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EXHIBIT 10.97
SYNTHETIC DIPPING MACHINE
FOR
WILSHIRE TECHNOLOGIES, INC.
PROPOSAL NUMBER: 7109-00: REV. 2
PROPOSAL DATE: JULY 3, 1997
THIS PROPOSAL IS SUBMITTED WITH THE UNDERSTANDING THAT PRICING, DELIVERY,
ENGINEERING, DESIGN, TECHNICAL AND OPERATIONAL DETAILS ARE CONFIDENTIAL TO ACC
AUTOMATION AND SHALL NOT BE PASSED ON TO ANYONE OTHER THAN THE EMPLOYEES OF THE
COMPANY RECEIVING THIS PROPOSAL WHO HAVE A NEED FOR SUCH INFORMATION.
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I N D E X
I. EQUIPMENT AND SERVICES
EXHIBIT A GENERAL MACHINE SPECIFICATIONS
EXHIBIT B SEQUENCE OF OPERATION
EXHIBIT C MACHINE LAYOUT / DRAWINGS
EXHIBIT D SCOPE OF SUPPLY BY BUYER
EXHIBIT E PROJECT SCHEDULE
EXHIBIT F ACCEPTANCE TESTS AND DOCUMENTATION
EXHIBIT G OPERATIONS TO BE CONTROLLED, MONITORED, AND/OR
REPORTED BY PROCESS CONTROLLER
EXHIBIT H PRICING - BASE MACHINE PACKAGE
EXHIBIT I SPARE PARTS
EXHIBIT J PRE-INSTALLATION REQUIREMENTS
EXHIBIT K PROGRESSIVE PAYMENT SCHEDULE
EXHIBIT L INSTALLATION SUMMARY
EXHIBIT M TRAINING
EXHIBIT N FREIGHT / SHIPPING
EXHIBIT O PLANT LAYOUT
II. SALES AGREEMENT
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SYNTHETIC DIPPING SYSTEM
EXHIBIT H
PRICING
1.0 BASE MACHINE PRICE
PRICE ......................................................... $ 805,660.00
* Project Management
* Two (2) - 2 axis Dipping Robots
* (12) "C" Channel Slave Pallets
* (300) Form Mounting Racks
* Four (4) - Oven/Rotate Stations
* One (1) - Pre Heat Oven
* One (1) - Glove Soak Tank with Single Speed Vertical and Timer
* One (1) - Pallet Entry Station
* One (1) - Pallet Exit Station
* Electrical panel
* PLC and control interface terminal
* Operating and Maintenance manuals
* Machine Enclosure for Automated Cell
2.0 OPTION - HUMIDITY CONTROL FOR DIP CHAMBERS
PRICE .......................................................... $ 39,410.00
GRAND TOTAL PRICE (SECTION 1.0 AND 2.0) ....................... $ 845,070.00
Installation labor and material is not included in the pricing above, which can
be provided by SELLER on a time and material basis. Pricing shown is valid for a
period of 60 days beyond the date of this quotation.
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SYNTHETIC DIPPING SYSTEM
EXHIBIT I
MECHANICAL AND ELECTRICAL SPARE PARTS
As per Exhibit A, SELLER will define and recommend a spare parts package for
BUYER's review after the design phase of the project. Typical allotment for
spare parts for budgetary purposes can range from 2% to 5% of total machine
price.
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SYNTHETIC DIPPING SYSTEM
EXHIBIT J
PRE-INSTALLATION REQUIREMENTS
Buyer to provide:
1. Clean, clear installation site including the preparation of any required
machine pads, trenching and supporting utilities according to SELLER's
requirements.
2. Personnel and equipment for transporting the machine from any place of
temporary storage at CUSTOMER'S facility to the final installation
location, including rental of crane if necessary.
3. Office space for SELLER's use at or in close proximity to the
installation site.
4. Fax machine for use by SELLER at or in close proximity to the
installation site. BUYER to pay the charges for each fax sent.
5. Telephone for use by SELLER at or in close proximity to the installation
site. BUYER to pay usage charges.
6. Free and clear access to loading and unloading facilities.
7. Personnel support facilities at or in close proximity to the
installation site.
8. Any building modifications required to support Machine.
9. Any foundation work necessary for the support of Machine.
10. All temporary power to facilitate installation and start up by ACC
Automation personnel.
11. All building and other licenses and permits required.
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SYNTHETIC DIPPING SYSTEM
EXHIBIT K
PROGRESSIVE PAYMENT SCHEDULE
*DOWN PAYMENT ............................................................................. $ 84,507.00
MONTH ONE (30 DAYS A.R.O - Block Plan Layout Complete) .................................... $ 84,507.00
MONTH TWO (61 DAYS A.R.O - Approval Drawings; Dip Station, Dip Tank) ...................... $ 126,760.00
MONTH THREE (92 DAYS A.R.O - Approval Drawings; Dry/Rotate Oven, Pre Heat Oven, Soak Tank) $ 84,507.00
MONTH FOUR (122 DAYS A.R.O - Approval Drawings; Electrical) ............................... $ 126,760.00
MONTH FIVE (153 DAYS A.R.O - Shipment #1) ................................................. $ 84,507.00
MONTH SIX (184 DAYS A.R.O - Shipment #2) .................................................. $ 126,760.00
MONTH SEVEN (214 DAYS A.R.O - Shipment #3) ................................................ $ 84,507.00
COMPLETION OF COMMISSIONING ............................................................... $ 42,255.00
TOTAL UNITED STATES DOLLARS ............................................................... $ 845,070.00
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SYNTHETIC DIPPING SYSTEM
EXHIBIT L
INSTALLATION SUMMARY
1.0 SCOPE
The equipment is designed in modular fashion to be erected in segments at the
BUYER's site. SELLER to provide necessary field supervision on a time and
material basis.
2.0 PRICING
Due to the unforeseen nature of field installations, all field services to be
supplied to BUYER by SELLER, on a time and material basis, at the following
rates;
* Field Supervisor at $65.00 per hour
* Field Engineering at $65.00 per hour
* Field Living/Travel Expenses at cost plus 0%, including agreed
upon "per diem" (estimated US$ 35.00 to $40.00 per day).
For budgetary purposes, we envision the installation to require approximately
(400) to (500) field supervisory hours and (200) to (300) field engineering
hours for equipment commissioning.
BUYER to supply one (1) round trip airfare every 30 days for Field Supervisor,
allowing for a four (4) day departure from job site.
SELLER proposes that BUYER provide local installation trade labor and field
material to interconnect equipment, under supervision of SELLER's Field
Supervisor.
3.0 INSTALLATION PARAMETERS
3.1 ELECTRICAL SERVICE
The BUYER is responsible for providing power (as stipulated in the contract) to
the ACC AUTOMATION provided control panel. The final connection of the power
feed into the main disconnect is the responsibility of the BUYER, under ACC
AUTOMATION's supervision.
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All material and labor required to wire from the ACC AUTOMATION control panel to
ACC's machine is the responsibility of BUYER, under supervision and guidance of
SELLER'S on-site supervisor.
3.2 UTILITIES
All utilities (water, steam, chilled water, air, etc.) shall be piped to the
final connection points to the machine enclosure point by the BUYER, under
supervision and guidance of SELLER'S on-site supervisor.
3.3 FIELD ELECTRICAL MATERIAL
Field electrical material is defined as all items required to interconnect the
control panel to the items it will control Example: wire duct, conduit and
fittings, wire, hangers, fasteners, welding rod, brackets, support steel, etc.
All field material to be supplied by BUYER up to machine enclosure connection
point.
3.4 FIELD MECHANICAL MATERIAL
Field mechanical material is defined as all items required to interconnect and
attach the non-electrical components of the "Line", and stops at Machine
Enclosure. Example: Hangers, fasteners, pipe, fittings, welding rod, brackets,
support steel, grout, caulk, etc. All field material to be supplied by BUYER up
to machine connection point.
3.5 FIELD LABOR AND TOOLS
BUYER will supply necessary electricians, millwrights, welders, etc. to install
equipment as supervised by SELLER. BUYER will pay these third parties direct for
services rendered. All laborers to supply personal tool sets. Purchased and/or
rented field tools and lifts to be supplied by BUYER.
For budgetary purposes, field installation labor and field material/services
(Sections 3.2 through 3.5 above) typically are estimated to be between 15% and
20% of the purchase price of the equipment.
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SYNTHETIC DIPPING SYSTEM
EXHIBIT M
OPERATING AND MAINTENANCE TRAINING
The BUYER's operating and maintenance personnel will be provided with adequate
exposure and guidance to operate, monitor, and maintain the basic machine
functions. SELLER's engineer(s) will be available during the installation,
debugging, and acceptance testing. During this time, the operating and
maintenance personnel will be familiarized with the PLC operational and
maintenance features. There will also be a review of the pneumatic, electrical,
and lubrication schematics and their recommended maintenance requirements.
When the acceptance testing is completed, if the personnel require additional
training; on-site training can be provided on a per diem basis.
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SYNTHETIC DIPPING SYSTEM
EXHIBIT N
FREIGHT/SHIPPING INFORMATION
F.O.B POINT OF MANUFACTURE
A. ESTIMATED VOLUME AND BUDGETARY COSTS
4 to 6 Containers @ $2,500.00 each ....... $ 10,000.00 to $15,000.00
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EXHIBIT O
PLANT LAYOUT
* SELLER will assist BUYER in proper layout of equipment and companion
facilities within the plant.
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SALES AGREEMENT
AGREEMENT made as of the 3rd day of July, by and between ACC AUTOMATION CO. L.P.
("SELLER") a Delaware limited partnership with a principal place of business at
475 Wolf Ledges Parkway, Akron, Ohio 44311, United States of America and
WILSHIRE TECHNOLOGIES INC., a company located at 5441 Avendida Encinas, Suite A,
Carlsbad, CA 92008.
WITNESSETH:
WHEREAS, BUYER desires to purchase from SELLER, and SELLER desires to sell to
BUYER, Dipping Equipment (the "Equipment") manufactured, assembled and installed
by SELLER in accordance with the specifications set forth on Exhibit "A"
attached hereto; and
WHEREAS, BUYER and SELLER desire to establish the terms and conditions under
which the Equipment will be manufactured, sold and installed by SELLER and
purchased by BUYER.
NOW, THEREFORE, in consideration of the promises, agreements and covenants
contained herein and other good and valuable consideration had and received, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1.0 SALE OF EQUIPMENT
In accordance with the terms and conditions of this Agreement SELLER shall sell
and BUYER shall purchase Dipping Equipment in accordance with the specifications
as set forth in Exhibits "A" (hereinafter such Dipping Equipment shall be
individually and collectively referred to as "Equipment").
2.0 PRICE
The total purchase price hereinafter referred to as the "Purchase Price" for the
Equipment, is stated in Exhibit H.
Any and all amounts, monies and charges required to be paid by BUYER to SELLER
under this Agreement shall be made in lawful United States currency only as per
terms of payment given in Section 3.0.
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3.0 PAYMENT TERMS AND ACCEPTANCE
3.1
Payment for Equipment purchased by BUYER hereunder or for any other service
provided hereunder shall be made to SELLER or its nominee in the lawful currency
of the Unites States of America by establishment of a signed contract and direct
bank wire transfer or bank check of down payment in accordance with the terms of
Exhibit K.
3.2
SELLER will furnish or otherwise make available to BUYER operating manuals,
schematic drawings, maintenance information and all other documents and
information required to be given to BUYER under this Agreement.
3.3
In the event that there is no breach in any material respect on the part of
SELLER of its obligation to BUYER herein contained and the BUYER fails to comply
in any respect concerning payment of the Purchase Price, then in addition to all
other rights and remedies available to SELLER in law or in equity, SELLER shall
have the right after 10 days prior written notice, in its sole discretion to
suspend further performance under this Agreement until such time after 10 days
written notice that BUYER complies with the provisions relating to payment of
the Purchase Price, or may at its option, terminate this Agreement upon
providing 30 days written notice, and pursue any other remedy available at law
or equity. Any delay occasioned by BUYER'S failure aforementioned, shall extend
any period in which SELLER is to perform for a period equal to the delay caused
by BUYER hereunder.
In no event shall SELLER be liable for any costs, losses, or other liability, of
any kind whatsoever which is occasioned by BUYER's failure to make timely
payment and SELLER's subsequent consent.
4.0 PROJECT SCHEDULE
Subject to Section 5.0 below and to conduct of BUYER in 3.3 above, SELLER shall
make commercially reasonable efforts to complete the project by the milestones
in accordance with Exhibit E.
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5.0 FORCE MAJEURE
SELLER shall make a commercially reasonable effort to meet the schedule set
forth within the time or times stated therein, but SELLER will not be liable for
any damages or delays resulting directly or indirectly from fire, embargo,
strikes, Act of God, civil strike or insurrection, or failure by vendors,
sub-contractors, including vendors and subcontractors of BUYER furnished
equipment components or installation labor and materials, or other support
agencies to meet promised shipment or required lead times when SELLER has
provided timely orders, specifications, and communications that would reasonably
lead to such shipments, or from the delay by reason of any rule, regulation or
order of any government authority or any other cause or event beyond SELLER's
reasonable control affecting its performance hereunder.
In the event of occurrence of any of the aforesaid force majeure events, the
dates set forth shall be extended for a mutually agreed length of time which
shall at least equal the period of such force majeure event, and all subsequent
supplied shall have a corresponding time extension, in delivery by SELLER so as
to avoid unnecessary building up of inventory with BUYER.
6.0 CHANGE ORDER PROCEDURE
6.1
No changes shall be made in the specifications for the Equipment set forth in
Exhibit "A" hereto, or any component or sub-system thereof unless:
6.1.1
The request for the change is made in writing.
6.1.2
And, the authorized representatives of both the parties hereto sign the document
requesting the change(s) within 7 days from date of receipt of the written
request for the change. If either party hereto objects to the change that party
must inform the other of its objection within 7 days from date of receipt of the
written request for the change, failing which the proposed change shall be taken
as approved by that party.
6.1.3
The Purchase Price for the Equipment shall be adjusted as mutually agreed
between SELLER and BUYER to account for any changes to the Equipment which are
made hereunder. Any delays occasioned as a result of such changes shall extend
SELLER'S performance obligation hereunder for a reasonable length of time as
mutually agreed between SELLER and BUYER which shall at least equal the period
of such delay.
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7.0 DELIVERY
Equipment shall be shipped F.O.B. Akron, Ohio USA or F.O.B. point of
manufacture. SELLER shall have the right to select the carrier unless the
carrier is designated by the BUYER, and upon delivery of the Equipment by the
SELLER to the carrier, the carrier shall be deemed to be the agent of the BUYER
and thereafter the risk of loss shall be on the BUYER.
8.0 WARRANTY
8.1
SELLER warrants that the Equipment manufactured and delivered by it hereunder
shall (a) be free from defect in workmanship under normal use and service, (b)
conform to the specifications and all applicable laws and regulations (except as
otherwise expressly stipulated in the Agreement.) The warranty under this
section 8.1 shall extend only to BUYER. No other warranty, whether express,
implied or statutory including, without limitation, warranties as to
merchantability, fitness for a particular purpose, or infringement, or arising
from or under common law, multilateral or bilateral treaties, or course of
dealing or usage of trade or otherwise shall exist with respect to the
equipment.
8.2
All claims under such warranty shall be made in writing setting forth the
alleged defect in sufficient detail to permit the identification thereof by
SELLER and shall be delivered to SELLER prior to the expiration of one (1) year
from the passing of the acceptance tests in accordance with acceptance criteria
set forth in Exhibit F attached hereto, or be barred. Upon receipt of a timely
claim, SELLER shall have the option either to inspect the Equipment claimed to
be defective, while in BUYER's possession or to other designated site, at
BUYER's expense, for SELLER's inspection. SELLER shall repair or, at its option,
replace free of charge, any such Equipment which SELLER reasonably determines to
be in breach of such warranty excluding normal wear and tear. SELLER shall ship
the repaired or replaced Equipment to BUYER F.O.B. point of shipment designated
by SELLER; provided, however that if in SELLER's judgment circumstances are such
as to preclude the remedy of a breach of such warranty by repair or replacement,
SELLER shall refund to BUYER by issuance of credit or otherwise, any part of the
Purchase Price theretofore paid to SELLER.
8.3
Any installation, operation, use, maintenance, or application of any Equipment
other than according to the capacities, conditions, and instructions published
by SELLER or approved in writing by SELLER, or any improper storage of Equipment
or the substitution in or with any
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product of integral, reciprocating, or related parts not approved in writing by
SELLER, shall void the warranty under this Section 8.
8.4
In the event any component of the Equipment is purchased by SELLER from a third
party, SELLER will extend to BUYER all applicable warranties or remedies
extended to SELLER by such third party; provided however, that such extension
shall not impose any additional obligation on SELLER and such warranties or
remedies shall be permitted by such third party to be so extended. All
limitation of liability concerning such third party warranties or remedies shall
apply to BUYER to the same extent as it applies to SELLER. SELLER shall use its
best efforts to execute any instruments or other documents required to extend
such third party warranty and remedy to BUYER. BUYER shall contact SELLER for
warranty provisioning covered by third party components.
8.5
SELLER shall charge, and BUYER shall pay, for all non-warranty service with
respect to the Equipment at a rate of $65 per hour, per man, plus all applicable
transportation and living costs.
8.6
The production and output references for the Equipment are subject to various
external factors not within SELLER'S control, including, but not limited, to
material and process formulation management and/or normal and regular
maintenance of the Equipment. Accordingly, SELLER makes no express or implied
guarantees concerning production or output capacities of the Equipment.
8.7
SELLER makes no warranties express or implied, of any kind or nature including
the warranties of merchantability or fitness for a particular purpose,
concerning the process by which, or the quality of, the end product to be
produced on the Equipment.
9.0 LIMITATION OF LIABILITY
The parties hereto expressly agree that repair, replacement or refund of the
Purchase Price shall be the exclusive remedy for any breach of warranty or any
other claim in respect of the Equipment, including, without limitation, those
based upon contract, warranty, including, without limitation, those based upon
contract, warranty, tort, or strict liability. Notwithstanding any other
provision herein, in no event shall SELLER or any of its subcontractors or
suppliers be liable for removal or installation costs, downtime, damage to other
property, loss of business or
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profits, or any similar or dissimilar incidental special or consequential
damages of any nature arising at any time or from any cause whatsoever. In no
event shall BUYER be liable for an amount greater than the Purchase Price plus
any adjustments or additions thereto as expressly provided in this Agreement.
10.0 PROPERTY AND PATENT RIGHTS
10.1
SELLER retains for itself all property rights in and to all designs, inventions
and improvements pertaining to the Equipment or any component thereof invented
or discovered by SELLER and to all patents, trademarks, copyrights and related
industrial property rights arising out of SELLER'S discovery or invention.
BUYER shall not assert any rights to property rights retained by SELLER in
accordance with this Section 10.
In the event that any invention and/or improvement pertaining to the Equipment
or any component thereof is invented or discovered by SELLER prior to
fabrication/manufacture of the Equipment or any component thereof, SELLER shall
offer but is not obligated to incorporate such invention and/or improvement into
the Equipment or any component thereof to BUYER at an additional charge, and
BUYER has the option whether to accept or reject such an offer as determined by
SELLER.
10.2
SELLER retains exclusive rights to all engineering drawings. BUYER agrees to
assert no claims to nor expect to receive any machine drawings beyond those to
be supplied under this Agreement or necessary for normal, routine maintenance of
the Equipment.
10.3
SELLER shall indemnify and hold harmless BUYER from any claim, suit or
proceeding brought by a third party against BUYER based on a claim that the
Equipment furnished hereunder infringes any patent, copyright, trade secret,
trademark or other proprietary right; provided, however, that BUYER shall give
SELLER prompt notice in writing of the assertion of any such claim and all
authority, information and assistance required for the defense of the same.
SELLER will defend any such suit or proceeding, and pay any damages and costs
awarded therein against BUYER, and in the event that the use or sale of the
Equipment is enjoined, SELLER shall, at its option and its own expense either
(i) replace the Equipment with non-infringing products; (ii) procure for BUYER
the right to continue using the Equipment; or (iii) as a last resort, refund to
BUYER the purchase price for any infringing Equipment. SELLER shall have no
liability to
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BUYER for any infringement based upon: (a) the use of the Equipment furnished
hereunder with any other device, software or data not supplied to BUYER by
SELLER; or (b) BUYER's alteration of the Equipment.
11.0 CANCELLATION
11.1
In the event that BUYER requests SELLER to stop work or cancels this Agreement
or any part thereof, which for purposes of cancellation becomes effective from
the date of opening of the letter of credit, for any reason other than SELLER'S
breach of its obligations contained in this Agreement, cancellation charges
shall be paid to SELLER as follows:
Any and all work that is complete or scheduled for completion within 30 days of
the date of notification by BUYER in writing to stop work or notification of
cancellation, shall be invoiced and paid in full.
All sums paid to date shall be fully earned and non-refundable, and SELLER shall
invoice BUYER within 30 days for any additional charges required to reimburse
SELLER for costs incurred to date that exceed the amount paid from date of
termination.
11.2
For work in progress, other than work covered by Section 11.1, hereof, and any
materials and supplies procured, or for which definite commitments have been
made by SELLER in connection with BUYER'S order and which cannot be canceled by
SELLER without liability or obligation, BUYER shall pay the actual costs for
such materials and supplies and, if applicable, SELLER'S overhead expenses
determined in accordance with SELLER'S standard accounting practices
consistently applied, plus an amount equal to fifteen percent (15%) of such
total, BUYER or BUYER'S designee shall have the right to audit SELLER'S records
concerning such material, supplies, and overhead expenses.
BUYER shall promptly instruct SELLER as to the disposition of Equipment canceled
pursuant to this Section 11, hereof, and SELLER shall, if requested, hold the
Equipment for BUYER'S account. All costs of storage, insurance, handling, boxing
or other costs in connection therewith shall be borne by BUYER and BUYER shall
bear all risks of loss.
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12.0 APPLICABLE LAWS
12.1
Any writ or other notice of legal process shall be sufficiently served on SELLER
if delivered to SELLER'S office at the following address:
ACC Automation Co.
P. O. Box 569
475 Wolf Ledges Parkway
Akron, OH 44309
Attn: President
12.2
The parties hereto hereby irrevocably agree that any legal action or proceeding
against either of them with respect to this Agreement and any transaction
contemplated hereby shall be brought in the courts of the State of Ohio located
in Cuyahoga county, or of the United States of America for the Northern District
of the State of Ohio, and by execution and delivery of the Agreement, the
parties hereby irrevocably submit to the jurisdiction of each such court.
13.0 COMPLETE AGREEMENT; AMENDMENT
This Agreement shall constitute the entire Agreement between the parties
relating to the subject matter thereof and the Equipment provided pursuant
thereto, and shall supersede all previous communications or understandings
between BUYER and SELLER with respect to the subject matter hereof, and except
as expressly set forth herein, no alteration or addition to this Agreement shall
be binding on SELLER and BUYER unless it is in writing and signed by a duly
authorized officer of SELLER and BUYER respectively.
14.0 WAIVER OF TERMS AND CONDITIONS
Failure or delay of either party to insist upon strict performance of any of the
terms and conditions of this Agreement or to exercise any rights or remedies
provided herein or by law, shall not release the other party from any of the
obligations of this Agreement and shall not be deemed a waiver of any right of
the other party to insist upon strict performance hereof or of any rights or
remedy of the other party as to any prior or subsequent default hereunder.
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15.0 INDEMNIFICATION
15.1 INDEMNIFICATION BY BUYER
BUYER shall protect, defend, indemnify and hold harmless SELLER, its directors,
officers, employees, agents and any other person acting for or on behalf of
SELLER from and against any and all expenses, claims, actions, liabilities,
damages, and losses of any kind whatsoever (including, without limitation,
attorneys' fees and expenses) actually or allegedly resulting from one or more
of the following;
15.1.1
Inaccurate or faulty specifications, designs, data, or criteria furnished by
BUYER to SELLER (BUYER'S specifications).
15.1.2
Any infringement or alleged infringement of any patent, trademark or other
proprietary right arising out of SELLER's compliance with BUYER's
specifications.
15.1.3
Changes in engineering specifications, data, designs or criteria made by BUYER.
15.1.4
BUYER's or any of its employees, agents, or contractors' negligence or willful
misconduct in the performance or non-performance of its obligations under this
Agreement.
15.1.5
The failure of BUYER, its officers, directors, agents, employees or anyone
acting through or on behalf of BUYER, to operate the Equipment in accordance
with manuals, directions or other operating specifications furnished by SELLER
to BUYER.
15.1.6
The modification, alteration or change of the Equipment or any component,
subassembly or part thereof without the prior written consent of SELLER.
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15.1.7
Any lack of quality of good workmanship, or any failure in performance, of any
product manufactured by BUYER, whether or not such product is manufactured,
inspected, or tested with the aid or use of the Equipment, training or any other
data or services furnished or recommended by SELLER.
15.1.8
Any installation, manufacture, and/or fabrication of the Equipment or any
component or part thereof by BUYER or any contractor, subcontractor or other
third party retained, hired, or employed by BUYER, whether directly or
indirectly.
The provisions of the section 15.0 shall survive the delivery of and payment for
all equipment under this Agreement.
With respect to the foregoing indemnification, BUYER expressly waives any and
all rights of immunity which it may be afforded under the Workers' Compensation
laws as enacted and amended from time to time in the state jurisdiction
(domestic or foreign) where the principal place of business of the BUYER is
located or where the BUYER has occasion to use or operate the Equipment, or
where the injury, loss or damage occurred.
15.2 INDEMNIFICATION BY SELLER
SELLER shall indemnify, defend, save and hold BUYER, including its directors,
officers, employees, agents and anyone else acting for or on its behalf,
harmless from and against any and all liability, claims, damage, loss, demands,
judgements and actions for personal injury including death or property damage,
which arise or are claimed to arise out of, result from or connected with:
15.2.1
SELLER'S sole negligence or intentional misconduct in the performance or
non-performance of its obligations under this Agreement.
15.2.2
Notwithstanding anything contained in this Agreement to the contrary, under no
circumstance(s) will SELLER'S obligation to indemnify BUYER in accordance with
this Agreement including any
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warranty obligation or obligation related to any claim of breach or any other
claim, exceed in the aggregate, the amount of loss to BUYER (excluding
consequential damages of any kind), or the Purchase Price to be paid by BUYER to
SELLER for the Equipment, whichever is less.
16.0 TECHNICAL INFORMATION AND CONFIDENTIALITY
16.1
BUYER understands it may acquire or have access to information under this
Agreement that is owned by SELLER and considered confidential. Concurrently,
SELLER understands it may acquire or have access to information under this
Agreement that is owned by BUYER and considered confidential.
This information may include research and development projects as well as data
relating to them, formulations, designs, products, processes, supplies, methods
of manufacture, drawings, specifications, ideas, inventions, and other
information, whether patentable or copyrightable or not (the "Technical
Information"). The Technical Information of the one party shall not be
furnished, disclosed, distributed or otherwise used by the other party, its
affiliates and/or subsidiaries, employees or agents for any purpose whatsoever
without the express written consent of the other party.
In no event shall the obligations of confidentiality extend more than five (5)
years from date of this Agreement.
17.0 BUYER'S RIGHT TO INSPECT
BUYER shall from time to time and during normal business hours and upon one week
prior notification have the absolute right as it deems fit, whether by itself,
its servants and/or agents to inspect the progress of fabrication of the
Equipment at the premises of SELLER and/or its contractors.
18.0 TAXES
BUYER shall be responsible for the payment, if any, of all sales and/or use
taxes imposed upon, or associated with the sale of the Equipment by the SELLER
to BUYER. To the extent BUYER is exempt from paying sales and/or use taxes,
BUYER will furnish SELLER with an appropriate tax exemption certificate.
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The price determined in paragraph two is the total price to be paid to SELLER by
BUYER inclusive of all taxes, fees, and duties and/or levies in the United
States.
19.0 NOTICES
Unless otherwise specified herein, all notices, requests or other communications
to or upon any of the parties hereto shall be in writing and shall be sent by
prepaid registered post, telex or cable. Any such notices, requests or other
communications to SELLER shall be sent to SELLER in the manner aforesaid.
Any such notices, requests or other communication to BUYER shall be sent to the
address of BUYER here above written. Any notice, request or other communication
sent by registered post shall be deemed to have been delivered at the time when
in the ordinary course of such post it would have been so delivered and in the
case of despatch by telex or cable on the business day immediately following the
date of despatch. The controlling language for all communication between the
parties hereto shall be English.
20.0 CAPTIONS
The captions herein are inserted for convenience only and shall not define,
limit, extend or describe the scope of the Agreement or affect the construction
hereof.
21.0 NOUNS AND PRONOUNS
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms and the singular form of names
and pronoun shall include the plural and vice-versa.
22.0 SEVERABILITY
If any provision hereof is held invalid or at variance with the present or
future requirements of the law applicable thereto, such provision alone shall
become inoperative, and the rights of the parties hereto shall in no manner be
prejudiced by reason of the inclusion of such provision in this Agreement.
The parties hereto shall negotiate in good faith to replace such unlawful
provision with a lawful provision which accomplishes to the fullest possible
extent the intent and purpose of the provision so declared unlawful.
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23.0 MERGER PROVISIONS
This Agreement constitutes the entire Agreement among the parties pertaining to
the subject matter hereof and supersedes all prior and contemporaneous
Agreements and understandings of the parties in connection therewith.
24.0 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which taken together shall constitute
one and the same instrument, provided however that the English text of this
Agreement shall be considered the original version of this Agreement and shall
be binding upon the parties hereto.
25.0 EXHIBITS
Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, and O hereto shall be read
and construed as an essential part of this Agreement.
EXHIBIT A - General Machine Specifications
EXHIBIT B - General Machine Layout
EXHIBIT C - Selected Machine Conceptual Engineered Drawings
EXHIBIT D - Scope of Supply by BUYER
EXHIBIT E - Project Schedule
EXHIBIT F - Acceptance Tests and Documentation
EXHIBIT G - Operations to Be Controlled by the PLC
EXHIBIT H - Pricing EXHIBIT I - Spare Parts
EXHIBIT J - Pre-Installation Requirements
EXHIBIT K - Progressive Payment Schedule
EXHIBIT L - Installation Summary
EXHIBIT M - Training
EXHIBIT N - Freight / Shipping
EXHIBIT O - Plant Layout
26.0 AGREEMENT BINDING ON SUCCESSORS-IN-TITLE
This Agreement shall be binding on the successors-in-title of SELLER and the
successors-in-title of BUYER.
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27.0 ASSIGNABILITY
This Agreement and all rights and obligations hereunder shall not be assigned in
whole or in part by the SELLER without the prior written consent of the BUYER,
except that without such consent, SELLER may assign this Agreement to any
person, corporation or other entity to which SELLER or substantially all of
SELLER's business with respect to the Equipment, is transferred by merger,
consolidation, sale of assets or otherwise, or to any subsidiary or affiliated
corporation. The parties hereto hereby expressly agree that the restriction on
assignment contained in this Section does not affect the BUYER, provided,
however, and notwithstanding any assignment by BUYER.
BUYER shall remain liable in all respects concerning all obligations imposed
upon it under this Agreement, including without limitation that relating to the
payment of the Purchase Price set forth in Section 2.0.
28.0 FIELD AND TECHNICAL SUPPORT
SELLER will provide to BUYER field and technical support personnel plus living
expenses in the field, to supervise installation, trial runs and commissioning,
on a time and material basis at a cost of $65.00 per hour, per man. BUYER to
provide for field labor, field material, and associated erection costs for
installation of equipment.
Any payments to SELLER by BUYER under this paragraph shall be paid in lawful
United States currency, in accordance with expended amount. Invoices will be
mailed by SELLER every 2 weeks based upon actual accrued expenses at the rates
specified in this Agreement. Payment is due 7 days after receipt of invoice.
29.0 REPRESENTATION OF AUTHORITY
The parties further represent and warrant to the other that they have the full
and absolute authority to enter into this Agreement and the individual signing
this Agreement on their behalf has the authority to do so. This Agreement when
executed shall constitute the legally binding obligation of the parties hereto.
30.0 SOFTWARE TECHNOLOGY LICENSE
SELLER is the owner of certain proprietary and confidential computer software
technology used in connection with the operation and programming of the
Equipment. SELLER hereby grants to BUYER a fully paid up non-exclusive license
to use such technology only in connection with the Equipment which is the
subject of this Agreement. The grant of the license hereunder is conditioned and
contingent upon payment in full of the purchase price for the Equipment.
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This license expressly permits BUYER to deliver the Equipment, the computer
software technology, the drawings, specifications, instructions, and other
written materials to a third party who will maintain possession of all such
property and operate same for the benefit of BUYER under a written contract,
provided that such written contract restricts such third party from use of all
such property other than as permitted to BUYER according to the terms hereof.
This license expressly prohibits BUYER or any third party from manufacturing
another unit of the Equipment or any component thereof, or any variation of such
equipment or component.
ACC AUTOMATION CO.
/s/ Thomas A. Doland
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SIGNATURE
Thomas A. Doland, President
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NAME AND TITLE
7/16/97
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DATE
WILSHIRE TECHNOLOGIES, INC.
/s/ John Van Egmond
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SIGNATURE
President & CEO
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NAME AND TITLE
7/28/97
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DATE