(iii) the BPS/Graftech License will remain intact and become
irrevocable and fully sublicensable without restriction,
except that ss.3.6(k), ss.(l) and ss.(m) of the
Collaboration Agreement will not apply (other than in
respect of IP arising before the termination of this
Agreement pursuant to this ss.(d)),
(iv) except as otherwise permitted under ss.2.7, ss.2.9 and
ss.2.13 of the Collaboration Agreement and ss. 2.13 of this
Agreement, BPS will not, and will ensure that its
Affiliates will not, directly or indirectly, until two
years after the expiry or earlier termination of the
Development,
(A) collaborate with third parties (including BPS's
Affiliates other, than its wholly-owned
Subsidiaries) in the research or development of
Graphitic Materials or Graphitic Components for PEM
Fuel Cells or PEM Fuel Cell Systems, or
(B) license to any third party (other than those Persons
listed in ss.(a), ss.(b) and ss.(d) of the
definition of BPS Permitted Licensees) its component
manufacturing technology concerning Graphitic
Components for use in PEM Fuel Cells or PEM Fuel
Cell Systems, and
(v) such termination will be without prejudice to any other
rights or remedies then available to Graftech,
(e) Graftech terminates a Supply Arrangement pursuant to ss.6.2(c),
Graftech may terminate the Graftech/BPS License to the extent that
it has not become irrevocable under this Agreement or the
Collaboration Agreement; provided, however, that to the extent
that the Graftech/BPS License has not become irrevocable BPS will
be entitled to practice the Graftech Licensed Technology under the
Graftech/BPS License solely to fulfill any supply arrangements
with third parties existing at the date of termination of such
Supply Arrangement, but in no event will BPS practice the Graftech
Licensed Technology under this ss.(e) for more than three years
after the date that the Graftech/BPS License would, but for this
proviso, have been terminated.
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LIABILITY LIMITED
6.4 Except as provided in ss.6.5 of this Agreement and ss.11 of the
Conditions of Purchase, the liability of each party to the other for
damages for any cause whatsoever, regardless of the form of action,
whether in contract or in tort, including negligence, that accrues during
the term of this Agreement or a Supply Arrangement, will be limited to
direct damages suffered by the damaged party. Neither party will be
liable to the other for any special, indirect, punitive, or consequential
damages, including lost profits, lost revenues, damage to reputation or
goodwill, failure to realize expected savings, treble damages or other
such commercial or economic losses of any kind.
EXCLUSIONS TO LIMITED LIABILITY
6.5 ss.6.4 will not apply to
(a) any loss, claim, demand, damage or cost arising as a result of the
infringement or misuse by one party of any Intellectual Property
of the other, or
(b) any unauthorized disclosure or use by a party hereto of any of the
other party's Confidential Information in violation of this
Agreement.
REMEDIES
6.6 If a party is in default of any term or condition of this Agreement, the
other party to this Agreement will be entitled to exercise all rights and
remedies available to it at law, in equity or under this Agreement,
whether or not such default constitutes an Event of Default.
PART 7
GENERAL
AMENDMENTS
7.1 No amendment, modification, supplement, termination or waiver of any
provision of this Agreement will be effective unless in writing signed by
the parties and then only in the specific instance and for the specific
purpose given.
FURTHER ASSURANCES
7.2 The parties will execute such further assurances and other documents and
instruments and do such further and other things as may be necessary to
implement and carry out the intent of this Agreement.
ENTIRE AGREEMENT
7.3 The provisions of this Agreement and the Collaboration Agreement
constitute the entire agreement among the parties hereto, and supersede
all previous expectations,
22
understandings, communications, representations and agreements whether
verbal or written between the parties, concerning the subject matter
hereof.
NOTICE
7.4 Every notice, request, demand, direction or other communication (each,
for the purposes of ss.7.4, ss.7.5 and ss.7.6, a "Notice") required or
permitted to be given pursuant to this Agreement will be deemed to be
well and sufficiently given if in writing and delivered by hand
(including recognized overnight courier service) or transmitted by
facsimile, in each case addressed as follows:
(a) if to BPS at:
9000 Glenlyon Parkway
Burnaby, British Columbia
Canada V5J 5J9
Attention: Corporate Secretary
Facsimile: (604) 412-3131
and,
(b) if to Graftech at:
11709 Madison Avenue Lakewood,
Ohio USA 44107
Attention: President
Facsimile: (216) 529-3713
with a copy to Graftech's Vice President and General Counsel at the same
address and facsimile number;
or to such other address or transmission receiving station as is specified by
the particular party by Notice to the others.
DEEMED RECEIPT
7.5 Any Notice delivered or sent as aforesaid will be deemed conclusively to
have been effectively given and received on the day Notice was delivered
or sent as aforesaid if it was delivered or sent on a day that was a
Business Day or on the next day that is a Business Day if it was
delivered or sent on a day that was not a Business Day.
CHANGE OF ADDRESS
7.6 A party may at any time, by Notice to the others, change its address to
some no less convenient address and will so change its address whenever
its address ceases to be suitable for delivery by hand.
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BINDING EFFECT
7.7 This Agreement will enure to the benefit of and be binding upon the
parties and their respective successors and permitted assigns.
GOVERNING LAW
7.8 This Agreement will be deemed to have been made in British Columbia,
Canada and the construction, validity and performance of this Agreement
will be governed in all respects by the laws of British Columbia, and
applicable laws of Canada. The application of the provisions of the
United Nations Convention on Contracts for the International Sale of
Goods are hereby excluded.
ATTORNMENT
7.9 Except as provided in Part 5, each party irrevocably attorns to the
exclusive jurisdiction of the courts of British Columbia, Canada and all
courts having appellate jurisdiction thereover in respect of any
proceeding arising out of or relating to this Agreement.
FORCE MAJEURE
7.10 No party will be liable to the other for default or delay in the
performance of its obligations under this Agreement if such default or
delay is caused by fire, strike, riot, war, act of God, delay of
carriers, labour disputes, governmental orders or regulation, complete or
partial shutdown of plant by reason of inability to obtain sufficient raw
material or power, or any other occurrence beyond the reasonable control
of such party. The party whose performance is prevented by any such
occurrence will notify the other party of the same in writing as soon as
it is reasonably possible after the commencement thereof, will provide
the other party with full written particulars of such occurrence and
attempts made to remedy the same, will use commercially reasonable
efforts to remedy such occurrence with all reasonable dispatch and, upon
cessation of the occurrence, will give prompt written notice to the other
parties of the same. Neither BPS nor Graftech will be required to make
any concession or grant any demand or request to bring to an end to any
strike or other concerted action of workers. In any such circumstance
which only partially reduces Graftech's ability to produce or deliver
Graphitic Materials or Graphitic Components, BPS will have production
priority for its requirements.
SEVERABILITY
7.11 If any provision contained in this Agreement is found by any court or
arbitrator for any reason, to be invalid, illegal or unenforceable in any
respect in any jurisdiction,
(a) the validity, legality and enforceability of such provision will
not in any way be affected or impaired thereby in any other
jurisdiction and the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be
affected or impaired thereby, unless in either case as a result of
such determination this Agreement would fail in its essential
purpose, and
24
(b) the parties will use their best efforts to substitute for any
provision that is invalid, illegal or unenforceable in any
jurisdiction a valid and enforceable provision which achieves to
the greatest extent possible the economic, legal and commercial
objectives of such invalid, illegal or unenforceable provision of
this Agreement and, failing the agreement of the parties on such a
substitution within 30 days after the finding of the court or
arbitrator, either party may refer the matter for dispute
resolution under Part 5.
COUNTERPARTS
7.12 This Agreement may be executed in counterparts or by facsimile, each of
which will together, for all purposes, constitute one and the same
instrument, binding on the parties, and each of which will together be
deemed to be an original, notwithstanding that all parties are not
signatories to the same counterpart or facsimile.
NO ASSIGNMENT
7.13 No party may assign any right, benefit or interest in this Agreement
without the written consent of each other party, such consent not to be
unreasonably withheld, and any purported assignment without such consent
will be void.
SURVIVAL
7.14 All rights and obligations of the parties occurring before the effective
date of termination of this Agreement and all rights and obligations
expressly stated to continue after, or accrue as a result of, the
termination of this Agreement are separate and distinct rights and
obligations binding on the parties, will survive its termination and will
continue in full force and effect and nothing herein will affect the
enforceability of such provisions. For greater certainty, the premature
termination of this Agreement will not affect the rights and obligations
of any party under ss.2.10, ss.2.13, Part 3, Part 4, Part 5, Part 6 and
Part 7. All other provisions will expire except to enforce rights arising
prior to termination.
NO PARTNERSHIP
7.15 Nothing herein will or will be deemed to create any partnership or joint
venture between the parties or to give either party any right or
authority to act as the agent of or to pledge the credit of the other
party.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date first above written.
GRAFTECH INC.
By:/S/ JOHN J. WETULA
----------------------------------
Its: PRESIDENT
This is the execution page for Graftech Inc. for the Master Supply Agreement,
made effective June 5, 2001, between Ballard Power Systems Inc. and Graftech
Inc.
26
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date first above written.
BALLARD POWER SYSTEMS INC.
By: /s/ LAYLE K. SMITH
----------------------------------
Its: PRESIDENT & CHIEF OPERATING
OFFICER
By: /S/ NOORDIN NANJI
----------------------------------
Its: VP STRATEGIC DEVELOPMENT &
CORPORATE SECRETARY
---------------------------------
This is the execution page for Ballard Power Systems Inc. for the Master Supply
Agreement, made effective June 5, 2001, between Ballard Power Systems Inc. and
Graftech Inc.
27
SCHEDULE A
SUPPLIER MANUAL
[intentionally omitted]
A-1
SCHEDULE B
SUPPLY ARRANGEMENT
GRAPHITIC MATERIALS FOR FLOW FIELD PLATES
- --------------------------------------------------------------------------------------------------------------
MATERIAL SPECIFICATION |TITLE
|
|Flexible Graphite [TEXT DELETED] Material [TEXT
|DELETED]
- ------------------------------------------------------------|-------------------------------------------------
AUTHOR |DATE |APPROVED |DATE
| | |
Author: M. SEXSMITH |Date: JULY 20, 1999 |M. Sexsmith |12, July, 1999
- --------------------------------------------------------------------------------------------------------------
1. Scope
1.1 This specification covers flexible graphite material supplied by
UCAR as blend [TEXT DELETED]. The Specification covers several
possible thicknesses and area weights
2. Applicable Documents
2.1 American Society for Testing and Materials (ASTM)
2.1.1. -[TEXT DELETED] [TEXT DELETED] Measurement Technique
2.1.2. -[TEXT DELETED] [TEXT DELETED] Measurement
2.1.3. -[TEXT DELETED] [TEXT DELETED] and [TEXT DELETED] of Gasket
Materials
3. Requirements
3.1 PRECEDENCE - In the event of any conflict between the requirements
of this specification referenced documents, this specification
shall govern.
3.2 VISUAL REQUIREMENTS - The material shall have no gross physical
defects including [TEXT DELETED], [TEXT DELETED], [TEXT DELETED]
or [TEXT DELETED] on the surface. There may not be more than [TEXT
DELETED] between [TEXT DELETED] and [TEXT DELETED] in diameter in
any [TEXT DELETED] by [TEXT DELETED] area. There shall be no [TEXT
DELETED] more than [TEXT DELETED] diameter in the material.
3.3 CHEMICAL REQUIREMENTS - All flexible graphite material shall
conform to the following requirements.
-------------- ------------- ----------- ------------------
Property Specification Tolerance Test Method
-------------- ------------- ----------- ------------------
[TEXT DELETED] [TEXT [TEXT [TEXT DELETED]
DELETED] DELETED]
-------------- ------------- ---------- ------------------
[TEXT DELETED] [TEXT [TEXT [TEXT DELETED]
DELETED] DELETED]
-------------- ------------- ---------- ------------------
[TEXT DELETED] [TEXT [TEXT [TEXT DELETED]
DELETED] DELETED]
-------------- ------------- ---------- ------------------
3.4 PHYSICAL PROPERTIES - Shall conform to the following requirements.
B-1
- ---------------- ----------- ----------- ---------- ---------------------
[TEXT DELETED] [TEXT [TEXT [TEXT See Section 4.5.2.1
gm/cm2 DELETED] DELETED] DELETED]
- ---------------- ----------- ----------- ---------- ---------------------
[TEXT DELETED] [TEXT [TEXT [TEXT
DELETED] DELETED] DELETED]
- ---------------- ----------- ----------- ---------- ---------------------
[TEXT DELETED] [TEXT [TEXT [TEXT See Section 4.5.2.3
DELETED] DELETED] DELETED]
- ---------------- ----------- ----------- ---------- ---------------------
[TEXT DELETED] [TEXT [TEXT [TEXT See Section 4.5.2.3
DELETED] DELETED] DELETED]
- ---------------- ----------- ----------- ---------- ---------------------
[TEXT DELETED] [TEXT [TEXT [TEXT See Section 4.5.2.2
DELETED] DELETED] DELETED]
- ---------------- ----------- ----------- ---------- ---------------------
[TEXT DELETED] [TEXT [TEXT [TEXT See Section 4.5.2.4
DELETED] DELETED] DELETED]
- ---------------- ----------- ----------- ---------- ---------------------
[TEXT DELETED] [TEXT [TEXT [TEXT See Section 4.5.2.4
DELETED] DELETED] DELETED]
- ---------------- ----------- ----------- ---------- ---------------------
3.5 DIMENSIONAL REQUIREMENTS - Plates produced from this material
shall conform to the dimensions specified on the relevant part
drawing. On occasion Ballard may request material to be sent for
testing purposes only that does not have the dimensions listed in
this document. The results of tests requiring specific dimensions
will not be considered to be requirements but should be performed
and included in the Certificate of Compliance. Such data should be
labeled as such.
4. Quality Assurance Provisions
4.1 RESPONSIBILITY FOR INSPECTION - Unless otherwise specified, the
supplier is responsible for the performance of all inspections
specified in Section 3. The supplier may use their own, or any
other facility suitable, for the performance of the inspections
specified therein.
4.2 QUALITY VERIFICATION - Ballard Power Systems Inc. will have the
right to subject any requested lot of material to any of the
inspection requirements specified to verify that the lot will
comply with the requirements specified herein.
4.3 PROCESS CHANGE NOTIFICATION - The supplier shall provide advance
information in writing concerning any changes in process or
preservations from the product previously approved. Approval to
ship product incorporating changes shall be dependent upon
Ballard's evaluation that these changes do not violate this
specification or the intended use of the product. Ballard Power
Systems Inc. reserves the right to perform a qualification
inspection if necessary.
4.4 CERTIFICATE OF COMPLIANCE - The supplier is required to provide a
certificate of compliance with data for each lot number of
material. Failure to supply a certificate may be cause for
rejection except as noted in section 3.4. the supplier is required
to provide the following data:
4.4.1 Material Lot Number, Purchase Order Number and BPS Part
Number.
4.4.2. Chemical Analysis (see Section 3.2).
4.4.3. Physical Property Inspection Data (see Section 3.3).
B-2
4.5. Methods of Inspection
4.5.1. CHEMICAL REQUIREMENTS INSPECTION - A chemical analysis
shall be performed on each lot of material. The analysis
shall conform to the requirements of Section 3.2.
4.5.2. PHYSICAL PROPERTY INSPECTION - The physical tests shall be
performed according to the following methods
4.5.2.1 [TEXT DELETED]- A sample of the [TEXT DELETED] material
shall be [TEXT DELETED] to a known [TEXT DELETED] and [TEXT
DELETED] and [TEXT DELETED].
4.5.2.2 [TEXT DELETED] - [TEXT DELETED] samples [TEXT DELETED] by
[TEXT DELETED] are [TEXT DELETED] from [TEXT DELETED] on the [TEXT
DELETED]. Each of the samples is placed in the [TEXT DELETED] and
[TEXT DELETED] for [TEXT DELETED]. The test parameters are:
-------------------- ----------------- --------------- -----------
Test Condition Specification Tolerance Accuracy
-------------------- ----------------- --------------- -----------
[TEXT DELETED] Load [TEXT DELETED] [TEXT [TEXT
DELETED] DELETED]
-------------------- ----------------- --------------- -----------
Test Current [TEXT DELETED] [TEXT [TEXT
DELETED] DELETED]
-------------------- ----------------- --------------- -----------
[TEXT DELETED] [TEXT DELETED] [TEXT [TEXT
DELETED] DELETED]
-------------------- ----------------- --------------- -----------
4.5.2.3 [TEXT DELETED] STRENGTH - A sheet of the material is [TEXT
DELETED] to the [TEXT DELETED]. [TEXT DELETED] samples of
specified size are [TEXT DELETED] from a sample component in [TEXT
DELETED] from each other. The samples are tested according to the
requirements of [TEXT DELETED] according to the following test
parameters. The ultimate flexural load shall exceed the specified
limit and the [TEXT DELETED] at the [TEXT DELETED] shall exceed
the specified limit.
--------------------- --------------- -------------- ----------------
Test Condition Specification Tolerance Accuracy
--------------------- --------------- -------------- ----------------
[TEXT DELETED] [TEXT DELETED] [TEXT DELETED] [TEXT DELETED]
--------------------- --------------- -------------- ----------------
Beam Length [TEXT DELETED] [TEXT DELETED] [TEXT DELETED]
--------------------- --------------- -------------- ----------------
Beam Width [TEXT DELETED] [TEXT DELETED] [TEXT DELETED]
--------------------- --------------- -------------- ----------------
Beam Thickness [TEXT DELETED] [TEXT DELETED] [TEXT DELETED]
--------------------- --------------- -------------- ----------------
Support and Load Pins [TEXT DELETED] [TEXT DELETED] [TEXT DELETED]
--------------------- --------------- -------------- ----------------
4.5.2.4 [TEXT DELETED] - A piece of material is tested according
to [TEXT DELETED]. The test conditions are given in the following
table
--------------- ----------------- ---------------
Penetrator Preload Total Load
--------------- ----------------- ---------------
[TEXT DELETED] [TEXT DELETED] [TEXT DELETED]
--------------- ----------------- ---------------
5. Packaging
5.1 DOCUMENTATION - A packing list and certificate of compliance will
accompany each
B-3
shipment. The packing list will contain information as shown in
Section 5.2. The certificate of compliance will contain
information as shown in Section 4.4.
6. Revision History
6.1 PA ECR 99-00172-00
6.2 ECN 99-00179-00 July 7, 1999 Initial Release
6.3 Change all references to Grafoil to flexible graphite (including
document title), updated section 3.3 to include [TEXT DELETED],
and updated [TEXT DELETED] numbers. 02/09/99 [TEXT DELETED].
B-4
SUPPLY CHAIN FORECAST RELEASE MARCH 19/01 (UNOFFICIAL)
- ------------- ------- ------ -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- --------
Month Jan Feb Mar Apr May Jun July Aug Sep Oct Nov Dec Total
- ------------- ------- ------ -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- --------
- ---------------------------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- --------
[TEXT DELETED] pieces [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT
DELETED] DELETED] DELETED] DELETED] DELETED] DELETED] DELETED] DELETED] DELETED] DELETED] DELETED]
- ---------------------------- -------- -------- -------- -------- -------- -------- ----------------------------------- --------
[TEXT DELETED] pieces [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT [TEXT
DELETED] DELETED] DELETED] DELETED] DELETED] DELETED] DELETED] DELETED] DELETED] DELETED] DELETED]
- ---------------------------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- --------
B-5
UCAR
UCAR CARBON COMPANY INC.
P.O. Box 94637 Cleveland, Ohio 44101 U.S.A.
Ballard Power Systems Inc. Date 08/03/99
9000 Glenlyon Parkway
Burnby, BC Quotation Number: 99G1203
Canada V5J 5J9
Inquiry Number:
Attn: V. Totten
In response to your inquiry, we are pleased to quote as follows.
============= =============== ====================================================================== ============================
ITEM QUANTITY DESCRIPTION PRICE
- ------------- --------------- ---------------------------------------------------------------------- ----------------------------
"GRAFOIL" Products
Per Ballard Power Systems Supply Agreement
Schedule B provided 7/29/1999.
1 Volumes [TEXT DELETED] mg/cm2, [TEXT DELETED] thick x [TEXT DELETED] x [TEXT $[TEXT DELETED]/ea
Per [TEXT DELETED] [TEXT DELETED]
DELETED]
2 " [TEXT DELETED] mg/cm2, [TEXT DELETED] thick x [TEXT DELETED] x [TEXT $[TEXT DELETED]/ea
DELETED]
3 " [TEXT DELETED] thk x [TEXT DELETED] x [TEXT DELETED] [TEXT DELETED] $[TEXT DELETED]/ea
4 " [TEXT DELETED] mg/cm2, [TEXT DELETED] thick x [TEXT DELETED] x [TEXT $[TEXT DELETED]/ea
DELETED]
5 " [TEXT DELETED] mg/cm2, [TEXT DELETED] thk x [TEXT DELETED] x [TEXT $[TEXT DELETED]/rl
DELETED] on [TEXT DELETED].
*SEE PARAGRAPH 1 ON REVERSE SIDE
============= =============== ====================================================================== ============================
Delivery Point: FCA Factory - Cleveland, Ohio
Terms of Payment: Date Draft 30 Days
Estimated Time of Shipment From Plant: As Required
This date will be confirmed upon receipt of order. If it is
unsatisfactory please let us know.
The sale of the products described herein shall be governed by the
terms and conditions contained in any written contract currently in
effect between Buyer and Seller covering such sale. If there is no such
contract, then Seller hereby offers to sell such product to Buyer only
upon the terms set forth herein, including those on the reverse side of
this document.
This quotation is subject to acceptance within (30) days from the date
hereof.
Thank you for this inquiry. Be assured your order will receive our
prompt attention.
cc: P. Calarco UCAR
J.J. Gough UCAR Very truly yours,
MH. Burns UCAR /s/ John R. Smelko
B-6
UCAR
UCAR CARBON COMPANY INC.
P.O. Box 94637 Cleveland, Ohio 44101 U.S.A.
Ballard Power Systems Inc. Date 08/03/99
9000 Glenlyon Parkway
Burnaby, BC Quotation Number: 99G1203
Canada V5J 5J9
Inquiry Number:
Attn: V. Totten
In response to your inquiry, we are pleased to quote as follows.
============= =============== ====================================================================== ============================
ITEM QUANTITY DESCRIPTION PRICE
- ------------- --------------- ---------------------------------------------------------------------- ----------------------------
"GRAFOIL" Products
Per Ballard Power Systems Supply Agreement
Schedule B provided 7/29/1999.
1 Volumes [TEXT DELETED] g/cm2, [TEXT DELETED] thick x [TEXT DELETED] x [TEXT $[TEXT DELETED]/ea
Per [TEXT DELETED]
DELETED] [TEXT DELETED]
2 " [TEXT DELETED] mg/cm2, [TEXT DELETED] thick x [TEXT DELETED] x [TEXT $[TEXT DELETED]/ea
DELETED]
3 " [TEXT DELETED] thk x [TEXT DELETED] x [TEXT DELETED] $[TEXT DELETED]/ea
[TEXT DELETED]
4 " [TEXT DELETED] mg/cm2, [TEXT DELETED] thick x [TEXT DELETED] x [TEXT $[TEXT DELETED]/ea
DELETED]
5 " [TEXT DELETED] mg/cm2, [TEXT DELETED] thk x [TEXT DELETED] x [TEXT $[TEXT DELETED]/rl
DELETED] on [TEXT DELETED].
*SEE PARAGRAPH 1 ON REVERSE SIDE
============= =============== ====================================================================== ============================
Delivery Point: FCA Factory - Cleveland, Ohio
Terms of Payment: Date Draft 30 Days
Estimated Time of Shipment From Plant: As Required
This date will be confirmed upon receipt of order. If it is
unsatisfactory please let us know.
The sale of the products described herein shall be governed by the
terms and conditions contained in any written contract currently in
effect between Buyer and Seller covering such sale. If there is no such
contract, then Seller hereby offers to sell such product to Buyer only
upon the terms set forth herein, including those on the reverse side of
this document.
This quotation is subject to acceptance within (30) days from the date
hereof.
Thank you for this inquiry. Be assured your order will receive our
prompt attention.
cc: P. Calarco UCAR
J.J. Gough UCAR Very truly yours,
M.H. Burns UCAR /s/ John R. Smelko
B-7
UCAR
UCAR CARBON COMPANY INC. PHONE: 216/529-3777
P.O. Box 94637 Cleveland, Ohio 44101 U.S.A. 800/253-8003
Ballard Power Systems Inc. Date September 27, 1999
9000 Glenlyon Parkway Quotation No. 99G1274
Burnaby, BC
Canada V5J 5J9
Attn: Al Fortin
Fax: 604-412-8649
This quotation is submitted in reply to your inquiry and is our offer to sell
you the products described below, only upon the terms and conditions of sale
contained in this quotation, including those contained on the reverse side
hereof.
=================== ========================================================================== =============================
QUANTITY DESCRIPTION PRICE
- ------------------- -------------------------------------------------------------------------- -----------------------------
[TEXT DELETED] GRAFOIL [TEXT DELETED] mg/cm2 $[TEXT DELETED]
Rolls [TEXT DELETED]x [TEXT DELETED] x [TEXT DELETED] EA ROLL
[TEXT DELETED]: [TEXT DELETED] x [TEXT DELETED]
Width [TEXT DELETED]
[TEXT DELETED] meters - [TEXT DELETED] diameter
Note: The last time we supplied this,
the width tolerance was +/- [TEXT DELETED]
Please confirm when ordering.
*SEE PARAGRAPH 1 ON REVERSE
- ------------------------------- ------------------------------------------------------ -------------------------------------
ESTIMATED SHIPPING DATE ABOVE PRICES F.O.S. SHIPPING POINT TERMS
As Scheduled Cleveland, OH Net 30 Days-No Cash Discount
- ------------------------------- ------------------------------------------------------ -------------------------------------
This offer to sell the products described above is subject to acceptance within
fifteen (15) days from the date hereof. The estimated shipping date will be
confirmed upon receipt of order. If this date does not meet your needs and an
earlier delivery is required, please let us know.
Thank you for this inquiry. We assure you that your order will be serviced
promptly.
cc: M. Burns Very truly yours,
P. Calarco UCAR
J. Gough UCAR CARBON COMPANY INC.
By: /s/ John R. Smelko
John R. Smelko
B-8
UCAR
UCAR CARBON COMPANY INC. PHONE: 216/529-3777
P.O. Box 94637 Cleveland, Ohio 44101 U.S.A. 800/253-8003
Ballard Power Systems Inc. Date October 22, 1999
9000 Glenlyon Parkway Quotation No. 99G1297
Burnaby, BC V5J 5J9 Your Fax Inquiry
Dated Oct. 20, 1999
Attn: Michelle Hicks
This quotation is submitted in reply to your inquiry and is our offer to sell
you the products described below, only upon the terms and conditions of sale
contained in this quotation, including those contained on the reverse side
hereof.
=================== ========================================================================== =============================
QUANTITY DESCRIPTION PRICE
- ------------------- -------------------------------------------------------------------------- -----------------------------
[TEXT DELETED] GRAFOIL [TEXT DELETED] $[TEXT DELETED]
Pcs. [TEXT DELETED]x [TEXT DELETED] x [TEXT DELETED] Net Each
[TEXT DELETED] GRAFOIL [TEXT DELETED] $[TEXT DELETED]
Pcs. [TEXT DELETED] x [TEXT DELETED] x [TEXT DELETED] Net Each
[TEXT DELETED] GRAFOIL [TEXT DELETED] $[TEXT DELETED]
Pcs. [TEXT DELETED]x [TEXT DELETED] x [TEXT DELETED] Net Each
Please specify density when ordering. U.S. Dollars
*SEE PARAGRAPH 1 ON REVERSE
- ------------------------------- ------------------------------------------------------ -------------------------------------
ESTIMATED SHIPPING DATE ABOVE PRICES F.O.S. SHIPPING POINT TERMS
As Scheduled Cleveland, OH Net 30 Days-No Cash Discount
- ------------------------------- ------------------------------------------------------ -------------------------------------
This offer to sell the products described above is subject to acceptance within
fifteen (15) days from the date hereof. The estimated shipping date will be
confirmed upon receipt of order. If this date does not meet your needs and an
earlier delivery is required, please let us know.
Thank you for this inquiry. We assure you that your order will be serviced
promptly.
cc: Milt Burns Very truly yours,
Paul Calarco UCAR
Jeff Gough UCAR CARBON COMPANY INC.
By: /s/ John R. Smelko
John R. Smelko
B-9
UCAR
UCAR CARBON COMPANY INC. PHONE: 216/529-3777
P.O. Box 94637 Cleveland, Ohio 44101 U.S.A. 800/253-8003
Ballard Power Systems Inc. Date January 12, 2000
9000 Glenlyon Parkway Quotation No. 00G1009
Burnaby, BC V5J 5J9
Attn: Al Fortin
Phone: 604/412-4717
Fax: 604/412-8649
This quotation is submitted in reply to your inquiry and is our offer to sell
you the products described below, only upon the terms and conditions of sale
contained in this quotation, including those contained on the reverse side
hereof.
=================== ========================================================================== =============================
QUANTITY DESCRIPTION PRICE
- ------------------- -------------------------------------------------------------------------- -----------------------------
[TEXT DELETED] [TEXT DELETED] mg/cm2 $[TEXT DELETED]
Rolls [TEXT DELETED] x [TEXT DELETED]+/-[TEXT DELETED] x [TEXT Net EA Roll
DELETED] USD
[TEXT DELETED]: [TEXT DELETED] x [TEXT DELETED] x [TEXT
DELETED]
*SEE PARAGRAPH 1 ON REVERSE
- ------------------------------- ------------------------------------------------------ -------------------------------------
ESTIMATED SHIPPING DATE ABOVE PRICES F.O.S. SHIPPING POINT TERMS
2 Weeks ARO Cleveland, OH Net 30 Days-No Cash Discount
- ------------------------------- ------------------------------------------------------ -------------------------------------
This offer to sell the products described above is subject to acceptance within
fifteen (15) days from the date hereof. The estimated shipping date will be
confirmed upon receipt of order. If this date does not meet your needs and an
earlier delivery is required, please let us know.
Thank you for this inquiry. We assure you that your order will be serviced
promptly.
cc: Jeff Gough Very truly yours,
Paul Calarco UCAR
Milt Burns UCAR CARBON COMPANY INC.
File
By: /s/ John R. Smelko
John R. Smelko
B-10
UCAR
UCAR CARBON COMPANY INC. PHONE: 216/529-3777
P.O. Box 94637 Cleveland, Ohio 44101 U.S.A. 800/253-8003
Ballard Power Systems Inc. Date March 10, 2000
9000 Glenlyon Parkway Quotation No. 00G1057
Burnaby, BC V5J 5J9 Your Fax Inquiry of
of March 2, 2000
Attn: Michelle Hicks
This quotation is submitted in reply to your inquiry and is our offer to sell
you the products described below, only upon the terms and conditions of sale
contained in this quotation, including those contained on the reverse side
hereof.
=================== ========================================================================== =============================
QUANTITY DESCRIPTION PRICE
- ------------------- -------------------------------------------------------------------------- -----------------------------
[TEXT DELETED]* GRAFOIL [TEXT DELETED] g/cm2 $[TEXT DELETED]
[TEXT DELETED] x [TEXT DELETED] x [TEXT DELETED] EA USD
*To Be Ordered in 2 Distinct Lots of [TEXT DELETED]
Pieces Each.
*SEE PARAGRAPH 1 ON REVERSE
- ------------------------------- ------------------------------------------------------ -------------------------------------
ESTIMATED SHIPPING DATE ABOVE PRICES F.O.S. SHIPPING POINT TERMS
2 Weeks ARO Cleveland, OH Net 30 Days-No Cash Discount
- ------------------------------- ------------------------------------------------------ -------------------------------------
This offer to sell the products described above is subject to acceptance within
fifteen (15) days from the date hereof. The estimated shipping date will be
confirmed upon receipt of order. If this date does not meet your needs and an
earlier delivery is required, please let us know.
Thank you for this inquiry. We assure you that your order will be serviced
promptly.
cc: Paul Calarco Very truly yours,
Jeff Gough UCAR
File UCAR CARBON COMPANY INC.
By: /s/ John R. Smelko
John R. Smelko
B-11
UCAR
UCAR CARBON COMPANY INC. PHONE: 216/529-3777
P.O. Box 94637 Cleveland, Ohio 44101 U.S.A. 800/253-8003
Ballard Power Systems Inc. Date March 10, 2000
9000 Glenlyon Parkway Quotation No. 00G1051
Burnaby, BC V5J 5J9 Your Fax Inquiry
of March 6, 2000
Attn: Michelle Hicks
This quotation is submitted in reply to your inquiry and is our offer to sell
you the products described below, only upon the terms and conditions of sale
contained in this quotation, including those contained on the reverse side
hereof.
=================== ========================================================================== =============================
QUANTITY DESCRIPTION PRICE
- ------------------- -------------------------------------------------------------------------- -----------------------------
[TEXT DELETED]* GRAFOIL [TEXT DELETED] g/cm2 $[TEXT DELETED]
[TEXT DELETED] x [TEXT DELETED] x [TEXT DELETED] EA NET
Per [TEXT DELETED] USD
except tolerances:
+/- [TEXT DELETED] width
+/- [TEXT DELETED] length
*[TEXT DELETED] Pieces for delivery [TEXT DELETED]
[TEXT DELETED] Pieces for delivery [TEXT DELETED]
*SEE PARAGRAPH 1 ON REVERSE
- ------------------------------- ------------------------------------------------------ -------------------------------------
ESTIMATED SHIPPING DATE ABOVE PRICES F.O.S. SHIPPING POINT TERMS
As Scheduled Cleveland, OH Net 30 Days-No Cash Discount
- ------------------------------- ------------------------------------------------------ -------------------------------------
This offer to sell the products described above is subject to acceptance within
fifteen (15) days from the date hereof. The estimated shipping date will be
confirmed upon receipt of order. If this date does not meet your needs and an
earlier delivery is required, please let us know.
Thank you for this inquiry. We assure you that your order will be serviced
promptly.
cc: Paul Calarco Very truly yours,
Jeff Gough UCAR
File UCAR CARBON COMPANY INC.
By: /s/ John R. Smelko
John R. Smelko
B-12
UCAR GRAPH - TECH
UCAR GRAPH - TECH INC.
Ballard Power Systems Inc.
June 7, 2000
Quotation No. 00G1098
YEAR QUANTITY DESCRIPTION PRICE
---- -------- ----------- -----
[TEXT DELETED] [TEXT DELETED] GRAFCELL [TEXT DELETED] $[TEXT
K Kg DELETED]
Per Kg
[TEXT DELETED] [TEXT DELETED] GRAFCELL [TEXT DELETED] $[TEXT
K Kg DELETED]
Per Kg
[TEXT DELETED] [TEXT DELETED] GRAFCELL [TEXT DELETED] $[TEXT
K Kg DELETED]
Per Kg
[TEXT DELETED] [TEXT DELETED] GPAFCELL [TEXT DELETED] $[TEXT
K Kg DELETED]
Per Kg
[TEXT DELETED] [TEXT DELETED] GRAFCELL [TEXT DELETED] $[TEXT
K Kg DELETED]
Notes: Prices quoted in year 2000 dollars
Assume all materials to be shipped in coils after 2003
[TEXT DELETED] weight is [TEXT DELETED] mg/cm2
Material is not [TEXT DELETED] Volumes as stated in Ballard's
forecast release No. 4 dated April 28, 2000.
P.O. Box 94637, Cleveland, OH 44101-4637 U.S.A.
Tel: (216) 529-3777, (800) 253-8003
Fax: (216) 529-3888
Email: grafoil@ucar.com
B-13
UCAR
UCAR CARBON COMPANY INC.
P.O. Box 94637 Cleveland, Ohio 44101 U.S.A.
Ballard Power Systems Inc. Date June 22, 2000
9000 Glenlyon Parkway
Burnaby, BC Quotation Number: 00G1101
Canada V5J 5J9
Inquiry Number: Your Fax of
June 20, 2000
Attn: Michelle Hicks
In response to your inquiry, we are pleased to quote as follows.
============= =============== ====================================================================== ============================
ITEM QUANTITY DESCRIPTION PRICE
- ------------- --------------- ---------------------------------------------------------------------- ----------------------------
A [TEXT DELETED] GRAFCELL [TEXT DELETED] g/cm(2) $[TEXT DELETED]
(per release) [TEXT DELETED] x [TEXT DELETED] x [TEXT DELETED] EA NET
Your [TEXT DELETED] USD
*SEE PARAGRAPH 1 ON REVERSE SIDE
============= =============== ====================================================================== ============================
Delivery Point: FOB Factory - Cleveland, Ohio
Terms of Payment: Net 30 Days
Estimated Time of Shipment From Plant: ---
This date will be confirmed upon receipt of order. If it is
unsatisfactory please let us know.
The sale of the products described herein shall be governed by the
terms and conditions contained in any written contract currently in
effect between Buyer and Seller covering such sale. If there is not
such contract, then Seller hereby offers to sell such product to Buyer
only upon the terms set forth herein, including those on the reverse
side of this document.
This quotation is subject to acceptance within (30) days from the date
hereof.
Thank you for this inquiry. Be assured your order will receive our
prompt attention.
cc: Paul Calarco Very truly yours,
Jeff Gough
Milt Burns
File By: /s/ John R. Smelko
John R. Smelko
B-14
UCAR
UCAR CARBON COMPANY INC.
P.O. Box 94637 Cleveland, Ohio 44101 U.S.A.
Ballard Power Systems Inc. Date September 15, 2000
9000 Glenlyon Parkway
Burnaby, BC Quotation Number: 00G1135
Revision A
Canada V5J 5J9
Inquiry Number: Verbal (Gough)
Attn: Horst Thumm
In response to your inquiry, we are pleased to quote as follows.
============= =============== ====================================================================== ============================
ITEM QUANTITY DESCRIPTION PRICE
- ------------- --------------- ---------------------------------------------------------------------- ----------------------------
A [TEXT DELETED] GRAFCELL [TEXT DELETED] MG/CM(2) $[TEXT DELETED] ea. roll
[TEXT DELETED] x [TEXT DELETED] x [TEXT DELETED] USD
[TEXT DELETED]: [TEXT DELETED] x [TEXT DELETED] x [TEXT DELETED]
(Material may be [TEXT DELETED] & [TEXT DELETED]
*SEE PARAGRAPH 1 ON REVERSE SIDE
============= =============== ====================================================================== ============================
Delivery Point: FOB Factory - Cleveland, Ohio
Terms of Payment: Net 30 Days
Estimated Time of Shipment From Plant: 1 TO 2 WEEKS ARO
This date will be confirmed upon receipt of order. If it is
unsatisfactory please let us know.
The sale of the products described herein shall be governed by the
terms and conditions contained in any written contract currently in
effect between Buyer and Seller covering such sale. If there is not
such contract, then Seller hereby offers to sell such product to Buyer
only upon the terms set forth herein, including those on the reverse
side of this document.
This quotation is subject to acceptance within (30) days from the date
hereof.
Thank you for this inquiry. Be assured your order will receive our
prompt attention.
cc: Jeff Gough Very truly yours,
File
By: /s/ John R. Smelko
John R. Smelko
B-15
GRAFTECH
GRAFTECH INC.
GRA
P.O. Box 94637 Cleveland, Ohio 44101 U.S.A.
Ballard Power Systems Inc. Date January 8, 2001
Burnaby, BC Quotation Number: 00G1007
Inquiry Number: Fax of Jan. 8, 2001
Attn: Michelle Hicks
In response to your inquiry, we are pleased to quote as follows.
============= ================ ===================================================================== ============================
ITEM QUANTITY DESCRIPTION PRICE
- ------------- ---------------- --------------------------------------------------------------------- ----------------------------
A [TEXT DELETED] GRAFCELL [TEXT DELETED] g/cm(2) $[TEXT DELETED]
PCS [TEXT DELETED] x [TEXT DELETED] x [TEXT DELETED] EA NET
Per DWG [TEXT DELETED]
*SEE PARAGRAPH 1 ON REVERSE SIDE
============= ================ ===================================================================== ============================
Delivery Point: Cleveland, Ohio
Terms of Payment: Net 30 Days
Estimated Time of Shipment From Plant: 2 Weeks
This date will be confirmed upon receipt of order. If it is
unsatisfactory please let us know.
The sale of the products described herein shall be governed by the
terms and conditions contained in any written contract currently in
effect between Buyer and Seller covering such sale. If there is not
such contract, then Seller hereby offers to sell such product to Buyer
only upon the terms set forth herein, including those on the reverse
side of this document.
This quotation is subject to acceptance within (30) days from the date
hereof.
Thank you for this inquiry. Be assured your order will receive our
prompt attention.
cc: Jeff Gough Very truly yours,
Paul Calarco
Milt Burns
File By: /s/ John R. Smelko
John R. Smelko
B-16
GRAFTECH
P.O. Box 94637 Cleveland, Ohio 44101 U.S.A.
Phone 216/529-3777
Ballard Power Systems Inc. Date 01/24/01
9000 Glenlyon Parkway
Burnaby, BC Quotation Number: 01G1029
Canada V5J 5J9
Attn: Michelle Hicks Inquiry Number: e-mail dated
01-19-01
In response to your inquiry, we are pleased to quote as follows.
============= =============== ====================================================================== ============================
ITEM QUANTITY DESCRIPTION PRICE
- ------------- --------------- ---------------------------------------------------------------------- ----------------------------
A --- GRAFCELL [TEXT DELETED] MG/CM(2) $[TEXT DELETED]/pc
[TEXT DELETED] X [TEXT DELETED] x [TEXT DELETED]
[TEXT DELETED]: [TEXT DELETED] x [TEXT DELETED] x [TEXT DELETED]
B --- GRAFCELL [TEXT DELETED] MG/CM(2) $[TEXT DELETED]/roll
[TEXT DELETED] X [TEXT DELETED] x [TEXT DELETED]
[TEXT DELETED]: [TEXT DELETED] X [TEXT DELETED] X [TEXT DELETED]
*SEE PARAGRAPH 1 ON REVERSE SIDE
============= =============== ====================================================================== ============================
Delivery Point: FOB Cleveland, Ohio
Terms of Payment: Net 30 Days
Estimated Time of Shipment From Plant: 4 Weeks
This date will be confirmed upon receipt of order. If it is
unsatisfactory please let us know.
The sale of the products described herein shall be governed by the
terms and conditions contained in any written contract currently in
effect between Buyer and Seller covering such sale. If there is not
such contract, then Seller hereby offers to sell such product to Buyer
only upon the terms set forth herein, including those on the reverse
side of this document.
This quotation is subject to acceptance within (30) days from the date
hereof.
Thank you for this inquiry. Be assured your order will receive our
prompt attention.
cc: Horst Thumm Very truly yours,
Jeff Gough
By: /s/ John R. Smelko
John R. Smelko
B-17
SCHEDULE C
ROYALTY DETERMINATION
PRINCIPLES TO CONSIDER FOR THE DETERMINATION OF ROYALTIES
1. The relative contributions of BPS and Graftech to the IP so licensed. In
the case of Joint Arising IP, primary consideration shall be given to
this principle in determining the royalties to be paid;
2. the impact of the licensed IP on future sales successes of the licensee's
product;
3. the total market size or potential revenue or likely revenue
realistically achievable for foreseeable products incorporating the IP so
licensed;
4. the Net Sales Price of the product incorporating the IP so licensed;
5. the specific markets that are realistically addressable by products
embodying the IP so licensed;
6. competing processes available to the licensee and the advantages of using
the IP over other processes;
7. the possible duration of any competitive advantage to the licensee by
using the IP so licensed;
8. the development cost to the licensee of an alternative to the IP so
licensed;
9. opportunity costs to the licensee of assets deployed;
10. the risks to the licensee of investment in manufacturing and
commercialization of the licensee's products using the IP so licensed;
11. the incremental financial investment to be made by the licensee for
manufacturing, marketing and distribution functions;
12. cost of intangible and intellectual capital to be employed by the
licensee;
13. the economic life of the product embodying the licensee's technology;
14. the length of time required to commercialize the licensee's products; and
15. the strength of the IP so licensed.
Royalties for licenses under this Agreement will be determined as soon as
practicable and to the extent possible, before the grant of the applicable
license.
C-1
SCHEDULE D
CONDITIONS OF PURCHASE
ACCEPTANCE
1. Each Purchase Order issued by BPS will be deemed accepted by Graftech
upon receipt by BPS of Graftech's acknowledgement, by electronic mail,
telefax or other agreed form or Graftech delivers the ordered items to
BPS. Subject to ss.2.8 of this Agreement, acceptance of a Purchase Order
is expressly limited to the terms thereof. Graftech will not unreasonably
reject a Purchase Order from BPS.
OVERSHIPMENTS, INSTALLMENTS
2. BPS will pay only for maximum quantities of Graphitic Materials and
Graphitic Components ordered. Overshipments will be held at Graftech's
risk and expense for a reasonable time while awaiting shipping
instructions from Graftech. Return shipping charges for excess quantities
will be at Graftech's expense. Any provision in a Supply Arrangement or
Purchase Order for delivery of items by installment will not be construed
as rendering the obligations of Graftech severable and BPS will only be
obliged to pay the price of the Graphitic Materials and Graphitic
Components, as the case may be, included in such installment after such
is actually received by BPS.
PACKING AND SHIPMENT
3. Unless otherwise specified in a Supply Arrangement or Purchase Order, if
the price of the ordered Graphitic Material or Graphitic Component is
based on the weight or volume thereof, such price must reflect the net
weight or volume of the materials or items ordered only, and no charges
will be allowed for boxing, crating, handling damage, carting, drayage,
storage or other packing requirements. Unless otherwise specified in a
Supply Arrangement or Purchase Order, all ordered Graphitic Materials or
Graphitic Components must be securely packed in cartons, boxes or other
containers, and marked and otherwise prepared for shipment in a manner
which is
(a) in accordance with good commercial practice,
(b) acceptable to common carriers for shipment at the lowest rate for
the Graphitic Materials or Graphitic Components, and
(c) adequate to ensure safe arrival of the ordered the Graphitic
Materials or Graphitic Components at the named destination.
Graftech must mark all containers with necessary lifting, handling and
shipping information, purchase order numbers, date of shipment and the
names of the consignee and consignor, if applicable. An itemized
packaging sheet must accompany each shipment. No partial or complete
delivery will be permitted hereunder before the date or dates specified
for delivery without BPS's prior written consent thereto. If the ordered
Graphitic Materials or Graphitic Components are improperly delivered for
shipment, any
D-1
additional cost thereby incurred will be for the account of, and will
be paid by, Graftech, and may be deducted by BPS from the payment of
the price for such Graphitic Materials or Graphitic Components.
DELIVERY
4. Unless otherwise specifically provided on the face of the Purchase Order
or in the Supply Arrangement, the Products called for hereunder shall be
delivered on a FCA origin basis. The term "FCA" has the meaning ascribed
thereto in, and is to be interpreted in accordance with the Incoterms
2000 published by the International Chamber of Commerce. Notwithstanding
the shipping terms contained in any Purchase Order or Supply Arrangement,
title to and risk of loss of Graphitic Materials and Graphitic
Components, as the case may be, will remain with Graftech and not pass to
BPS until delivery to BPS's named destination for importation.
WARRANTIES
5. Graftech hereby represents and warrants to BPS (with the intention that
such representations and warranties will survive the execution and
implementation of each Purchase Order or Supply Arrangement) and
covenants and agrees with BPS that the Graphitic Materials and Graphitic
Components, as the case may be, supplied pursuant to a Purchase Order or
Supply Arrangement will
(a) be in full compliance with the Specifications,
(b) be in conformity with samples, if any, approved by BPS, if
applicable,
(c) be produced in compliance with the requirements of the Fair Labor
Standards Act of 1938 (United States of America), as amended,
(d) not infringe upon any intellectual property right of any Person
covering the Graphitic Materials or Graphitic Components
themselves; provided, however, Graftech will not warrant against
infringement by reason of any use of such Graphitic Materials or
Graphitic Components in combination with other articles or
materials or in the practice of any process other than in
combination with other articles or materials or in the practice of
any processes for which such Graphitic Materials or Graphitic
Components have been expressly manufactured by Graftech,
(e) be of good quality, without defect in materials or workmanship,
and
(f) be so supplied, and BPS will have title thereto, free and clear of
all liens, encumbrances and security interests.
NO OTHER WARRANTIES
6. THERE ARE NO EXPRESS WARRANTIES BY GRAFTECH IN RESPECT OF THE GRAPHITIC
MATERIALS OR GRAPHITIC COMPONENTS OTHER THAN THOSE
D-2
SPECIFIED IN ss.5 HEREOF. NO OTHER WARRANTIES BY GRAFTECH IN RESPECT OF
THE GRAPHITIC MATERIALS OR GRAPHITIC COMPONENTS (OTHER THAN WARRANTY OF
TITLE AS PROVIDED BY THE UNIFORM COMMERCIAL CODE) WILL BE IMPLIED OR
OTHERWISE CREATED AT LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO,
WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE. Without limiting the generality of the forgoing, BPS assumes all
risk and liability for the results obtained by the use of any of the
Graphitic Materials or Graphitic Components delivered hereunder in
combination with other articles, or materials or in the practice of any
processes other than in combination with articles or materials or in the
practice of any processes for which such Graphitic Materials or Graphitic
Components have been expressly manufactured by Graftech.
FAILURE TO MEET WARRANTIES
7. If any of the Graphitic Materials or Graphitic Components delivered by
Graftech to BPS do not meet the warranties applicable thereto, BPS may,
at its option,
(a) require Graftech to correct, at no cost to BPS, any defective or
non-conforming Graphitic Materials or Graphitic Components by
repair or replacement, or
(b) return such defective or non-conforming Graphitic Materials or
Graphitic Components at Graftech's expense to Graftech and recover
from Graftech the purchase price paid therefor.
The foregoing remedies are not exclusive and are in addition to all other
remedies at law or in equity available to BPS including but not limited
to, the remedy available to BPS under ss.2.10 of this Agreement;
provided, however, that other than as provided in ss. 6.5 of this
Agreement, in no event will Graftech be liable for special, incidental,
indirect, or consequential damages, whether or not caused by or resulting
from the negligence of Graftech. No waiver by BPS of any Specifications
for one or more of the Graphitic Materials or Graphitic Components
ordered will constitute a waiver or such Specification for the remaining
Graphitic Materials or Graphitic Components to be delivered hereunder,
unless specified by BPS in writing.
INVOICES
8. Each invoice issued as a result of a Supply Arrangement or Purchase Order
must:
(a) be rendered separately for each delivery,
(b) not cover more than one Supply Arrangement or Purchase Order,
(c) contain the Supply Arrangement or Purchase Order number under
which it is issued, and
D-3
(d) be rendered to the proper Accounts Payable Department of BPS as
set forth in the Purchase Order. Invoice payment terms will be 30
days from the date the invoice is received by the proper Accounts
Payable Department of BPS.
INSPECTION
9. The Graphitic Materials or Graphitic Components purchased are subject to
BPS's inspection and approval at any place BPS may reasonably designate.
BPS may, without liability hereunder or otherwise and without prejudice
to any other rights or remedies available to it, reject and refuse
acceptance of any Graphitic Materials or Graphitic Components which do
not conform in all respects to:
(a) any instructions contained in the relevant Purchase Order or
Supply Arrangement;
(b) the Specifications; or
(c) Graftech's warranties contained in ss.5 hereof.
With respect to any Graphitic Materials or Graphitic Components which do
not so conform, BPS may, in BPS's sole discretion, hold such Graphitic
Materials or Graphitic Components for Graftech's inspection at Graftech's
risk upon notification to Graftech, or return such Graphitic Materials or
Graphitic Components to Graftech at Graftech's expense. BPS's rejection
of any Graphitic Materials or Graphitic Components under a Purchase Order
or Supply Arrangement will be without prejudice to its rights to require
Graftech to perform its obligations in respect to the balance of the same
Purchase Order or Supply Arrangement. Payments for any Graphitic
Materials or Graphitic Components will not be deemed to be an acceptance
thereof.
CHANGES
10. BPS reserves the right at any time to request reasonable changes to:
(a) method of packaging, packing or shipment; and
(b) place and /or time of delivery of Products.
If any such change causes an increase or decrease in the cost of, or the
time required for the performance hereunder, an equitable adjustment
shall be made in the price or delivery schedule, or both. Any claim for
adjustment by Graftech shall be deemed waived unless asserted in writing
within 30 days from the receipt by Graftech of the requested change.
Nothing contained in this clause shall relieve Graftech from proceeding
without delay in the performance of the order as changed.
INDEMNIFICATION
11. Each party shall indemnify and hold the other harmless from any third
party claim, demand, cause of action, damage, or cost and expense for
which the other might become
D-4
liable arising from or in connection with that party's performance or
non-performance hereunder. The provisions of ss.6.4 of this Agreement
will not apply to this ss.11.
COMPLIANCE WITH LAW
12. Each of BPS and Graftech warrants and represents that it has and will
continue during the performance of its obligations hereunder, to comply
with all relevant provisions of federal, provincial, state, and local
laws and regulations. Graftech also warrants and represents that any
chemical substance delivered hereunder shall not be on the list of
prohibited substances detailed in the Canadian Environmental Protection
Act and shall be dealt with only in conformity with such Act. Graftech
will obtain all federal, provincial, state, municipal and other
government or regulatory licenses, permits or other documents or
permissions that are required by Graftech or are incidental to the sale
or shipment of the products by Graftech to BPS.
EQUIPMENT
13. All tooling, equipment or material of every description owned by a party
(the "Owner") and furnished to the other party or specifically paid for
by the Owner, and any replacement thereof, will remain the property of
the Owner. Such property, and whenever practical, each individual item
thereof, will be plainly marked or otherwise properly identified as the
"Property of BPS" or "Property of Graftech," as appropriate, and will be
safely stored. A party will not substitute any property for the Owner's
property and will not use such property except in fulfilling the Purchase
Order or a Supply Arrangement. Such property, while in the party's
custody or control, will be held at that party's expense, and will be
insured by that party in an amount equal to its replacement cost with
loss payable to Owner. Such property will be prepared for shipment and
delivered in good condition, normal wear and tear excepted, to the Owner
on a FCA origin basis immediately upon request by the Owner.
D-5