DANFOSS- EMCO
DELIVERY CONTRACT
This Contract has been entered into by
Engineering Measurements Company, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇▇,
a corporation incorporated under the laws of the state of Colorado, USA
(hereinafter referred to as EMCO)
and
▇▇▇▇▇▇▇ ▇/▇, ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (hereinafter referred to as DANFOSS).
Preface
EMCO and DANFOSS are companies which in the instrumentation field are
represented on various markets with various products.
With a view to resale of products which are manufactured at DANFOSS and its
subsidiaries, EMCO wants to buy these in order to extend its product programme.
1 Definitions
1.1 By PRODUCTS is meant the flowmeters and other instruments described in
Encl. 1 incl. accessories and spare parts.
1.2 By COMMENCEMENT is meant 1st November, 1998.
1.3 In recognition of the existence of a distinction in the US between two
separate market segments (the industrial and the municipal market), by
MARKET is meant the industrial market for the PRODUCTS in the USA.
The industrial waste water market is non-exclusive.
2 Relations between the parties
2.1 According to this Contract EMCO has a exclusive right to place orders
for PRODUCTS (Magflo to Encl. 1 and non-exclusive for Massflo) to
DANFOSS for the MARKET, and DANFOSS is obligated to fulfil these
orders according to the conditions stipulated in this Contract.
2.2 This Contract is not meant as a distributor/agent relationship between
the parties.
2.3 EMCO has a right to market the PRODUCTS in its own name and on its own
ccount to the MARKET, outside which active marketing is not allowed.
Active marketing is to be understood as direct promotion and dedicated
advertising for the PRODUCTS or initiating direct contacts with
representatives of companies with the aim of selling the PRODUCTS.
2.4 DANFOSS is to supply the PRODUCTS with a valid trade ▇▇▇▇. Trade marks
are the subject of a separate agreement between DANFOSS and EMCO.
Labels are described in Encl. 2. If EMCO wants a special design which
is not described in Encl. 2, this should be agreed upon in each
individual case.
2.5 Confidential business information may be exchanged between DANFOSS and
EMCO. Both parties agree not to give such information to third parties
such as competitors, customers, or other third parties, also after
termination of this Contract.
This Contract shall not be construed as granting or conferring,
whether expressly or implied, any rights, licences or relationships by
the furnishing of confidential information pursuant to this Contract.
2.6 Both parties agree to work together in a mutually agreed upon manner
to develop and implement an appropriate marketing strategy for the
PRODUCTS. This strategy should provide marketing, sales and financial
data as needed to support DANFOSS' regular budget and planning cycles.
3 Written Material
3.1 At the latest at the COMMENCEMENT DANFOSS is obligated to place the
following material at EMCO's disposal without charge:
a) 1 set of standard documentation material used by DANFOSS when
marketing the PRODUCTS.
b) 1 set of directions (users' manuals/instructions) used by DANFOSS
when marketing the PRODUCTS.
c) DANFOSS shall deliver to EMCO a diskette with standard DANFOSS
documentation for manuals
3.2 On the basis of the material mentioned under point 3.1, EMCO has a
right to print their own information material in connection with the
marketing of the PRODUCTS under EMCO's label, subject to prior written
approval from DANFOSS unless such prior approval would involve
excessive costs and delay. DANFOSS is authorized in each instance to
grant such approval, subject to review by the trade ▇▇▇▇ department of
DANFOSS.
3.3 If EMCO wants information about the PRODUCTS in addition to that
mentioned in the documentation in paragraphs 3.1 a + 3.1 b, DANFOSS
will place such information at EMCO's disposal, provided DANFOSS does
not consider the information confidential, and provided both parties
in the individual case agree upon the price and time of delivery for
the information.
3.4 All documents, copies of documents and other information in tangible
form shall be returned upon written request from DANFOSS or upon
termination of this Contract.
4. Education
4.1 DANFOSS agrees to educate EMCO's service instructors, including
knowledge of application areas, at such level that these are able to
educate EMCO's own service organisation. The extent of and the price
for this education is described in Enclosure 5.
4.2 DANFOSS agrees to offer sales training. The extent of the education
and the payment for this are described in Enclosure 5.
5. Quality demands
5.1 If EMCO on an order for the PRODUCTS should want a material and/or a
type certificate, EMCO is to specify the contents of the desired
certificate. DANFOSS is to comply with EMCO's wishes in so far as it
is considered technically and commercially reasonable. DANFOSS will
inform EMCO of the net price and time of delivery for the certificate.
6 Alterations of the PRODUCTS
6.1 DANFOSS has a right to alter the design of the PRODUCTS. However, if
these have an influence on specifications or functions EMCO is to be
informed of the alterations at the same period of time as DANFOSS'
subsidiaries/agents are being informed.
For a period of 5 years from delivery, DANFOSS shall retain the
capacity to provide spare parts or compatible solution for delivered
PRODUCTS.
6.2 EMCO is not allowed to modify the PRODUCTS, unless authorized by
DANFOSS in writing.
7 Prices and Terms of Payment
7.1 DANFOSS will supply EMCO with the PRODUCTS according to the prices and
discounts described in Encl. 4. Both parties agree to discuss the
prices at any time required by one of the parties.
Once a year DANFOSS will carry through price alterations (January 1),
if necessary. Such alterations will also apply to EMCO. EMCO will be
informed in writing of these alterations not later than September 15.
In the case of documented, essential changes in the price of raw
material, currencies or other direct costs, DANFOSS reserves the right
to alter prices without previous notice and at dates other than those
mentioned above.
Already placed an confirmed orders will not be affected by such price
alteration.
In cases where EMCO negotiates supplies for very great projects, OEMs
or similar customers and where the limits of this Contract do not make
EMCO sufficiently competitive, DANFOSS will be willing to negotiate a
solution which will be for the benefit of both parties.
7.2 The PRODUCTS are to be delivered ex works (Incoterms 1990) from
DANFOSS to EMCO.
However, according to EMCO's desire, DANFOSS in special cases will
provide that the PRODUCTS are delivered directly from DANFOSS to an
address stated by EMCO, however, this is still for EMCO's own account
and risk.
7.3 The prices are to be understood as delivery in DANFOSS standard
packing ex works.
7.4 Terms and conditions of payment for the PRODUCTS to take place
according to encl. 4.
8 Title to PRODUCTS
All PRODUCTS become the property of EMCO as soon as they are shipped.
9 Strategy, Forecast and Time of Delivery
9.1 EMCO agrees to provide input for strategies and Long Term Plans
concerning business development.
9.2 EMCO agrees to work with DANFOSS to prepare and submit market
forecasts at mutually agreed-upon intervals as needed to support the
necessary marketing efforts.
9.3 DANFOSS is to deliver the PRODUCTS as soon as possible after receipt
of orders from EMCO; however, times of delivery are to be specified in
connection with each particular order. If EMCO cancels a confirmed
order, a re-stocking fee based on the incurred cost is to be
negotiated.
10 Complaints and Service
10.1 If EMCO customers complain about defects in the PRODUCTS, DANFOSS
agrees that EMCO handles all contacts to the customers of EMCO with
regard to but not limited to warranty, complaints and service
requirements.
In the event of defects, DANFOSS shall inform EMCO of the cause of the
defect. DANFOSS shall furthermore take the necessary steps to avoid a
recurrence of the defect.
10.2 DANFOSS will assist EMCO with repair and service of the PRODUCTS. The
exact extent of this as well as costs of such assistance appear from
Encl. 5.
10.3 In the event of defective PRODUCTS, EMCO shall notify DANFOSS within
18 months from the manufacturing date stamped on the PRODUCTS,
however, a maximum of 17 months after delivery of the PRODUCTS.
DANFOSS may then either repair or replace the defective PRODUCTS.
Costs associated with disassembly and assembly will be uncompensated;
however, DANFOSS will pay transport costs for the PRODUCTS and spare
parts, if any, from DANFOSS to EMCO. EMCO is to cover transport costs,
if any, from EMCO (and its customers) to DANFOSS.
Should EMCO request a special warranty beyond the usual period of 18
months, DANFOSS may at DANFOSS' discretion assume such obligation, in
writing.
ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY ON FITNESS FOR A PARTICULAR PURPOSE ARE
HEREBY EXPRESSLY EXCLUDED.
10.4 DANFOSS is not liable for any kind of indirect or consequential damage
which might occur as a result of defective PRODUCTS.
10.5 Should EMCO or DANFOSS have reason to believe that a third party
claims or will claim that the PRODUCTS manufactured by
DANFOSS violate patent or trade ▇▇▇▇ rights held by a third party, the
party having this information shall immediately inform the other party
in writing and keep that party informed of the status of the matter.
Should in the evaluation of the legal advisors of one of the parties
there exist a substantial or colourable validity to the third party's
claim, each party is authorized to suspend the purchase and sale of
the PRODUCTS under this Contract, pending clarification of the
dispute.
Should EMCO be sued in this connection, DANFOSS agrees to pay
reasonable costs of litigation (including but not restricted to
attorneys fees, expert witness fees, reimbursement for EMCO management
time used in defending the lawsuit, and all advance sums required to
pay the costs of any appeal bonds that might be necessary to further
contest the litigation) and any unappealable awards of compensation
and damages provided by a legal tribunal.
DANFOSS is also granted the right to participate in the suit or
arbitration, as a party.
11 Product Liability
11.1 This Contract does not affect the limitations on DANFOSS' usual
product liability in cases of damages to persons or personal property
which have occurred because of defective PRODUCTS. However, DANFOSS is
not liable for indirect or consequential damage.
12 Duration of the Contract
12.1 This Contract is valid indefinitely as of its COMMENCEMENT. If not
previously terminated, the parties agree that 30 months after the
inception of this Contract it shall be renegotiated; the negotiation
shall be completed within 36 months of its inception. The Contract can
at any time be terminated by either party with 12 months' written
notice. DANFOSS will continue to supply up to 24 months after written
termination at comparable prices.
12.2 Further, this Contract can be terminated with 30 days' written notice
in the event of:
1) Disclosure to a third party of confidential information.
2) Violation of trade marks.
3) Failure to make payment in a reasonable time in accordance
with Encl. 4.
4) Active marketing by EMCO of the PRODUCTS outside USA.
5) Marketing or sales practices in violation of US or Danish
legislation
6) EMCO develops, manufactures, and/or markets and sells other
electro-magnetic, ultrasonic or Coriolis-mass-flowmeters, oxygen
transmitters or level transmitters based on the ultrasonic
principle.
Excepted from this restriction is EMCO's sale of insertion flowmeters.
When replacing EMCO's insertion programme, EMCO shall be allowed to
develop a replacing programme based on ultrasonic.
This product programme shall not compete in those markets where
DANFOSS is marketing its UL programme actively to DANFOSS' core
business areas. For UL-clamp-on technology DANFOSS shall be offered
for consideration exclusivity in marketing in accordance with this
Agreement on In-line Vortex.
If both parties agree that corrective action has been taken within 30
days of written notice, the termination notice is nullified.
12.3 PRODUCTS for which there have already been placed orders before or at
the date of notice of termination are to be delivered from DANFOSS to
EMCO according to this Contract.
12.4 For a period of 5 years after termination of this Contract, DANFOSS Is
to supply EMCO with all spare parts or compatible product solutions
under normal conditions and comparable prices. Apart from this,
DANFOSS' obligation as regards service cease when terminating this
Contract.
12.5 In the event of insolvency, suspension of payments, or bankruptcy of
one of the Contract parties, the other party at any time has right to
terminate the Contract without notice.
The same applies if a competitor to one of the Contract parties
obtains a considerable influence in the other party, including, but
not limited to, gaining a controlling interest in the company,
purchase of shares, and/or appointment as manager or board member in
the company.
12.6 Neither party shall be held liable for failure to meet its obligations
under this Contract in the case of force majeure, including, but not
limited to, strikes, blockade, armed conflicts, government
restrictions and natural calamities.
Should either party be unable to fulfil its obligations under this
Contract because of force majeure for more than 3 months, the other
party may terminate the Contract with 30 days notice.
12.7 Confidential business information is not to be given to any third
party in a period of 3 years from termination.
13 Law, Venue, Invalidity
13.1 This Contract shall be governed by Danish law. Any controversy
which may occur in relation to this Contract shall finally be settled
in accordance with the rules of Conciliation and Arbitration of the
International Chamber of Commerce (ICC), Paris. Meetings are held in
Copenhagen. Process language is English.
13.2 In the event that single clauses should be rendered wholly or partly
invalid, the validity of the remaining clauses or the remaining parts
of such clauses are not rendered invalid.
13.3 The parties hereby agree that in signing this Delivery Contract, the
previous Delivery Contract of 1 November 1995 concerning delivery of
PRODUCTS from DANFOSS to EMCO is cancelled effective as of the
COMMENCEMENT of this Delivery Contract.
Enclosure 1: PRODUCTS
Enclosure 2: Labels
Enclosure 3: Approvals
Enclosure 4: Prices, Discounts and Conditions of Payment
Enclosure 5: Repair and Service
Place and date Place and date
for Danfoss for EMCO
6.OCT98
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/s/▇▇▇▇▇ ▇▇▇▇▇▇ /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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/s/Hans ▇▇▇ ▇▇▇▇▇▇▇▇ /s/▇▇▇ ▇▇▇▇▇▇▇▇▇
Hans ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Encl. 1 to Delivery Contract DANFOSS - EMCO
PRODUCTS:
From DANFOSS the Delivery Contract covers the following:
1a) i) Label (as defined in Encl. 2) PRODUCTS:
DANFOSS PRODUCTS MAGFLO
Type MAG 1100
Type MAG 2100
Type MAG 3100
Type MAG 2500
Type MAG 3000
DANFOSS PRODUCTS MASSFLO (non-exclusive)
Type MASS 2100
Type MASS 3000
ii) DANFOSS PRODUCTS with unobstructed, conspicuous DANFOSS
Label and EMCO sticker: (non-exclusive)
DANFOSS PRODUCTS MASSFLO
Type MASS 1100
1b) The Delivery Contract also includes accessories and spare parts for the
PRODUCTS.
Encl. 2 to Delivery Contract DANFOSS - EMCO
In connection with the marketing of DANFOSS manufactured flowmeters and in
recognition of EMCO's interest in producing its own independent image, the
following label arrangements shall be valid:
A Label PRODUCTS - MAG 2500
MAG 3000
MAG 1100
MAG 2100
MAG 3100
MASS 3000
MASS 2100
or new generation replacing the existing model.
These PRODUCTS will be marketed s label PRODUCTS. DANFOSS will send a
standard PRODUCT to EMCO. EMCO will place the new label fulfilling the
conditions stated in this Contract on top of the existing DANFOSS label.
The label shall contain a statement (such as "Magflo( is a trade-▇▇▇▇ of
Danfoss A/S, DK") to be agreed upon stating DANFOSS' ownership of the
trade-▇▇▇▇. DANFOSS and EMCO agree to work together to develop a mutually
agreed-upon procedure to fulfil the requirements of this point. This
procedure may be modified, depending on quantities, by written agreement to
provide that the EMCO label is attached in Nordborg. Literature and packing
shall also bear the EMCO name, where the DANFOSS name is removed.
B Remaining PRODUCTS (Encl. 1 a with the exception of PRODUCTS named in point
A) are to be marketed by EMCO under DANFOSS label. These PRODUCTS will be
sent to EMCO as standard PRODUCTS. EMCO will attach a sticker to these
PRODUCTS, accompanying literature and packaging. The content, appearance
and procedure with regard to the EMCO sticker is to be approved by DANFOSS
in writing and state DANFOSS' ownership of trade marks.
C Accessories and spare parts to the PRODUCTS are not be labelled, used in
connection with the stickers mentioned in B above or altered by EMCO.
D All costs in connection with labelling, including price for special
packaging and manuals are to be paid by EMCO.
Encl. 3 to Delivery Contract DANFOSS - EMCO
Approvals
1. At present
MAGFLO * 3A approval on MAG 2100 and MAG 1100 Food
* CENELEC hazardous area approval on MAG 1100 / 3100
with MAG 3000 electronic.
* MAG 3000 CT:
Custody transfer approval for: cold water by PTB - Germany;
OIML 75; OIML 117.
MASSFLO * CENELEC hazardous area approval on MASS 1100 / 2100
with MASS 1000 and MASS 3000 electronic
2. Wishes in order of priority:
1. NIST traceable approval
2. MASSFLO* 3A approval on MASS 2100
3. MAGFLO * FM Class 1 Div 2 hazardous area approval on
MAG 1100 / 3100 with MAG 3000 electronic
as remote and compact.
4. MASSFLO * FM Class 1 Div 1 hazardous area approval on
MASS 1100 / 2100 with MASS 3000 electronic as
remote and compact
5. MAGFLO * FM Class I Div 1 hazardous area approval on
MAG 1100 / 3100 with MAG 3000 electronic
as remote and compact
6. All PRODUCTS: General UL approval
Encl. 4 to Delivery Contract DANFOSS - EMCO
Prices, Discounts, and Conditions:
PRODUCTS: EMCO is granted the enclosed discount on DANFOSS USD export pricelist
LP.96.H1.02. New price list will be forwarded on 1 OCT every year and
effective from 1 January.
If the parties require an extra discount, this will be agreed upon
from project to project.
Terms of payment:
Current month + 60 days
If payment to DANFOSS is not duly made, a 1.5% interest will be
charged for each full month or partial month. EMCO is in this regard
not authorized to make set-offs or withhold payments, unless this is
in each case accepted in writing by DANFOSS.
Currency:
Payment is to take place in USD.
Encl. 5 to Delivery Contract DANFOSS - EMCO
Assistance in Connection with Service/ Repair
As regards service and repair, the parties have agreed as follows:
- EMCO is not allowed to carry out repairs on PRODUCTS which have been
manufactured by DANFOSS. PRODUCTS are to be sent to DANFOSS who will
perform the repair, or PRODUCTS (not under warranty, i.e. older than 18
months) can follow the "Exchange to New" programme described in detail in
the document LN 2H 1.01 "Exchange to new, repairs, complaints and check
procedure for PL12 products". To optimize handling and shipping at EMCO,
the PRODUCTS may be sent in batches by EMCO.
All return of PRODUCTS to DANFOSS has to follow the guidelines in LN
25H1.01
- The education shall enable service instructors to perform an on-site GO/NO-
GO test in order to determine whether a problem is due to the PRODUCT.
- In so far as it is reasonable, DANFOSS will assist EMCO by telephone and/
or by means of written material on the assumption that the required
instructions are not stated in DANFOSS' data sheets, manuals, or service
instructions, or mentioned in material provided.
- EMCO is responsible for establishing a reliable, efficient service
organisation, for all DANFOSS PRODUCTS sold by EMCO (EMCO-labelled and
DANFOSS-labelled PRODUCTS)
- EMCO has agreed to carry the costs in connection with:
Service and field service on all PRODUCTS sold by EMCO (EMCO-labelled and
DANFOSS-labelled PRODUCTS).
EMCO - DANFOSS
DELIVERY CONTRACT
This contract has been entered into by
Engineering Measurements Company, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇▇,
a corporation incorporated under the laws of the state of Colorado, USA
(hereinafter referred to as EMCO)
and
▇▇▇▇▇▇▇ ▇/▇, ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (hereinafter referred to as DANFOSS).
Preface
EMCO and DANFOSS are companies which in the instrumentation field are
represented on various markets with various products.
With a view to resale of products which are manufactured at EMCO and its
subsidiaries, DANFOSS wants to buy these in order to extend its product
programme.
1 Definitions
1.1 By PRODUCTS is meant the flowmeters described in Enclosure 1
incl. accessories and spare parts.
1.2 By COMMENCEMENT is meant the 1st November, 1998.
1.3 By TERRITORY is meant worldwide, with the exception of USA and
Canada.
2 Relations between the parties
2.1 DANFOSS has a non-exclusive right to place orders for PRODUCTS
generally in the TERRITORY. Moreover, DANFOSS has an exclusive right
to place orders for the PRODUCTS in the areas listed in Enclosure 2.
EMCO is obligated to fulfil these orders according to the conditions
stipulated in this Contract.
2.2 This Contract is not meant as a distributor/agent relationship
between the parties.
DANFOSS is allowed to use the EMCO trade name when selling
accessories, spare parts and stickered parts. Otherwise DANFOSS is
prohibited from using the name EMCO. DANFOSS is, however, entitled
to continue to market its electronic monitoring oxygen concentration
(EMCO) product as previously.
2.3 Within the TERRITORY, DANFOSS has a non-exclusive right as described
in Clause 2.1 to actively market the PRODUCTS in its own name and on
its own account.
Active marketing is to be understood as direct promotion and
dedicated advertising for the PRODUCT or initiating direct contracts
with representatives of companies with the aim of selling EMCO
PRODUCTS.
If Danfoss wants a special design which is not described in Encl. 3,
this should be agreed upon in each individual case.
2.4 DANFOSS may not use the EMCO name or EMCO trade names without EMCO's
permission. EMCO is to supply the PRODUCTS with the standard DANFOSS
colours and standard type DANFOSS labels chosen by DANFOSS according
to DANFOSS' instructions. Colours and type labels are to be agreed
upon as described in Enclosure 3. If Danfoss wants a special design
which is not described in Encl. 3, this should be agreed upon in
each individual case.
2.5 Confidential business information may be exchanged between DANFOSS
and EMCO. Both parties agree not to give such information to third
parties such as competitors, customers, or other third parties, also
after termination of this Contract.
2.6 Both parties agree to work together in a mutually acceptable manner
to develop and implement an appropriate marketing strategy for the
PRODUCTS. This strategy should provide marketing, sales and
financial data as needed to support EMCO's regular budget and
planning cycles.
2.7 DANFOSS will inform the Board of Directors and Officers of EMCO in
writing when (and if) DANFOSS, its subsidiaries or, to the best of
DANFOSS' knowledge, agents acquire 5% of the EMCO's outstanding
common stock. In addition, EMCO's prior written consent is required
in order for DANFOSS, its subsidiaries or agents to purchase any
amount of stock which causes DANFOSS' total beneficial holdings in
EMCO stock to exceed 10% of the amount of EMCO outstanding common
stock.
3 Written Material and Software
3.1 At the COMMENCEMENT EMCO is obligated to place the following
material at DANFOSS' disposal without charge:
a) 1 set of standard documentation material used by EMCO when
marketing the PRODUCTS.
b) 1 set of directions (users' manuals/instructions) used by EMCO
when marketing the PRODUCTS.
c) 1 complete set of service documentation.
d) 1 set of sizing software for In-line Vortex and application
programmes with DANFOSS logo and name as well as updating
these items. Payments for point 3.1 d), if any, will be
negotiated.
3.2 On the basis of the material mentioned under point 3.1, DANFOSS has
a right to print its own information material in connection with the
marketing of the PRODUCTS under DANFOSS label, subject to prior
written approval from EMCO, unless such prior approval would involve
excessive costs and delay. EMCO shall assist DANFOSS in preparation
of such material. Such material shall protect the EMCO copyright.
The intent of this Clause is to ensure the absence of mistakes in
literature.
3.3 If DANFOSS wants information about the PRODUCTS in addition to that
mentioned in the documentation in paragraphs ▇.▇▇ + b, EMCO will
place such information at DANFOSS' disposal, provided EMCO does not
consider the information confidential, and provided both parties in
the individual case agree upon the price and time of delivery for
the information.
3.4 All documents, copies of documents and other information in tangible
form shall be returned on request from EMCO or upon termination of
the Contract.
4 Education
4.1 EMCO agrees to educate DANFOSS' service instructors, including
knowledge of application areas, at such level that these are able to
educate DANFOSS' own service organisation. The extent of and the
price for this education is described in Enclosure 4.
4.2 EMCO agrees to offer sales training. The extent of the education and
the payment for this are described in Enclosure 4.
5 Quality demands
5.1 If DANFOSS on an order for the PRODUCTS should want a material
and/or a type certificate, DANFOSS is to specify the contents of the
desired certificate. EMCO is to comply with DANFOSS' wishes in so
far as it is considered technically and commercially reasonable.
EMCO will inform DANFOSS of the net price and time of delivery for
the certificate.
6 Approvals
6.1 All Products (Enc. 1) sent to Danfoss have to be CE approved.
6.2 EMCO has received the approvals from recognized institutions which
appears from Enclosure 5. To the extent provided for in general
plans, EMCO intends to obtain the approvals necessary for successful
operations in the TERRITORY.
EMCO will, in so far as it is reasonable, assist DANFOSS in
obtaining corresponding approvals in DANFOSS' name and on DANFOSS'
account.
6.3 If DANFOSS should request that EMCO applies for an approval, and if
this request is accepted by EMCO, EMCO will seek an approval at
EMCO's expense. If the PRODUCTS are not approved by one or more
authorities, however, EMCO is under no obligation to alter the
PRODUCTS in order to obtain the approval. EMCO pays the expenses for
Cenlec and other general international approvals. For local
approvals obtained by DANFOSS, DANFOSS will forward all documents to
EMCO. EMCO accepts to deliver PRODUCTS according to these local
approvals. If changes to PRODUCTS having influence on the approvals
are planned DANFOSS shall give notification in advance.
6.4 If DANFOSS receives approvals on their own on any of the PRODUCTS,
DANFOSS will, in so far as it is reasonable, assist EMCO in
obtaining corresponding approvals in EMCO's name and on EMCO's
account, if EMCO wishes to obtain the approval.
7 Alterations of the PRODUCTS
7.1 EMCO has a right to alter the design of the PRODUCTS. However, if
these have an influence on specifications or functions DANFOSS is to
be informed of the alterations at the same period of time as EMCO's
subsidiaries/ agents are being informed, in all cases at least 3
months prior to implementation.
For a period of 5 years from delivery, EMCO shall retain the
capacity to provide spare parts or compatible product solutions for
delivered PRODUCTS.
7.2 DANFOSS is not allowed to modify the PRODUCTS, unless authorized by
EMCO in writing.
However, when EMCO supplies sensors and electronics separately,
DANFOSS is permitted to make the final configuration of these at the
time EMCO has the final Product Structure available to build the
complete meters in accordance with the EMCO PRODUCT and assembly
specification and in order to meet specific customer needs.
8 Prices and Terms of Payment
8.1 EMCO will supply DANFOSS with the PRODUCTS according to the prices
and discounts described in Enclosure 6. Both parties agree to
discuss the prices at any time required by one of the parties.
Once a year EMCO will carry through price alterations (January 1),
if necessary. Such alterations will also apply to DANFOSS. DANFOSS
will be informed in writing to the Purchase Manager and the Product
Manager, of these alterations every year before September 1.
In the case of documented, essential changes in the price of raw
material or other direct costs, EMCO reserves the right to alter
prices without previous notice and at dates other than those
mentioned above.
Already placed an confirmed orders will not be affected by such
price alteration.
In cases where DANFOSS negotiates supplies for very great projects,
OEMs or similar customers and where the limits of this contract do
not make DANFOSS sufficiently competitive, EMCO will be willing to
negotiate a solution which will be for the benefit of both parties.
8.2 The PRODUCTS are to be delivered ex works (Incoterms 1990) from EMCO
to DANFOSS.
However, according to DANFOSS' desire, EMCO in special cases will
provide that the PRODUCTS are delivered directly from EMCO to an
address stated by DANFOSS, however, this is still for DANFOSS' own
account and risk.
8.3 The prices are to be understood as delivery packed ex works in
neutral boxes with yellow DANFOSS label (approved by DANFOSS) on the
outside.
8.4 Manuals prepared by DANFOSS are to be delivered by DANFOSS.
8.5 Terms and conditions of payment for the PRODUCTS to take place
according to Enclosure 6.
9 Ownership Reservation
9.1 All PRODUCTS become the property of DANFOSS as soon as they are
shipped.
10 Strategy, Forecast and Time of Delivery
10.1 DANFOSS agrees to provide EMCO with input for strategies and long
term plans concerning business development.
10.2 DANFOSS agrees to work with EMCO to prepare and submit market
forecast at mutual agreed-upon intervals.
10.3 EMCO is to deliver the PRODUCTS as soon as possible after receipt of
orders from DANFOSS; however, times of delivery are to be specified
in connection with each particular order. If Danfoss cancels a
confirmed order, a re-stocking fee based on the incurred cost is to
be negotiated.
11 Complaints and Service
11.1 EMCO is a ISO 9001 company. EMCO will maintain ISO 9001.
11.2 If DANFOSS customers complain about defects in the PRODUCTS, EMCO
agrees that DANFOSS handles all contacts to the customers of DANFOSS
with regard to, but not limited to, warranty, complaints and service
requirements. In the event of defects EMCO shall inform DANFOSS of
the cause of the defect. EMCO shall furthermore take the necessary
steps to avoid a recurrence of the defect.
11.3 EMCO will assist DANFOSS with repair and service of the PRODUCTS.
The exact extent of this as well as costs of such assistance appear
from Enclosure 4.
11.4 In the event of defective PRODUCTS, DANFOSS shall notify EMCO within
18 months from the manufacturing date stamped on the PRODUCTS,
however a maximum of 17 months after delivery of the PRODUCTS. EMCO
may then either repair or replace the defective PRODUCTS. Costs
associated with disassembly and assembly will be uncompensated;
however, EMCO will pay transport costs for the PRODUCTS and spare
parts, if any, from EMCO to DANFOSS. DANFOSS is to cover transport
costs, if any, from DANFOSS (and its customers) to EMCO.
Should DANFOSS request a special warranty beyond the usual period of
18 months, EMCO may at EMCO's discretion assume such obligation, in
writing.
ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY ON FITNESS FOR A PARTICULAR PURPOSE
ARE HEREBY EXPRESSLY EXCLUDED.
11.5 EMCO is not liable for any kind of indirect or consequential damage
which might occur as a result of defective PRODUCTS.
11.6 Should EMCO or DANFOSS have reason to believe that a third party
claims or will claim that the PRODUCTS manufactured by EMCO violate
patent or trade ▇▇▇▇ rights held by a third party, the party having
this information shall immediately inform the other party in writing
and keep that party informed of the status of the matter.
Should in the evaluation of the legal advisors of one of the parties
there exist a substantial or colourable validity to the third
party's claim, each party is authorized to suspend the purchase and
sale of the PRODUCTS under this Contract, pending clarification of
the dispute.
Should DANFOSS be sued in this connection, EMCO agrees to pay
reasonable costs of litigation (including but not restricted to
attorneys fees, expert witness fees, reimbursement for DANFOSS
management time used in defending the lawsuit, and all advance sums
required to pay the costs of any appeal bonds that might be
necessary to further contest the litigation) and any unappealable
awards of compensation and damages provided by a legal tribunal.
EMCO is also granted the right to participate in the suit or
arbitration as a party.
12 Product Liability
12.1 This Contract does not affect the limitations on EMCO's usual
product liability in cases of damages to persons or personal
property which have occurred because of defective PRODUCTS. However,
EMCO is not liable for indirect or consequential damage.
EMCO shall be capable of documenting to DANFOSS the existence of a
currently valid product liability insurance covering the PRODUCTS
globally.
13 Duration of the Contract
13.1 This Contract is valid indefinitely as of its COMMENCEMENT. If not
previously terminated, the parties agree that 30 months after the
inception of this Contract it shall be renegotiated; the negotiation
shall be completed within 36 months of COMMENCEMENT.
The Contract can at any time be terminated by either party with 12
months written notice.
EMCO shall confirm to supply PRODUCTS up to 24 months after written
notice of termination at comparable prices.
13.2 Further, this Contract can be terminated with 30 days written notice
in the event of:
1) Disclosure to a third party of confidential information.
2) Violation of trade marks, or misuse of company name or
literature.
3) Failure to make payment in reasonable time in accordance with
Encl. 6.
4) Active marketing by DANFOSS of the PRODUCTS in the USA or
Canada.
5) Marketing or sales practices in violation of US or Danish
legislation.
6) DANFOSS develops, manufactures, and/or markets and sells other
Inline Vortex type flowmeters.
If both parties agree that corrective action has been taken within
30 days of written notice, the termination notice is nullified.
13.3 PRODUCTS for which there have already been placed orders before or
at the date of notice of termination are to be delivered from EMCO
to DANFOSS according to this Contract.
13.4 For a period of 5 years after termination of this Contract, EMCO is
to supply DANFOSS with all spare parts or compatible product
solutions under normal conditions and comparable prices. Apart from
this, EMCO's obligation as regards service cease when terminating
this Contract.
13.5 In the event of insolvency, suspension of payments, or bankruptcy of
one of the contract parties, the other party at any time has right
to terminate the Contract without notice.
The same applies if a competitor to one of the contract parties
obtains a considerable influence in the other party, including, but
not limited to, gaining a controlling interest in the company,
purchase of shares, and/or appointment as manager or board member in
the company.
13.6 Neither party shall be held liable for failure to meet its
obligations under this Contract in the case of force majeure,
including, but not limited to, strikes, blockade, armed conflicts,
government restrictions and natural calamities.
Should either party by unable to fulfil its obligations under this
Contract because of force majeure for more than 3 months, the other
party may terminate the Contract with 30 days notice.
13.7 Confidential business information is not to be given to any third
party in a period of 3 years from termination.
14 Law, Venue, Invalidity, Supremacy
14.1 This Contract shall be governed by the law of the State of Colorado
and the law of the United States of America applicable therein. Any
controversy which may occur in relation to this Contract shall
finally be settled in accordance with the rules of Conciliation and
Arbitration of the International Chamber of Commerce (ICC), Paris.
Meetings are held in a city of EMCO's choice in Colorado, USA.
Process language is English.
14.2 In the event that single clauses should be rendered wholly or partly
invalid, the validity of the remaining clauses or the remaining
parts of such clauses are not rendered invalid.
14.3 This Delivery Contract supersedes and renders null and void the
previous Delivery Contract concerning the PRODUCTS between EMCO and
DANFOSS effective on 1 November 1995.
Enclosure 1: PRODUCTS
Enclosure 2: Exclusive Sales Rights
Enclosure 3: Labels
Enclosure 4: Repair and Service
Enclosure 5: Approvals
Enclosure 6: Price, Discounts and Conditions
Place and date Place and date
for Danfoss for EMCO
6.OCT98
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Encl. 1 to Delivery Contract EMCO - DANFOSS
PRODUCTS:
From EMCO the Delivery Contract covers the following:
1a) i) Label (as defined in Encl. 3) Products:
EMCO In-line Vortex family
ii) EMCO Products with EMCO label and Danfoss sticker: (nonexclusive).
FP 93 flow computer
1b) Accessories and Spare Parts to the PRODUCTS are also PRODUCTS
Encl. 2 to Delivery Contract EMCO - DANFOSS
DANFOSS exclusive sales rights to the PRODUCTS.
1. DANFOSS has exclusive sales rights to In-line VORTEX Family for
Denmark Estonia Austria Rumania
Sweden Latvia Hungary Bulgaria
Norway Lithuania Slovenia Albania
Finland Poland The Czech Republic Greece
UK Germany The Slovak Republic Serbia
Ireland Holland 1) Switzerland Croatia
Iceland Belgium Austria Hercegovina
Italy Bosnia
Spain
Luxemburg
Portugal
DANFOSS has acquired exclusive sales rights for the PRODUCTS for the whole
of Europe on 29 May 1997 excluding France, Russia, Ukraine, White Russia,
Kazakhstan, Uzbekistan, Georgia.
1) Shell, Holland:
As long as Danfoss Vorflow is not on the approved vendor list at
Shell, DANFOSS is working with EMBA to promote and sell the EMCO
labelled Vortex meter to Shell.
Encl. 3 to Delivery Contract EMCO - DANFOSS
In connection with the DANFOSS marketing of EMCO manufactured flowmeters the
following labelling shall be valid:
a) Label products - In-line Vortex - family
These products shall be marked as label products. EMCO will attach
an EMCO approved DANFOSS label, and make necessary modifications in
the appearance of the label products so they appear to be DANFOSS
products. Literature and packing shall also bear the DANFOSS name
while the EMCO name is removed. The nature, extent and payment for
these changes shall be agreed between the parties. The label
products will be packed in neutral packing materials with DANFOSS
yellow labels, approved by DANFOSS.
b) Sticker products.
Sticker products shall consist of EMCO's flowcomputers and are to be
marketed by DANFOSS under EMCO label. EMCO will prior to delivery
attach a DANFOSS sticker to these products, accompanying literature
and packing. Content and appearance with regard to the DANFOSS
stickers are to be agreed upon. It is the intention of the parties
to market EMCO flowcomputers as a label product when an appropriate
sale volume (to be agreed upon by the parties) is obtained.
c) Accessories and spare parts.
Accessories and spare parts to the products are not to be labelled,
used in connection with the stickers mentioned in b) above or
altered by DANFOSS.
d) Costs.
All costs for manuals are to be paid by DANFOSS.
Changes which involve costs may be implemented only by agreement
with DANFOSS.
Encl. 4 to Delivery Contract EMCO - DANFOSS
Assistance in connection with service/repair
As regards service and repair, the parties have agreed as follows:
- All return and complaints will be handled in accordance with current EMCO
Service policy No. ......
- DANFOSS normally will not carry out repairs on PRODUCTS which have been
manufactured by EMCO.
- The education specified below shall enable service instructors to perform
an on-site fault finding/ application/ problem solving test with respect
to PRODUCT use.
- In so far as it is reasonable, EMCO will assist DANFOSS by telephone
and/or by means of written material on the assumption that the required
instructions are not stated in EMCO's data sheets, manuals or (service)
instructions, or mentioned in material provided and taught at a seminar
for DANFOSS held by EMCO.
- EMCO offers the following necessary service equipment:
To be agreed upon
- DANFOSS has agreed to carry the costs in connection with:
Service and field service on all PRODUCTS sold by DANFOSS.
Encl. 5 to Delivery Contract EMCO - DANFOSS
Approvals in Europe:
1. At present
VORFLO * CENELEC hazardous area approval on Vor 1100 / 1000 /
2000 EExd(ib)
2. Requirements:
1. VORFLO * CE approval (electrical)
2. VORFLO * CENELEC hazardous area approval in EExib Solution
3. FP 93 * CE approval (electrical)
3. Wishes in order of priority:
1. VORFLO * NAMUR (German chemical electrical app.)
2. FP 93 * NAMUR (German chemical electrical app.)
3. VORFLO * Custody Transfer approval for steam and gaze.
4. VORFLO and FP 93:
East European Type, custody transfer and hazardous areas
approval in EExib solution.
DANFOSS shall be consulted prior to adoption of PRODUCT alterations which might
affect approvals.