ExclusiveSupplyandSoleSourceAgreement原材料供给协定doc.docx

1、ExclusiveSupplyandSoleSourceAgreement原材料供给协定docExclusive Supply and Sole Source Agreement原材料供给合同 - 1.1 Affiliate shall mean (i) a corporation performing activities relating to AAAs business in which AAA owns and controls, directly or indirectly, at least fifty percent (50%) of the outstanding shares

2、 entitled to vote for the board of directors; (ii) a franchisee or licensee of AAA; or (iii) a joint venture with a third party (x) which joint venture performs activities relating to AAAs business, and (y) in which AAA owns or controls at least twenty percent (20%) equity interest.1.2 Carousel Prod

3、uct shall mean BBBs carousel product for automated materials handling, as more fully described in Exhibit A, including all equipment and related Carousel Software. The parties agree that, from time to time and subject to mutual agreement, the parties may amend or add different configurations of caro

4、usel products to this list. When used without capitalization, the term carousel products shall refer to carousel products generally and not just those manufactured by BBB.1.3 Carousel Software shall mean that certain software, in source code and object code format, which (1) controls the functionali

5、ty of the Carousel Product or (2) interfaces with other materials handling systems.1.4 Intellectual Property shall mean all rights of a person or entity in, to, or arising out of: (i) any U.S. or foreign patent (or any similar right) or any application therefor and any and all reissues, divisions, c

6、ontinuations, renewals, extensions and continuations-in part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights and registrations and applications

7、therefor in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; and (iv) any other proprietary rights anywhere in the world.1.5 Shareholder Agreement shall mean that certain Amended and Restated Shareholder Agreement of even date herewith.1.6 Specificati

8、ons means the specifications for the Carousel Product, as set forth in Exhibit A.1.7 Purchase Order means a written order from AAA (or any of its Affiliates) delivered to BBB requesting BBB to manufacture and sell a Carousel Product and stating the proposed unit numbers and specifications of the Car

9、ousel Product, the location at which the Carousel Product will be installed (the Worksite ) and any special conditions thereof that might affect the fabrication, installation or testing of the Carousel Product, shipping instructions, any request for BBB to supply labor for installation, a requested

10、testing schedule and procedure, and the requested delivery date. The Purchase Order may also include a reference to a Technical Proposal sent by BBB to AAA, including such information as price, scope of work, system functionality, delivery schedule, and acceptance test criteria.2.0 MANUFACTURING AND

11、 SALES.2.1 Manufacturing and Sale.(a) Manufacturing and Sale. Upon AAAs (as used in this Section 2.0 only, AAA shall also refer to AAAs designated Affiliate(s) Purchase Orders therefor and pursuant to the terms and conditions of this Agreement, BBB agrees to manufacture and sell all Carousel Product

12、s ordered by AAA to AAA or its designated Affiliates, and, subject to Section 2.1(c), AAA agrees to purchase such Carousel Products from BBB.(b) BBB Exclusivity. Provided that AAA fulfills its obligations pursuant to Section 4 or unless AAA provides prior written consent, BBB shall not sell any Caro

13、usel Products (whether sold by BBB or sold by a licensee, distributor, integrator, broker or any other third party authorized by BBB) to any other entity in the business of soliciting and transacting direct consumer sales via the Internet and delivering (whether using its own transportation or via o

14、utsourcing to a third party) grocery, drugstore, and general merchandise to customers.(c) AAA Exclusivity and Sole Source. For so long as BBB manufactures and sells to AAA its required supply of carousel products, AAA agrees to purchase all of its requirements for carousel products from BBB. If BBB

15、fails to provide AAA with all its required supply of Carousel Products ordered pursuant to this Agreement on any particular Purchase Order for a given site on the delivery dates reasonably required by AAA, such failure shall not be considered a breach of this Agreement but will entitle to AAA to pur

16、chase enough equivalent products from a third party to fulfill such particular Purchase Order. The foregoing notwithstanding, subject to AAAs fulfilling its obligations set forth in Section 4 of this Agreement, BBBs obligations pursuant to Section 2.1(b) shall remain in full force and effect.2.2 Ord

17、ers and Forecasts. .(a) All purchases and sales between AAA (and any of its Affiliates) and BBB, whether consummated directly or indirectly through a third party agent of BBB, shall be initiated by AAAs issuance of written Purchase Orders sent via airmail or by telephone or facsimile and then confir

18、med by written Purchase Orders. The acceptance by BBB of a Purchase Order shall be indicated by written acknowledgment thereof by BBB. In the event of a conflict between the terms and conditions of any Purchase Order and the terms and conditions of this Agreement, the terms and conditions of this Ag

19、reement shall control as to such conflict, unless the parties agree in writing that the terms and conditions of a particular Purchase Order shall supersede a particular term or condition of this Agreement.(b) AAA shall have the right to cancel Purchase Order(s) or any portions thereof for any reason

20、 by notifying BBB in writing no later than thirty (30) days after AAA submits its Purchase Order(s) pursuant to Section 2.2(a). Cancellation shall be effective upon BBBs receipt of the written cancellation notice from AAA. BBB shall cease all work on such canceled purchase order(s) in accordance wit

21、h the cancellation notice. In the event that BBB incurs any costs in connection with preparing for or commencing work on a Purchase Order that is canceled pursuant to this provision, including without limitation costs for materials, drawings or labor, AAA shall reimburse BBB for such reasonable cost

22、s within thirty (30) days of receiving an invoice therefor2.3 Delivery and Shipping. BBB shall ship the Carousel Products to AAAs Worksite suitably packaged for shipment in BBBs standard containers. All shipping costs shall be prepaid by BBB but invoiced to AAA.2.4 Insurance and Risk of Loss. Immedi

23、ately following delivery of the Carousel Product to the Worksite, AAA shall be responsible for and shall bear any and all risk of loss of or damage to the Carousel Product. AAA shall, at its expense, take out and maintain insurance in an amount at least equal to the Purchase Price covering all risks

24、 of loss or damage to the Carousel Product. Such insurance shall name BBB as an insured party and shall provide for an insurers waiver of subrogation in favor of all insured parties. Prior to delivery of the Carousel Product to the Worksite, BBB shall be responsible for and shall bear any and all ri

25、sk of loss of or damage to the Carousel Product. BBB, at its expense, shall maintain insurance in an amount equal to or greater than the value of all Carousel Products that BBB is manufacturing for or shipping to AAA, such insurance to cover all risks of loss or damage to the Carousel Products.2.5 S

26、ite Conditions and Provisions by Purchaser. AAA, at its own expense, shall provide at the Worksite reasonable means of access to a minimum of one dock door, with the availability of a dock leveler, a completely enclosed building to protect BBBs equipment from the elements, completion of water-tight

27、roof and such electric current, water, heat, ventilation, telephone service, a temporary office space, light and other utilities and facilities required for the installation of the Carousel Product. In the event that any elevator or crane service owned by AAA shall be available at the Worksite, BBB

28、may, without charge, use any such service for handling of materials during installation. AAA shall allow BBB access to the Worksite for inspection of compliance to these requirements, prior to commencement of the installation. Additional provisions and conditions related to Worksite conditions and i

29、nstallation may be attached to the Purchase Order and acceptance thereof.2.6 Permits. Prior to the installation of the Carousel Product, AAA shall procure and pay for all building, erection and other licenses, permits, authorizations and inspections required in connection with the Carousel Product.

30、BBB shall not be responsible for any failure of the Carousel Product or its installation to comply with building, electrical or other codes or regulations of local, state or federal agencies or authorities.2.7 Changes, Delays. At any time prior to delivery, AAA may request in writing any substitutio

31、ns, deviations, additions, or deletions (hereinafter referred to as Changes ) in the Carousel Product and in the specifications or drawings incorporated in this Agreement or the Purchase Order. All of the terms and conditions of this Agreement shall apply to such Changes. If BBBs performance is dela

32、yed by any such Changes or by other causes within control of AAA, AAA agrees to reimburse BBB for reasonable and documented expenses incurred as a result of such delay, including without limitation, the costs of storing, maintaining, repairing, and refurbishing Carousel Product, demurrage, labor and material escalation and pull out charges. Upon request by AAA, BBB shall provide to AAA an itemized list of all such expenses with supporting documentation. In such event, AAA also agrees to excuse the delay and accept BBBs performance at any appropriately deferred completion date.