EXHIBIT 10.16
REPRESENTATION AGREEMENT BETWEEN NDC AUTOMATION, INC. AND
HARCON ENGINEERING, INC.
This agreement (the "Agreement"), entered into as of January 27, 1999, is
between NDC Automation, Inc. ("NDCA") doing business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Harcon Engineering Inc. ("Harcon") doing business at
15990 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Whereas: NDCA supplies certain automated guided vehicle systems
("AGVS") controls hardware, software and engineering services,
excluding any products or services of NDCA discontinued after
the date hereof, (the "Products") and other proprietary
designs.
Harcon produces line stocking devices and automated equipment
under proprietary designs.
Under this Agreement, NDCA will provide engineering, design,
supply, implementation and support of AGV Systems, unless
otherwise agreed.
Under this Agreement, Harcon will provide marketing and sales,
project management, system integration, installation and
servicing of AGV Systems, unless otherwise agreed.
A. Agreement: NDCA appoints Harcon as its authorized representative for the
Products for sales to Chrysler Corporation ("Chrysler").
Harcon accepts such appointment and agrees to act as NDCA's
representative throughout the term of this Agreement. As to
Harcon's sale of Products to any automotive customers of the
Products other than Chrysler, including, without limitation,
"Tier 1 suppliers" thereof, the parties hereto will agree on
the handling of such sales on a job by job basis. Chrysler and
other automotive customers will be collectively referred to as
"Customers" in this Agreement. In the case of business
opportunities in other industries than automotive, the
handling of such opportunities will be handled on a case to
case basis.
Both parties hereto will use their best efforts to promote
sales of Products to Chrysler at competitive prices and to
inform each other of business opportunities for mutual benefit
under this Agreement.
B. Covenants of NDCA:
Pursuant to Harcon's written orders for Products, subject to
the terms and conditions as mutually agreed between the
Parties from case to case (which Terms and Conditions shall
supplement but not amend the terms set forth in this
agreement), NDCA will supply products and any other
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equipment that is accepted and confirmed by both parties for
the sale through Harcon according to the timeline agreed to by
Harcon and NDCA.
Pursuant to Harcon's written orders for Products, subject to
the terms and conditions as mutually agreed between the
parties from case to case, NDCA will provide engineering
services for the implementation and support of Products.
NDCA will set all prices to Harcon for the Products that
Harcon elects to purchase from NDCA.
NDCA agrees to hold Harcon, its officers, employees, and
agents harmless from and against and indemnify Harcon for all
liability, loss, costs, expenses or damages caused by reason
of any defects in design and manufacture of the Products
(except as to those Products designed and manufactured by
Harcon). NDCA is to place Harcon on its liability and product
liability insurance policy as an additional insured. NDCA will
also provide Harcon with a copy of the certificate of
workmen's compensation insurance.
Upon acceptance and confirmation by NDCA, NDCA warrants to
Harcon that NDCA's products will comply with all
specifications established by Harcon's customer. Such warranty
shall last for the duration of Harcon's warranty to its
customer pertaining to NDCA's equipment.
C. Covenants of Harcon:
Harcon shall market and sell the Products as supplied by NDCA.
All other mechanical equipment that NDCA supplies will be
marketed on an application per application basis. Harcon will
use their best efforts to generate sales for NDCA.
Harcon will provide installation services as agreed with NDCA
and will have sole authority to quote and set the equipment
sales price and the installation price as to the Products to
the Customers. No representation, warranty, or other
commitment by Harcon in connection with such re-sales in
excess of the terms and conditions agreed between the Parties
from case to case will be binding on NDCA without its prior
written approval. Harcon will provide launch support for the
Products to the Customers.
Harcon agrees to fully perform all of its obligations to its
customers under contracts for the sales of Products.
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Harcon will work as a team with NDCA for all launch support.
Launch support is presence of a qualified technician during a
time period, to be specified by the customer, at the initial
production use of the device.
Harcon will provide after sales support, including warranty
service, to the Customers, and ▇▇▇▇ the Customers direct for
non-warranty services. Warranty service shall be handled in
accordance with the warranty terms and procedures agreed upon
between the Parties.
Harcon agrees to hold NDCA, its officers, employees, and
agents harmless from and against and indemnify NDCA, its
officers, employees, and agents for all liability, loss,
costs, expenses or damages caused by reason of any neglect in
installation or service of the Products covered by this
Agreement, or the making by Harcon of any representation or
warranty in excess of those permitted or authorized by NDCA
under this Agreement or under the terms and conditions agreed
between the Parties from case to case. Harcon is to place NDCA
on its liability and product liability insurance policy as an
additional insured. Harcon will also provide NDCA with a copy
of the certificate of workmen's compensation insurance.
Upon termination of this Agreement, any proprietary
information (including trade secrets) developed, owned or
licensed by Harcon prior to and/or during this Agreement shall
remain the exclusive property of Harcon. Any proprietary
information (including trade secrets) developed by NDCA prior
to and/or during thiS Agreement shall remain the exclusive
property of NDCA. NDCA retains the exclusive right and title
worldwide to any improvement, invention, copyright, patent,
trade secret or other intellectual property developed or
arising from the Products in connection with the parties
performance under this Agreement (a "Development").
Intellectual property in Harcon's equipment that interfaces
with NDCA's products shall belong exclusively to Harcon.
Intellectual property in NDCA's products that interfaces with
Harcon's equipment shall belong exclusively to NDCA. No
license is granted by NDCA to Harcon regarding any
Development, and Harcon waives and releases, and hereby
assigns to NDCA, any and all copyright, patent or other
proprietary right that Harcon may now or hereafter have,
directly or indirectly, to any such Development. Harcon will
market the Products under such product names, trademarks and
logos as may be directed by NDCA and will identify all
Products as those of NDCA. NDCA will not use Harcon's, and
Harcon will not use NDCA's, trade or service marks without
prior written consent of the other party.
In the case of technology, equipment or solutions being
jointly developed by the two parties and/or in case one party
wishes to manufacture on behalf of the other, the terms and
conditions for such events shall be agreed upon in a separate
agreement.
It is the express intention and agreement of the parties
hereto that all covenants, warranties and agreements of the
parties hereto in this
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Agreement shall survive the execution of this Agreement and
shall continue in full force and effect until the later of the
date of the termination of this Agreement or the completion of
the parties' obligations hereunder. Notwithstanding anything
to the contrary in this paragraph, the following paragraphs
shall survive expiration or termination of this Agreement:
Fourth paragraph of Section B, Sixth and Seventh paragraph of
Section C, Section F, Section K, Section L, Section N and
Section O. In addition, all obligations of each party that
have accrued prior to termination or that are of a continuing
nature will survive such termination.
Harcon shall notify NDCA promptly in writing of any adverse or
unexpected results or any actual or potential damage, claim or
lawsuit relevant to a Product and, if and to the extent
requested by NDCA in writing, Harcon shall suspend
distribution of any Product. Harcon will also promptly notify
NDCA of any infringement of any trademarks, copyrights,
patents or other proprietary rights relating to the Products.
Harcon's failure to give notice to NDCA will not affect NDCA's
obligations under this Agreement, unless NDCA can demonstrate
actual prejudice rising from the failure to give notice.
D. Term of this Contract:.
This Agreement is for two (2) years commencing on the date
first above written and will automatically be renewed year to
year unless either party gives at least 90 days prior written
notice of termination. (See Section E).
E. Termination:
Either party may terminate this Agreement after the two years'
initial term for any reason, with at least 90 days prior
written notice at any time after such initial term. In
addition, this Agreement may be terminated by either party for
cause immediately by written notice upon the occurrence of any
of the following events: (i) if the other party ceases to do
business, or otherwise terminates its business operations;
(ii) if the other party breaches any material provision of
this Agreement and fails to fully cure such breach within 30
days of its receipt of written notice describing the breach;
(iii) if the other party becomes insolvent or seeks protection
under any bankruptcy, receivership, trust deed, creditors
arrangement, composition or comparable proceeding, or if any
such proceeding is instituted against the other; (iv) in case
of NDCA's termination, misuse of any trademark or logo of
NDCA; (v) in case of change of control or ownership of the
other party, except in the event ▇▇▇▇ ▇▇▇▇▇ and/or ▇▇▇▇ ▇▇▇▇▇
remain in control of Harcon; or (vi) in case a competitor of
one party acquires an equity position exceeding ten (10)
percent of the other party. Termination is not the sole remedy
under this Agreement and,
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whether or not termination is effected, all other legal,
equitable and contractual remedies will remain available.
F. Dispute:
Any dispute or controversy which may arise between the parties
hereto out of or in relation to or in connection with this
Agreement will be submitted to arbitration in the defending
party's state, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, before a
maximum of three (3) arbitrators appointed pursuant to such
rules, and that determination of such arbitrators shall be
final, binding and conclusive on the parties. Judgement upon
the award of the arbitration may be entered by any court of
competent jurisdiction.
G. Notice:
Notice under this Agreement shall be sent in writing by U.S.
Mail certified or registered, with return receipt requested,
to:
NDC Automation, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Or to: Harcon Engineering, Inc.
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H. Force Majeure:
NDCA will not be held responsible or liable for delays in
delivery of Products where forces outside their control affect
the situation, such as fire, war, and other acts of god. In
the event of a Product shortage, NDCA shall have the right to
allocate its available Products among its distributors and
other customers (including itself) in such manner as NDCA
considers advisable, as long as NDCA meets its agreed upon
timeline.
I. Entire Agreement:
This Agreement, together with the Exhibits hereto, constitutes
the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior oral or
written agreements with respect to matters provided for
herein. This Agreement shall not be amended, altered or
modified except by an instrument in writing duly executed by
the parties hereto.
J. Non Assignable:
This Agreement, or any part hereof, shall not be assignable,
whether by operation of law otherwise, by either party hereto
without the prior written
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consent of the other party. Any such assignment without
consent will be null, void and of no force or effect.
K. Exclusive Business Entities:
Nothing in this Agreement is intended to be construed so as to
constitute Harcon and NDCA as partners or joint venturers, or
either party hereto as the employee, agent, franchisee or
legal representative of the other party. The parties hereto
expressly understand and agree that Harcon is an independent
contractor in the performance of each and every part of this
Agreement, is solely responsible for all of its employees and
agents and its labor costs and expenses arising in connection
therewith. NDCA is in no manner associated with or otherwise
connected with the actual performance of this Agreement on the
part of Harcon, nor with Harcon's employment of other persons
or incurring of other expenses.
L. Representation or Warranties:
Harcon agrees not to make any representations or warranties
relating to NDCA's products other that those expressly set
forth in this Agreement without NDCA's prior written approval.
NDCA warrants only to Harcon that the Products shipped to
Harcon by NDCA will conform to the warranties and
representations set forth in the terms and conditions agreed
between the Parties from case to case. NDCA MAKES NO OTHER
WARRANTIES WITH RESPECT TO THE PRODUCTS AND DISCLAIMS ALL
OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
M. Conflicting Terms:
Harcon's purchase orders or mutually agreed change orders
shall be subject to all provisions of this Agreement, whether
or not the purchase order or change order so states. Except as
otherwise agreed by the parties in writing after the date of
this Agreement, all purchases of Products from NDCA by Harcon
are subject only to the terms and conditions agreed between
the Parties from case to case, notwithstanding any conflicting
term herein or in any purchase order of Harcon.
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N. Limited Liability; Waiver:
Neither party will be liable for and each party hereby waives
and releases any claims against the other party for any
indirect, special, incidental, punitive, contingent, or
consequential damages, including lost sales, revenues or
profit, loss or return of or damage to product, loss of
facilities, inventory, work-in-process, or time and materials,
or loss of prospective economic advantage, arising from any
performance or failure to perform under this Agreement.
Notwithstanding the above, neither party waives the right to
claim reimbursement by the other party for damage claims of
the customer, if customer's claims arise out of the failure to
perform by the other party.
O. Covenant not to compete
During the term of this Agreement, Harcon agrees not to
manufacture, market, distribute or sell any other products
identical or similar to the Products.
P. General:
This Agreement will not create any right in or obligation to
any third party. This Agreement will be governed by and
construed in accordance with the internal laws of the State of
North Carolina, without regard to the principles of conflicts
of laws thereof. If any provision of this Agreement is held by
a court of competent jurisdiction to be illegal, invalid or
unenforceable, that provision shall be limited or eliminated
to the maximum extent possible and this Agreement shall
otherwise remain in full force and effect and enforceable.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed on its behalf by a duly authorized officer as of the day and year first
above written.
NDCA: Harcon:
NDC AUTOMATION, INC. HARCON ENGINEERING, INC.
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇▇ ▇▇▇▇▇,▇▇.
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President President