AGREEMENT
THIS AGREEMENT (this “Agreement”) is made as of this __ day of __________, 200_, (the “Effective Date”) by and between _________________. (“Purchaser”) and _________________ (“Seller”).
W I T N E S S E T H:
WHEREAS, Purchaser wishes to purchase ________________ from Seller; and
WHEREAS, Seller is willing to sell such _____________ to Purchaser;
NOW, THEREFORE, in consideration of the covenants, conditions and payments hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.Price, Quantity, Shipping Instructions, and Payment Terms. Seller will sell to Purchaser __ (the “Goods”) [RFP ______, dated ____], pursuant to the terms of this Agreement and the price, payment, delivery, and other terms set forth in the Appendix attached hereto and made a part hereof (the “Appendix”). The Goods will be shipped ___, in accordance with the details specified in the Appendix. Nothing contained in this Agreement shall be construed as a commitment by Purchaser to purchase any Goods, or minimum quantity thereof, from Seller.
2.Term. The term of this Agreement shall begin on the Effective Date, and shall end on ___________ (the “Term”) unless earlier terminated in accordance with this Agreement.
3.Title and Risk of Loss. Title to and risk of loss of all Goods furnished hereunder shall remain with Seller until receipt, inspection, and acceptance of the Goods by Purchaser. Seller warrants that it has clear title to the Goods and that there is no outstanding hostile claim against or security interest in the Goods held by a third party.
4.Non-Disclosure. All information, including but not limited to, financial statements, product information, manufacturing capabilities, passwords, documents, data and business records, which is disclosed to Purchaser by Seller or which Purchaser observes or comes into contact with during the Term of this Agreement, whether generated by Seller or contractor of Seller, shall be deemed “Confidential Information” and the sole and exclusive property of Seller. Purchaser shall take all reasonable measures to maintain the confidentiality of said Confidential Information by its employees, agents, representatives and couriers. Purchaser shall not use the Confidential Information for any purposes other than to perform its obligations hereunder and shall not disclose any Confidential Information to any third party without the prior written consent of Seller. Purchaser acknowledges that all right, title, and interest in and to said Confidential Information, including the right to produce, extract, or exhibit said Confidential Information to any third party and any intellectual property rights relating to said Confidential Information, exist in Seller only. Purchaser shall return such Confidential Information promptly upon the expiration or termination of this Agreement.
5.Warranties. Notwithstanding any limitations to the contrary in Seller’s invoice and/or sales documentation, Seller expressly warrants that:
(a)all Goods will conform to [the purchaser requirements] and any other applicable plans, drawings, specifications or samples furnished by Purchaser, or furnished by Seller and approved and accepted by Purchaser, it being understood that such plans, drawings, specifications or samples, are incorporated by reference and made a part hereof;
(b)all Goods will be of merchantable quality, fit and sufficient for the purpose ordered and communicated to Seller, and will be free from latent or patent defects in material and workmanship;
(c)all services will be performed in a workmanlike, efficient and safe manner and will conform to standards generally accepted in the trade or industry involved;
(d)all Goods are and will be free from any security interest, lien, or encumbrance;
6.Remedies.
(a)If any of the Goods are found within the warranty period provided in the Appendix to be defective in material or workmanship or otherwise not in conformity with the requirements of this Agreement, Purchaser, in addition to any other rights which it may have under warranties or otherwise, shall have the right, at its option
(i)to revoke acceptance, reject and return such Goods at Seller’s expense, in which event conforming Goods shall be provided by Seller at its cost within ten ( ) days of such revocation and such replacement Goods shall carry a warranty equivalent to that set forth in the Appendix running from the date of Purchaser’s receipt of such replacement Goods; or
(ii)notify Seller of noncompliance, defects, or deficiencies in the Goods, which Seller shall repair and/or correct at Seller’s expense within ten ( ) days of such notice and such repairs shall carry a warranty equivalent to that set forth in the Appendix running from the date of Purchaser’s acceptance of such repaired Goods; or
(iii)upon notice to Seller, to take such actions as may be required to cure all defects and/or bring the Goods into conformity with all the requirements of this Agreement, in which event all costs and expenses thereby incurred by Purchaser shall be for Seller’s account,. Efforts by Purchaser to correct defects or deficiencies shall not preclude Purchaser from revoking acceptance and rejecting the Goods under this Section or applicable law where Purchaser’s commercially reasonable attempts to correct the defective conditions prove to be unsuccessful.
(b)In the event that Purchaser invokes the remedy set forth in Section 6(a)(ii), Purchaser shall cooperate in providing reasonable access to the Goods, data and technical assistance (if available) as required to develop and schedule repairs and related testing of modifications or repairs, if necessary, to assist Seller in its correction of the defects or deficiencies in the Goods. Seller will schedule repairs to minimize disruption, loss and inconvenience to Purchaser, or if required, Seller shall, at its expense, arrange for delivery of the Goods to Seller’s plant for repair or modification.
7.Insurance.
(a)Liability Insurance. Prior to and during any entry by Seller onto the premises of Purchaser, Seller shall purchase and maintain the following insurance coverages: (i) Commercial General Liability Insurance (“CGL”), with contractual liability covering obligations assumed in this Agreement (including any agreements entered into between the parties pursuant hereto) by Seller.
(b)Policy Requirements. All insurance required hereunder shall be effected by valid and enforceable policies issued by insurer(s) of financial responsibility and authorized to do business in all necessary states. Seller’s liability insurance policies shall name Purchaser. Prior to any entry upon Purchaser’s property pursuant to this Agreement and upon Purchaser’s request thereafter, Seller shall provide or shall cause its insurer to provide Purchaser with complete certified copies of the liability insurance policies in effect for the Term of this Agreement.
Intellectual Property. Seller warrants that: (1) that the goods or services purchased hereunder as well as the production, sale and use thereof, do not and will not infringe any third party patents, trademarks or copyrights or other intellectual property; (2) that Seller will at its own expense defend any suit that may arise In with respect thereto. In case the Goods or a part thereof are held to be infringing, or the use of the Goods or a part thereof is enjoined, Seller shall, at Seller’s expense, either procure for Purchaser the rights to continue using the Goods, replace the G
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