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EXHIBIT 10.29
THIS AGREEMENT made and entered into as of the 12th day of September,
1995, by and between CLARK MATERIAL HANDLING COMPANY, a Kentucky corporation
with offices at Lexington, Kentucky ("Buyer") and NISSAN FORKLIFT CORPORATION,
NORTH AMERICA, an Illinois corporation with offices at Marengo, Illinois
("Seller") .
PURPOSE
Buyer manufactures and distributes certain industrial trucks and
related accessories, attachments and parts through a network of dealers and
subsidiaries in the United States and Canada.
Buyer wishes to purchase from Seller certain industrial trucks and
related accessories, attachments and parts for distribution in the United States
and Canada under the Clark name through its distribution network.
Seller manufactures and distributes industrial trucks and distributes
service and repair parts for those industrial trucks. Seller wishes to sell
certain of its industrial trucks and parts to Buyer for distribution under the
Clark name through the Buyer's distribution network.
The purpose of this Agreement is to establish the terms and conditions
upon which Seller will sell and deliver to Buyer and Buyer will purchase certain
of Seller's industrial trucks and related accessories, attachments and service
and repair parts both during the term of this Agreement and after termination.
NOW, THEREFORE, in consideration of Buyer's purchase of products and of
the mutual Agreements contained herein, the parties agree as follows:
1. SALE AND PURCHASE
1.1 Seller will sell and deliver to Buyer and Buyer will purchase
from Seller, in accordance with this Agreement, those
products, accessories and service and repair parts, to which
this Agreement applies, which are ordered by Buyer and
accepted by Seller during the term of this Agreement.
1.2 This Agreement applies to the basic lift trucks, including
improvements thereto, and the accessories and optional
equipment and specifications for the lift truck described in
Schedule 1, attached hereto and made a part hereof, together
with any modifications thereto approved or authorized in
accordance with the provisions thereto approved or authorized
in accordance with the provisions of this Agreement
("Products") . Products may be added to Schedule 1 by written
agreement of the parties. This Agreement applies to any
service or repair parts for
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such Products, accessories or optional equipment sold to Buyer
pursuant to this Agreement ("Parts"). As used in this
Agreement, unless otherwise indicated, the term "Products"
includes accessories and optional equipment, but not service
and repair parts.
1.3 Set forth in Schedule 2, attached hereto and made a part
hereof, is a list of dealers which as of the date of this
Agreement are authorized dealers of both Buyer and Seller,
which list may be amended from time to time. Buyer and Seller
reserve the right at any time to appoint, change, or end
relationships with their respective dealers. However, the
parties will notify each other of changes to Schedule 2.
Unless otherwise agreed by the parties, the total number of
authorized dealers of both Buyer and Seller shall not exceed
ten (10) at any given time during the term of this Agreement.
1.4 Provided Buyer places at least three hundred (300) firm orders
for Products during (i) the first eighteen (18) months of this
Agreement, and (ii) each subsequent twelve (12) month period
of this Agreement, during the term of this Agreement, Seller
shall not enter into any new OEM agreement or new OEM
arrangement with a third party for sale of Products in North
America.
2. ORDERS
2.1 Beginning on or about September 1, 1995 and on the first of
each calendar month thereafter, Buyer shall deliver to Seller
Buyer's best forecast of orders to be placed by Buyer during
the following twelve (12) calendar months. This rolling
forecast will not constitute an order for Products, and Buyer
does not assume any obligation to purchase all or any portion
of such forecasted quantities. Buyer shall submit firm orders
to Seller on an ongoing basis throughout the month. In the
event Buyer's firm orders for any given month exceed the
monthly forecast, Seller may adjust the delivery times as
Seller deems necessary. Subject to the immediately preceding
sentence and Sections 4.1 and 4.2 hereof, orders will be
filled within Seller's normal lead time. Seller's purchase
order sheet (or other mutually agreed upon document or system)
will be used to order Products and will be issued periodically
as required.
2.2 All contracts of sale will be upon the terms and conditions
set forth in this Agreement. No different or additional terms
or conditions set forth in any other
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documents, including but not limited to Buyer's purchase order
sheet or forecast, will add to or modify in any way the terms
and conditions of this Agreement.
3. DELIVERY OF PRODUCTS
3.1 Subject to Section 2.1 above, firm order quantities of
Products placed by Buyer and accepted by Seller will be
delivered within Seller's normal lead time for a particular
model of Product in effect at time of order acceptance. Seller
will periodically supply Buyer with a lead time schedule which
will establish the normal lead times by model of Products for
standard Products, until such time as Seller supplies Buyer
with a new lead time schedule. Delivery schedules for special
products (products with special equipment or options not
described in Schedule 1) and for Products in excess of
forecasted quantities will be established by mutual Agreement.
3.2 Within twenty-four (24) hours after the issuance of any
purchase order sheet for firm orders of Products, Seller will
either confirm the delivery schedule specified by Buyer (which
delivery schedule must be within Seller's then current normal
lead times) or advise Buyer of the earliest delivery schedule
which is within Seller's then current normal lead times which
Seller will be able to meet, subject to Sections 2.1 and 3.1
above.
3.3 Deliveries will be F.O.B. Seller's manufacturing facility.
Title to Products shall pass from Seller to Buyer upon
delivery of Product to Buyer at Seller's manufacturing
facility, or upon delivery to a carrier for transportation to
Buyer, whichever occurs first. Deliveries will be to Buyer's
location in Lexington, Kentucky. Prices include all reasonable
and proper preparations for North American shipment. Prices
will be equitably adjusted for special packing or shipping
preparations requested by Buyer. Freight charges will be borne
by Buyer and invoiced by Seller.
4. CANCELLATION
4.1 Buyer may at any time upon written notice up to sixty (60)
days prior to the scheduled delivery date cancel all or any
portion of orders placed with Seller. For Product orders
canceled pursuant to this provision, Buyer will be subject to
a cancellation charge of $400.00. Such cancellation charges
will be waived to the extent that the order is reinstated
within
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thirty (30) days. New delivery dates for reinstated orders
will be based on mutual agreement. In addition, Buyer will be
subject to an additional cancellation charge for special or
non-standard attachments, accessories or optional equipment
which are not listed in standard price pages to cover the
non-recoverable cost of such special or non-standard
attachment, accessory or optional equipment, including, but
not limited to, the cost of the attachment, accessory or
equipment, freight and labor.
4.2 Buyer will be subject to a $200.00 surcharge for all changes
to orders made within sixty (60) days before a scheduled
delivery date, plus costs of option or rework, if any,
incurred by Seller. If a single change to an order contains
multiple changes, it will still be subject to a maximum
surcharge of only $200.00. Changes in orders may result in
changes to delivery times. Seller, at its sole discretion,
reserves the right to reject any or all changes to orders.
5. PRICES, PAYMENT
5.1 Prices for Products, accessories and options will be Seller's
then current Manufacturer's Suggested Selling Price ("MSSP")
for such Products, accessories and options, less (i) the
discounts stated in Schedule 1, and (ii) the warranty
allowance stated in Schedule 3.
5.2 In the event Seller at any time changes its MSSP for any
Products, firm orders for Products previously placed by Buyer
and accepted by Seller and firm orders for Products placed by
Buyer and accepted by Seller within thirty (30) days of the
announcement of the change in MSSP which are within one
hundred fifty percent (150%) of the most recent forecasted
quantity for such thirty (30) day period (or two hundred
percent (200%) of the most recent forecasted quantity for any
single specific model of five (5) units or less) shall be
priced at the price in effect prior to such change. All other
orders, including but not limited to orders in excess of most
recent forecasted quantities for such thirty (30) day period,
shall be priced at the changed price.
5.3 Prices for Parts will be Seller's U.S. dealer net price less
(i) 18.5% and (ii) the warranty allowance stated in Schedule
3.
5.4 Buyer will pay all invoices for Products and Parts within
thirty (30) days after the date the invoice is received by
Buyer. Buyer will receive a discount of one percent (1%) off
of the invoice amount for Products and
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Parts in the event such invoice is paid within ten (10) days
after the date such invoice is received by Buyer.
6. WARRANTY ON PRODUCTS
6.1 Within thirty (30) days of invoice date or prior to shipment
of a Product from Buyer's location to a dealer or customer,
whichever comes first, Buyer may notify Seller's designated
representative of substantial defects in such Products.
Subject to the written approval of Seller's designated
representative, Seller will make arrangements for corrections
to such Products which Seller deems appropriate at Seller's
expense.
The above warranty is in lieu of all other warranties for
Products or Parts, express or implied, and states Seller's
entire obligation with respect to defects or nonconformities
in Products or Parts. THERE ARE NO IMPLIED WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. Seller
shall not be liable for incidental, special or consequential
damages for this warranty or any other reason whatsoever.
6.2 Seller will, after net amounts for each and every invoice to
Buyer are computed for Products and Parts (such net amounts
shall be arrived at by applying the discounts set forth in
Schedule 1 for Products and the discount set forth in Section
5.3 for Parts), extend a warranty allowance as provided in
Schedule 3, and the resulting amount will be the final net
amount of the invoice.
The parties agree to review Buyer's warranty payments to its
dealers and customers for Products and Parts (based on Buyer's
standard warranty in effect on the date of this Agreement)
every six (6) months. The parties agree that should Buyer's
net warranty payments be greater or less than the warranty
allowances provided in Schedule 3 for the relevant Products
and Parts, the parties will negotiate in good faith to adjust
the standard warranty allowance.
Warranty payments shall be defined as the sum of all warranty
repair labor as allowed within Buyer's standard rate guide and
all other associated costs (including travel), plus Buyer's
net purchase price for parts used in the warranty repairs,
based upon Buyer's standard warranty in effect on the date of
this Agreement.
6.3 The parties agree that the warranty allowance provided by
Schedule 3 will be used by Buyer to cover all costs
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to provide warranty coverage to Buyer's dealers and customers
for Products and Parts, and said warranty allowance, as may be
adjusted from time-to-time in accordance with this Agreement,
is Seller's only warranty obligation for Products and Parts
supplied under this Agreement.
Notwithstanding the foregoing, the parties agree that costs
incurred by Buyer for Seller-initiated field campaigns and
recalls will be wholly borne by Seller. Such costs will not be
included in calculations used to determine potential
adjustments in the warranty allowance under Section 6.2.
6.4 warranty recoveries from vendors shall be the sole
responsibility of Buyer. Seller's sole responsibility with
respect to warranty recoveries shall be to notify, upon
Buyer's written request, appropriate vendors that Buyer is
authorized by Seller to seek warranty recoveries for
components and parts supplied by such vendor.
6.5 Buyer shall, on a quarterly basis and for the duration of this
Agreement, provide Seller with an itemized listing of all
claims or incidents relating to the warranty allowance which
have occurred during the previous quarter for which the report
is made.
6.6 The warranty allowance does not apply to defects or
nonconformities in Products or Parts caused by Buyer. The
warranty allowance also does not apply to normal service or
maintenance items such as tune-up parts, filters, motor
brushes, wheels, tires and other parts, that are expected
normal replacement items which occur due to normal use of the
Products.
7. QUALITY PLAN
7.1 Buyer may, upon reasonable advance notice to Seller, at its
option and expense, review and inspect Seller's quality
assurance program and product quality at Seller's facilities.
Seller will provide Buyer's representatives with good faith
cooperation and such access and facilities including testing
and inspection devices and equipment, as may reasonably be
required by Buyer's representatives to conduct such review and
inspection. Buyer will use its best efforts consistent with
accomplishing its review and inspection to avoid disruption or
delay of Seller's operations. Inspection or review of Seller's
quality assurance program or products at Seller's facilities
will not constitute
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acceptance of any Products and will not relieve Seller of
responsibility for any defect in any Product.
7.2 Seller further warrants that if Seller at any time has reason
to believe that any defect in design or manufacture may be
present in Products or Parts sold or to be sold pursuant to
this Agreement, Seller will promptly advise Buyer and will
cooperate with Buyer to determine whether the defect is
present and, if so, will cooperate with Buyer in good faith to
correct it. This provision will not be construed to expand
Seller's warranty to Buyer or to relieve Seller of its
responsibility for the consequences of any such defect.
8. INDEMNITY
8.1 Subject to Section 8.2 hereof, Seller will indemnify and hold
Buyer harmless from and against any and all claims for injury
to or death of persons or damage to property (including
reasonable attorneys' fees) in any manner caused by, arising
from, incident to, connected with, or growing out of any
defect in the materials, manufacture or design of the Products
and Parts sold to Buyer under this Agreement, except claims
caused by Buyer's negligence, misconduct or claims subject to
Section 8.2 hereof. Buyer shall notify Seller in writing
within ten (10) days after Buyer receives written notice of
any such claim. Seller further agrees to secure and maintain
during the term of this Agreement a public liability policy or
policies providing (a) products liability coverage with broad
form vendor' s endorsement protecting Buyer with respect to
claims arising from Products and Parts sold to Buyer pursuant
to this Agreement; and (b) providing contractual liability
coverage for the hold harmless clause set forth above in this
section, each of such insurance coverage to have bodily injury
limits of not less than $5 Million per person and $5 Million
per occurrence and property damage limits of not less than $5
Million per occurrence. Seller will upon request furnish Buyer
with a certificate from Seller's insurance carrier in a form
satisfactory to Buyer and will provide for thirty (30) days'
prior written notice from the insurance carrier to Buyer prior
to any cancellation or change reducing coverage.
8.2 Buyer shall be liable for, and will indemnify and hold Seller
harmless from and against any and all claims for injury to or
death of persons or damage to property (including reasonable
attorney's fees) in any manner caused by, arising from,
incident to, connected with,
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or growing out of (i) any defect in the design of any changes
or modifications made, authorized, approved or requested by
Buyer to the Products or Parts; or (ii) any changes or
modifications made, authorized, approved or requested by Buyer
to the manuals, warnings, decals or instructions. As used in
the immediately preceding sentence, "modifications made,
authorized, approved or requested by Buyer" shall include, but
not be limited to, safety gate switches. Buyer agrees to
secure and maintain during the term of this Agreement a public
liability policy or policies providing (a) products liability
coverage with broad form vendor's endorsement protecting
Seller from claims covered by this Section 8.2, and (b)
providing contractual liability coverage for the hold harmless
clause set forth above in this section, each of such insurance
coverage to have bodily injury limits of not less than $5
Million per person and $5 Million per occurrence and property
damage limits of not less than $5 Million per occurrence.
Buyer will upon request furnish Seller with a certificate from
Buyer's insurance carrier in a form satisfactory to Seller and
will provide for thirty (30) days prior written notice from
the insurance carrier to Seller prior to any cancellation or
change reducing coverage.
8.3 In the event of a claim which is subject to Section 8.1 or 8.2
above, the following shall apply:
a. Neither party shall enter into any settlement with a
plaintiff without the advice and prior written
consent of the other party;
b. Each party shall provide reasonable assistance and
cooperation to the other party in the defense of the
claim, including production of witnesses and
documents as requested;
c. Each party agrees to use its best efforts to avoid
taking positions in litigation which are adverse to
the other party.
d. In the event evidence indicating that the indemnified
party is not entitled to indemnification under
Section 8.1 or 8.2 hereunder, as the case may be, is
discovered after the indemnifying party has
indemnified and taken over the defense of the
indemnified party, then the indemnifying party shall
have the right to void Section 8.1 or 8.2, as the
case may be, ending any obligation to hold harmless
and defend the other party. In such event, neither
party shall object to or oppose the continued
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representation of the other party's attorney in such
litigation or otherwise.
9. PATENTS
9.1 Seller represents and warrants that the Products and Parts
ordered pursuant to this Agreement and their sale or use,
alone or in combination, according to Seller's specifications
or recommendations, if any, will not infringe any U.S. or
foreign patents, and Seller agrees to defend, protect and save
harmless Buyer, its successors, assigns, customers and users
of the Products and Parts, against all suits and from all
damages, claims and demands resulting from such alleged
infringements, and Seller further agrees that Seller will,
upon written request, defend or assist in the defense at
Seller's expense of any such suit.
10. TRADEMARKS ADVERTISING
10.1 Each Product sold to Buyer pursuant to this Agreement will
have affixed a nameplate, warning/instruction decals, and one
(1) or more of the trademarks specified by Buyer in the
distinctive form specified by Buyer in a suitable place to be
designated by Buyer. Seller will not acquire rights of any
kind under any of Buyer's trademarks; except the right to use
them in the manner permitted by this section, and will in no
event sell, distribute, or otherwise dispose of any Products
or Parts bearing any of Buyer's trademarks to any person, firm
or corporation other than Buyer without first removing the
trademarks or obtaining Buyer's express written consent.
10.2 All publicity and advertising concerning the sale of Products
and Parts bearing Buyer's trademarks shall be prepared under
Buyer's sole direction and control. Neither party will
disclose the existence of this Agreement, or any of its terms
and conditions to any other person, firm or corporation, or
advertise, or make any public announcements, or release any
publicity concerning this Agreement or the performance by
either party without the other party's written consent in each
instance, except as otherwise required by law.
10.3 Buyer shall not at any time during the term of this Agreement
or thereafter adopt, use or register a trademark, service
mark, trade name, trade dress, or otherwise any word or words
similar to any of Seller's trademarks, trade names or trade
dress for any purposes.
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11. TECHNICAL DATA
11.1 Seller will promptly provide at no charge five (5) copies of
its parts manuals, operator instructions and service and
repair manuals for Products listed in Schedule 1. Seller will
also furnish Buyer at no charge such available additional
non-proprietary engineering and technical data as Buyer may
reasonably request for the purpose of preparing appropriate
Product descriptions and specifications, advertising
literature, operator's manuals, service and repair manuals and
any similar materials ordinarily provided by Buyer with
respect to its own industrial trucks. Buyer may reprint or
copy all or any portion of the materials supplied for these
purposes, provided references to Seller and Seller's
trademarks are first deleted.
12. PRODUCT CHANGES
12.1 Seller shall have the right upon the earlier of (i) six (6)
months' prior written notice to Buyer, or (ii) the same notice
period given by Seller to its dealers to discontinue the
production of any Product.
12.2 Seller shall provide Buyer with forty-five (45) days' notice
in writing of material changes in (i) the outward appearance
of Products, or (ii) the performance specifications of
Products.
12.3 Buyer may request changes in form, fit or function of Products
by way of exterior design in order to provide product
differentiation from Seller's products. Such changes, if
agreed to by Seller, shall be made at the sole cost and
expense of Buyer.
12.4 In the event Seller discontinues the production of any
Product, Seller shall give Buyer the first opportunity, at
Seller's option, to purchase or license the technology related
to such Product, upon terms, conditions and prices mutually
agreed upon.
12.5 Seller shall have up to nine (9) months after the execution
date of this Agreement to obtain UL certification for Products
subject to this Agreement at Seller's expense. If any Product
has not been certified by UL within such nine (9) month
period, Seller shall pay Buyer Fifty Dollars ($50.00) per day,
until such time as all such certifications have been obtained.
Immediately upon receipt of such UL certification, Seller
shall provide Buyer with written confirmation of same, and all
Products delivered to Buyer shall
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thereafter include a decal or nameplate indicating compliance
with UL.
13. ENGINEERING AND SERVICE ASSISTANCE
13.1 During the term of this Agreement, Seller will provide on a
one-time basis at no additional charge service training for
Buyer's representatives at Seller's Marengo, Illinois
location. Buyer will be responsible for its own travel and
living expenses in connection with such training sessions.
13.2 Buyer will attempt to resolve service problems by written or
telephone communications with Seller's service department,
however, when and as reasonably requested and subject to
Seller's manpower constraints, Seller will provide a qualified
service representative to review and resolve service problems
at Buyer's location or at the location of the Products
anywhere in North America. Buyer will be responsible for
Seller's expenses with respect to such service calls.
13.3 Seller will also provide engineering assistance to approve
modifications and capacity ratings for various Seller-approved
standard modifications and for standard attachments for
prospective sales of Products to be delivered and for
modification of Products in the field. Seller will authorize
and approve by written authorization to Buyer any appropriate
changes to the Product nameplates which may be required by any
such changes to the attachments used with the Product or
standard modifications to the Product.
13.4 Buyer may from time-to-time request Seller to approve special
modifications. If Seller wishes to charge Buyer for
engineering work required to approve such modifications,
Seller will promptly advise Buyer in writing and provide a
quotation for such work. No such work will be performed except
by mutual agreement. All other requests to approve special
modifications will be promptly answered and approved or not
approved at no additional charge to Buyer.
14. SERVICE AND REPAIR PARTS
14.1 Seller will sell and deliver to Buyer and Buyer will purchase
from Seller the following classes of Parts which Buyer orders
during the term of this Agreement and within five (5) years
thereafter:
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1. Parts manufactured by Seller for Products sold to
Buyer;
2. Parts manufactured by other suppliers to Seller's
specifications for Products sold to Buyer.
14.2 During the term of this Agreement and for five (5) years
thereafter, Buyer will maintain a stock of Parts as it
determines is adequate to supply dealers. Seller will use
commercially reasonable efforts to ship emergency Parts orders
within 48 hours after the order is received. An order will be
considered an emergency Parts order if the Part is required to
repair a Product which is out of service and Buyer cannot
supply the Part from its stock.
14.3 Parts orders will be placed through Seller's on-line parts
ordering system, as set forth in Section 14.4 hereof. Parts
orders which are not placed through Seller's on-line parts
ordering system shall be subject to a $.10 charge per line.
14.4 Seller shall make available to Buyer, upon terms, conditions
and prices acceptable to Seller, Seller's on-line parts
ordering system. Buyer access to such system shall be limited
to use in connection with Products, and Buyer shall execute
such other agreements as Seller deems necessary in connection
with such use, including a confidentiality agreement, in form
and substance similar to Schedule 4, attached hereto and a
part hereof.
14.5 All Parts sales will be upon the terms and conditions of this
Agreement.
14.6 Buyer shall have the right, exercisable within thirty (30)
days following the end of the first year of this Agreement, to
return for full credit unsold Parts which Buyer purchased from
Seller, and which were contained in Seller's recommended parts
list, provided such Parts are new, unused and in resaleable
condition. Buyer shall arrange for and pay the cost of
returning such Parts to Seller.
14.7 Buyer shall have the right, exercisable within thirty (30)
days following the end of the second year of this Agreement
and the end of each succeeding year of this Agreement, to
return to Seller for full credit up to three percent (3%)
(dollar volume) of its annual parts purchases for stock
orders, provided such Parts are new, unused and in resaleable
condition. Buyer shall arrange for and pay the cost of
returning such
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Parts to Seller, plus pay a ten percent (10%) restocking
change.
14.8 In the event of overages, shortages or discrepancies in Parts
shipments, (i) if it is caused by Seller, return is allowed
anytime, and Seller pays freight, (ii) if it is caused by
Buyer, Buyer must return within thirty (30) days, at Buyer's
cost. Return allowed provided Parts are new, unused, and in
resaleable condition.
15. TERMINATION
15.1 The initial term of this Agreement shall be five (5) years
from the date first written above and will automatically be
extended for an additional one (1) year thereafter unless
terminated by either party upon written notice given at least
one hundred eighty (180) days prior to expiration of the term.
15.2 Either party may terminate this Agreement for failure by the
other party to perform or adhere to any promises or
obligations undertaken pursuant to this Agreement by giving
the other party sixty (60) days' written notice within which
to cure such default. If such default is not cured within the
60-day period, the party which gave the notice may terminate
this Agreement at any time thereafter upon written notice to
the other party.
15.3 Either party may terminate this Agreement immediately by
written notice to the other party if any of the following
events occur:
1. Any attempted transfer or assignment of this
Agreement or any right or obligation hereunder by the
other party unless the assignment is otherwise
permitted by this Agreement.
2. The filing of a voluntary petition in bankruptcy by
the other party.
3. The filing of a petition in bankruptcy against the
other party, provided it is not vacated within thirty
(30) days from the date of filing.
4. The appointment of a receiver or trustee for the
other party, provided such appointment is not vacated
within thirty (30) days from the date of such
appointment.
15.4 The termination of this Agreement will not affect or impair
the rights, liabilities and obligations of either
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party under any order issued prior to the termination, will
not relieve either party of any obligation or liability
accrued under this Agreement or pursuant to any order issued
prior to the termination, and will not relieve either party of
the continuing obligations pursuant to Section 6, Warranty on
Products, Section 7, Quality Plan, Section 8, Indemnity,
Section 9, Patents, Section 10, Trademarks Advertising, and
Section 14, Service and Repair Parts, which obligations will
survive any termination of this Agreement.
16. GENERAL
16.1 Notice to be given by either party will be in writing and may
be delivered by either telefax or prepaid, certified mail to
the following addresses:
Seller: Nissan Forklift Corporation, North America
240 N. Prospect Street
Marengo, Illinois 60152-3298
Attention: Vice President -
Sales and Marketing
Buyer: Clark Material Handling Company
610 West Second Street
Lexington, Kentucky 40508-1237
Attention: Vice President -
Sales and Marketing
Either party may change its address by written notice to the
other party.
16.2 Neither party will disclose any proprietary confidential
information to the other party and neither party will be
obligated to treat information as proprietary confidential
information unless the information is clearly identified as
confidential and the parties have entered a specific
nondisclosure Agreement regarding such information.
16.3 This Agreement will not be assigned by either party without
the written consent of the other party, except when the
assignment is made to any subsidiary of the parties or to a
successor to all or a substantial part of the business of
either of the parties. Unless otherwise agreed, no assignment
will relieve the party assigning of any duty to perform or any
liability for breach.
16.4 This Agreement encompasses the entire Agreement between the
parties respecting the sale and purchase of Products and Parts
covered by this Agreement and supersedes any
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and all previous Agreements, memoranda, negotiations or other
understandings of the parties with respect thereto.
16.5 Any failure by either party hereto to enforce, at any time,
any term or condition of this Agreement will not constitute,
nor will it be construed as, a waiver of that party's right
thereafter to enforce each and every term and condition of
this Agreement.
16.6 The invalidity or unenforceability of any of the provisions of
this Agreement or the application thereof shall not affect or
impair the validity or enforceability of any other provision
herein. Any provision of this Agreement that is invalid,
illegal or unenforceable because of contravention of any
applicable law, statute or government regulation shall be
severed from this Agreement, and the remaining provisions of
this Agreement will remain in full force and effect.
16.7 This Agreement and all orders issued pursuant to this
Agreement will be governed by and construed in accordance with
the laws of the State of Illinois. Any provisions in Buyer's
standard purchase order terms specifying warranty on Products
or Parts or requiring arbitration of claims arising out of any
purchase order are deleted and will be void and have no force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate originals by their duly authorized representatives as of
the day and year first written above.
CLARK MATERIAL HANDLING COMPANY NISSAN FORKLIFT CORPORATION,
NORTH AMERICA
/s/ Martin M. Dorio, Jr. /s/ K. Yamada
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Signature Signature
Name: Martin M. Dorio, Jr. Name: K. Yamada
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Title: President Title: President
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Date: 12 September 1995 Date: 12 September 1995
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15