Quotation - Remmele Engineering Inc. and Ultrafem Inc.
CQ#95-739A-SAP
Page 1 of 9
REMMELE ENGINEERING INC.
AUTOMATION DIVISION
October 17, 1995
Ultrafem Inc.
415 N. Higgins, Suite 14
Missoula, MT 59802
ATTENTION: Mr. Wendell Guthrie
Remmele Engineering, Inc. is pleased to submit the following revised
quotation for Softcup-Registered Trademark- assembly equipment to be furnished
to Ultrafem Inc. for use at their facility in Missoula, Montana. This
quotation supersedes all previous proposals and quotations. All changes are
noted with lines in the left margin.
EQUIPMENT DESCRIPTION
Remmele Engineering will design, build and install equipment to support your
startup production. The equipment design will be based on the manufacturing
processes which have been developed and defined by Ultrafem.
Two independent, manually-loaded systems will be provided; a heat seal
station and a thermoforming system consisting of a pre-heat station and a
forming station. Each of these three stations will perform its operation of
forty (40) units per equipment cycle. (Refer to attached drawings:
SOFTCUP-Registered Trademark- HEAT SEAL STATION and VACUUM FORM
STATION/PRE-HEAT STATION.)
The cycle rate of these stations will be dependent on the rate of manual
loading and unloading as well as the rate of each process. Based on a
6-second heat sealing and vacuum forming cycle, a 15-second average station
cycle rate can be anticipated.
PLCs will be used to control all automatic functions. The heat seal station
will be controlled by its own PLC, and the thermoforming system will have one
PLC to control both the pre-heat station and the forming station.
Product will be carried to and from these stations in specially-designed
product carriers. These product carriers will be manually loaded with rims
upstream of the equipment and manually unloaded after assembly and forming.
Each carrier will hold forty (40) units in a 4 by 10 matrix. Twelve (12)
product carriers will be supplied with the equipment.
An operator will be required to load carriers to a manually-operated carrier
shuttle on each station. These carrier shuttles will be designed to allow the
operator to position the carrier without placing his hands in an unsafe
location. Pushing the shuttle to its fully inserted location will initiate
the station cycle; retracting the shuttle will reset the station.
<PAGE>
CQ#95-739A-SAP
Page 2 of 9
A simple non-powered conveyor system will be provided to convey carriers
through the assembly sequence. [Refer to attached drawing. PLAN VIEW.]
HEAT SEAL STATION
The Heat Seal Station will heat seal 10 mil Kraton film to Softcup-Registered
Trademark- rims.
The assembly of the film to the rim will be performed by tooling contained in
a heat sealing die set. Heat sealing will be accomplished by
electrically-heated dies mounted to a water-cooled platen. Cooling water will
be provided by a chiller supplied with the system.
Our preferred approach to the design of the die heating and mounting system
is to employ a replication of your system which uses one heater to heat five
dies. Eight (8) heater/die assemblies, providing a total of forty (40) dies,
will be incorporated in the die set.
We recognize your concern for maintaining temperature consistency between
dies. We will expedite the design and construction of this portion of the
system to provide maximum opportunity to take action, if necessary, to assure
acceptable performance of this heating system.
A film stripper and heat seal stripper, similar to your existing system, will
also be incorporated into the die set.
The Kraton film will be supplied to the system from a roll. The film will be
pulled between the heater dies and the product carrier by a manually-operated
crank.
One station operator will load a carrier to the carrier shuttle and push the
shuttle into position. With a segment of Kraton film in position, the heat
seal die will be automatically actuated when the carrier shuttle reaches its
fully inserted position. The sequence of heater and stripper operation will
be controlled automatically by the PLC. When this sequence is complete, a
second operator will be signaled to retract the shuttle to the load position.
This operator will remove the finished pallet from the shuttle and return it
to the conveyor. The operator will then manually index the film feeder to
present a new segment of film, preparing the station for the next cycle.
THERMOFORMING SYSTEM
The Thermoforming System will thermoform the product into its final
configuration. It will be able to accept product in the product carriers
immediately after processing by the Heat Seal System. The thermoforming
system will have a pre-heat station and a forming station, each of which will
be manned by an operator. The timing requirements for forming after pre-heat
are such that the carriers can be manually transferred between stations.
Pre-heating will be accomplished by a radiant heating system. This system
will provide a uniform watt density over the area of the product carrier. The
exact energy input to the product will be a function of distance from the
product to the heat source and time.
The pre-heat station operator will load a carrier onto the carrier shuttle
and push the shuttle into position. A timer will be initialized when the
carrier shuttle reaches its fully inserted position. After a programmed
period of time has elapsed, the operator will be signaled to retract the
shuttle to the load position. The operator will then pass the pre-heated
carrier down the conveyor to the forming station.
<PAGE>
CQ#95-739A-SAP
Page 3 of 9
The forming station operator will position the pre-heated carrier on the
carrier shuttle and push the shuttle into position. When the carrier shuttle
reaches its fully engaged position, the carrier will be lifted by a lower
platen and pressed against vacuum cavities mounted to a stationary upper
platen. This pressing action will create a seal between the rim and the
vacuum cavity. Once this is achieved, a second lower platen containing male
pushers will be elevated. These male pushers will both initiate the forming
of the film in the center of the rim and partially cool the film in the
center of the rim where the film experiences maximum deformation. All three
elements of this mechanism--the lower platen, the male pusher and the vacuum
cavity--will be temperature controlled to approximately -plus/minus-5 degrees
of a specified temperature.
When the male forming tool and lower platen are in position, vacuum will be
introduced in the vacuum cavity to form the Softcup-Registered Trademark-.
There will be no monitoring of the forming vacuum in this system, based on
your experience that defects can be detected visually with reliability. After
a programmed period of time has elapsed, vacuum will be turned off, the male
forming tool and lower platen will be returned to their starting position,
and the operator will be signaled to retract the shuttle to the load
position. The operator will then pass the completed carrier down the conveyor
for unloading.
GENERAL DESIGN CONSIDERATION FOR EQUIPMENT TO ASSEMBLE A MEDICAL DEVICE
We assume that the manual assembly modules will operate in a controlled
environment designed to minimize sources of product contamination. The
product to be assembled is a medical device and will be manufactured under
FDA GMP guidelines.
The assembly modules will be designed and constructed to operate while
minimizing introduction of contamination to the product, assuming the
equipment is maintained to specification standards and operated by trained
employees. Instructions and procedures for maintaining the equipment to these
standards shall be included in the equipment manual provided with the
equipment.
Tooling components which come in direct contact with the product shall either
be aluminum with a hard anodize or stainless steel. Two exceptions to this
shall be: 1) the heat seal tools, which will have a Silver Stone EMC 420 soft
textured finish, and 2) the vacuum cavities, which will be unfinished 6061-T6
aluminum.
FURTHER DEVELOPMENT OF HEAT SEALING TOOLS AND HEATING SYSTEM
As discussed during our meeting in Missoula on September 1, there may be ways
in which the design of the heat sealing tools and the heating system can be
improved, including the provision of individual heaters for each heat seal
tool. The ultimate design will optimize heat sealing performance of multiples
of up to one hundred (100) tools while minimizing the operating, maintenance
and replacement costs of the tools.
For the manual line proposed in this quotation, Remmele will commit to a heat
sealing heating system which will provide consistent and reliable performance
of the heat seal operation. This assumes a temperature tolerance of
approximately -plus/minus-5 degrees F., from an optimum setpoint at each tool.
The profile design of the weld tools in the area of the weld is considered
finalized and will be incorporated into the design of the manual equipment.
Throughout the development of this manual equipment, Remmele will be
considering ways to improve the design of the heat sealing system for
incorporation into the fully automated system.
<PAGE>
CQ#95-739A-SAP
Page 4 of 9
FINISH
The Equipment will be painted or otherwise finished for neat appearance and
to resist corrosion. It will be painted per Ultrafem's instructions for
meeting O.S.H.A. standards. Commercial components will be supplied with their
original finish.
SPECIFICATIONS
ELECTRICAL EQUIPMENT: 480-volt, 3-phase, 60 Hertz. All wiring will be done
in accordance with the National Electric Code, in
particular NEC Article 670, INDUSTRIAL MACHINERY,
and its referenced standard NFPA 79, ELECTRICAL
STANDARD FOR INDUSTRIAL MACHINERY.
PNEUMATIC EQUIPMENT: This equipment will operate off plant air supply at
approximately 80 P.S.I.G.
COOLING WATER: The equipment will require a supply of cooling
water; this will be supplied by Ultrafem.
PART DRAWINGS & Reference OP-1001-3, Part #0001 dated 8/11/93.
SPECIFICATIONS: Process parameters per list agreed upon by
Remmele and Ultrafem during meeting on 9/1/95
and supplied by Ultrafem via fax on 10/6/95.
GUARANTEE
The Equipment is guaranteed to conform to the description and specifications
as outlined herein during the length of the warranty period.
INSPECTION AND ACCEPTANCE
Remmele will notify Ultrafem when the Equipment is ready for inspection. We
request that you schedule an acceptance run as soon as possible after such
notification.
The acceptance run at Remmele's facility will be two (2) hours in length.
During this acceptance run, the equipment efficiency shall not be less than
90 percent of the gross production possible with a 15-second cycle. Two (2)
operators will man the heat seal station, one (1) operator will man the
pre-heat station, and one (1) operator will man the vacuum forming station.
Product- and process-induced failures shall not be included in this
calculation.
Product-induced failure incidents are defined as those resulting from product
materials supplied by Ultrafem being out of specification (e.g., holes or
foreign material in the film). Process-induced failure incidents are defined
as those resulting when a process is executed in accordance with
specifications supplied by Ultrafem and the resultant product is
unacceptable. Remmele assumes responsibility for incidents associated with
design and construction of the equipment which inadequately executes the
processes as defined by Ultrafem. The classification of failure incidents is
a responsibility shared by the Remmele Project Engineer and the Ultrafem
Project Manager. Both individuals must agree on the outcome. We would further
expect that simple operator mistakes would not be included in efficiency
calculations for acceptance.
<PAGE>
CQ#95-739A-SAP
Page 5 of 9
An identical acceptance run will be performed at Ultrafem's facility after
installation. The conditions existing during the acceptance run at Remmele's
facility, including the condition of samples and the environment in which the
Equipment is placed, shall be duplicated to the furthest extent possible
during the acceptance run at Ultrafem's facility. It shall be the joint
responsibility of Remmele and Ultrafem to inspect and recognize the
conditions existing during the acceptance run at Remmele's facility and to
duplicate those conditions during the acceptance run at Ultrafem's facility.
Upon successful completion of the acceptance run at Ultrafem's facility,
final acceptance will occur.
Remmele will thoroughly instruct Ultrafem's representatives in the proper
operation and maintenance of the Equipment during their visit to our plant.
TRYOUT PARTS:
To assure that Remmele can meet its delivery commitment and performance
guarantee, production part samples will be required according to the
following schedule:
(100) rims and (1) roll of Kraton film Two (2) weeks after receipt of order
to begin equipment design
(100,000) rims and (10) rolls of Kraton 10,000 units/week for four (4)
film for equipment development and weeks, commencing four (4) weeks
debug after receipt of order; remainder to
be supplied 30,000 units/month for
two (2) months, commencing eight
(8) weeks after receipt of order.
(40,000) rims and (4) rolls of Kraton Sixteen (16) weeks after receipt of
film for the acceptance run at order
Remmele's facility
(40,000) rims and (4) rolls of Kraton Twenty-two (22) weeks after receipt
film for the final acceptance run at of order
Ultrafem's facility
EQUIPMENT STARTUP AND SUPPORT
The Equipment price includes labor costs for installation and startup support
and final acceptance testing at Ultrafem's facility. Transportation and
living expenses for these services, including the cost of traveling to and
from the location of the Equipment, are not included in the Equipment price
and will be charged to Ultrafem at cost.
Remmele's representative in your area is Mr. Carmen Pistillo of Griot Group
Inc., 2230 S. McClintock Dr., Suite 1, Tempe, AZ 85282. His telephone number
is (602) 968-4428.
PRICE
$357,000.00 F.O.B. Remmele's dock skidded for domestic shipment.
<PAGE>
CQ#95-739A-SAP
Page 6 of 9
DOCUMENTATION
The Equipment price includes paper copies of the following documents:
electrical schematics, air schematics, timing diagrams and assembly drawings.
These will be drawn to ANSI Y14.5 standards on Remmele forms.
A Remmele standard equipment manual is included in the Equipment price. The
manual will include the following information:
- Safety
- Equipment overview
- Description of operations and controls
- Setup, calibration and adjustment
- Recommended spare parts list
- Fabricated parts list
- Purchased parts list
- Purchased part literature
These documents will become the property of Ultrafem.
PAYMENT TERMS
30% of total with order.
The balance is to be paid through progress payments at the following
milestones:
30% after an acceptable review at Remmele's facility of approximately
80% of the mechanical and electrical design -- (approximately 6 weeks
after receipt of order);
15% upon start of assembly -- (approximately 14 weeks after receipt of
order);
10% upon acceptance of the equipment at Remmele's facility --
(approximately 20 weeks after receipt of order; and
15% upon acceptance of the equipment at Ultrafem's facility, covered by
a Letter of Credit, Escrow Account, or other similar mutually-
acceptable instrument. This instrument must be presented upon
acceptance of the equipment at Remmele's facility; shipment of the
equipment from Remmele's facility will be contingent upon Remmele
receiving the mutually-acceptable instrument.
All payments are due net ten (10) days after receipt of invoice.
DELIVERY
Twenty (20) weeks from receipt of purchase order to acceptance at Remmele,
subject to confirmation at time of order.
This quotation includes and is subject to the attached Remmele Automation
Division Standard Conditions of Sale. In the event there are conflicts
between this quotation and the attached Standard Conditions of Sale, this
quotation will control. (This quotation and the attached Standard Conditions
of Sale will be referred to together as the "Quotation.")
<PAGE>
CQ#95-739A-SAP
Page 7 of 9
No statement or recommendation not contained or referenced herein shall have
any force or effect unless in an agreement signed by an officer or authorized
representative of Remmele Engineering, Incorporated.
Respectfully submitted:
SAINT PAUL, MINNESOTA REMMELE ENGINEERING, INC.
AUTOMATION DIVISION
October 17, 1995 By /s/ William F. Iacoe
------------------------------------
William F. Iacoe
Vice President and General Manager
We accept this Quotation and order the
items as quoted, and we accept the
attached Standard Conditions of Sale,
including all warranty provisions.
ULTRAFEM INC.
By /s/ John W. Andersen
------------------------------------
Title Chairman/CEO
---------------------------------
Dated Oct. 18, 1995
---------------------------------
REMMELE ENGINEERING, INC.
AUTOMATION DIVISION
CONDITIONS OF SALE
I. ACCEPTANCE OF THIS QUOTATION: This Quotation is an offer to sell which
is not binding upon Remmele until accepted by the Buyer. To accept this
Quotation, Buyer must return a fully executed copy of the Quotation to
Remmele within sixty (60) days from the date hereof. Buyer's acceptance of
this Quotation is limited to the terms of the Quotation. The contract
shall consist of all the terms and conditions set forth herein, unless
Remmele agrees in writing to other terms and conditions. If this Quotation
is not accepted within the sixty (60) day period, it shall no longer be
binding upon Remmele unless reaffirmed at the request of the Buyer.
II. CANCELLATION: The Buyer may cancel an order by submitting a written
notice of cancellation to Remmele before the Equipment is delivered. If
the Buyer cancels an order, it must compensate Remmele at Remmele's
standard rates and profit margins for the material and labor that Remmele
expended or committed, up to and including the date on which the written
notice of cancellation was received by Remmele. Upon cancellation and
payment by the Buyer, all parts will become the Buyer's property. All
designs, plans, drawings and specifications shall remain the property of
Remmele.
III. DELAYS: If a delay occurs in any of the events described in this
Quotation for which payment is due and such delay is not attributable to
Remmele but is, instead, attributable in substantial part to an act or
omission on the part of the Buyer, the Buyer will pay to Remmele eighty
percent (80%) of the amount due within sixty (60) days from the scheduled
completion date for such event. The remaining twenty percent (20%) will be
paid upon the actual completion of the event.
<PAGE>
CQ#95-739A-SAP
Page 8 of 9
If delays which substantially inhibit Remmele's performance under this
contract exceed one hundred twenty (120) days in the aggregate, and such
delays are not attributable to Remmele but are, instead, attributable in
substantial part to an act or omission on the part of the Buyer, Remmele
may, at its option, consider the order canceled by the Buyer and subject
to the cancellation provision contained in these Conditions of Sale.
IV. CHANGE REQUESTS AND CHANGE ORDERS: If the Buyer wishes to expand or
modify the work scope of the contract between Remmele and the Buyer, the
Buyer must submit a written work scope change request. Remmele will
respond promptly to such a request by stating in writing what effect, if
any, the request will have on the purchase price and delivery date of the
Equipment.
After Remmele and the Buyer agree upon a work scope change request and any
adjustments to the purchase price or delivery date, the Buyer shall submit
a written change order to Remmele, signed by an authorized representative
of the Buyer. A written change order must be received by Remmele before
any changes will be made to the present scope of work.
V. DELIVERY: Every effort will be made to ship orders by the date
promised, but REMMELE SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT,
INDIRECT, CONSEQUENTIAL OR INCIDENTAL, ARISING OUT OF ANY DELAY IN
DELIVERY.
VI. SAMPLES: The Buyer must send sufficient samples of product to Remmele
for design and test purposes. These samples must be clean and dry. They
should be shipped at the time of the order and will be provided at no
cost to Remmele. All products will be retuned with the completed
Equipment. It is understood that a portion of said products may be
damaged during setup and run-in of the Equipment.
As with any automated equipment, it is very important for the samples
to conform to specifications and to be consistent. For this reason, this
Quotation is based on the premise that the samples provided for
Remmele's design and test purposes will consistently conform to the
Buyer's production specifications/drawings in every respect and will be
consistently within specification/drawing limits. Failure to comply with
this premise could affect delivery time, project cost, functionality,
production rate, or all of these factors.
VII. SPARE PARTS: The purchase price of the Equipment does not include any
spare parts; however, upon request, Remmele will furnish the Buyer with
a list of parts which we would recommend that you stock for maintenance
purposes.
VIII. TAXES: Any tax or other federal, state or local governmental charge on
the production, sale or shipment of the Equipment, now or hereafter
imposed, shall be added to the price herein quoted and shall be paid by
the Buyer.
IX. SAFETY REQUIREMENTS: Remmele warrants that the goods covered by this
order will conform to nationally recognized standards under the
Occupational Safety and Health Act (O.S.H.A.) at the date of the
purchase order; however, Remmele does not assume any responsibility for
conformance to local codes or those codes not known by Remmele. Buyer
agrees to participate with Remmele in a review of the equipment for
compliance of nationally recognized codes.
Remmele will fully cooperate with the Buyer in the design, manufacture
or procurement of additional safety features or devices which are
deemed necessary under subsequent O.S.H.A. standards or any other
statute, ordinance or governmental regulation. The price at which all
such additional services and equipment shall be furnished by Remmele will
be at Remmele's standard rates or prices then in effect, or as mutually
agreed to by Remmele and the Buyer.
The Buyer agrees, at its own cost and expenses, to train all equipment
users not trained by Remmele to follow safe operating procedures and to
understand and retain the information contained in the operating
manuals, maintenance manuals and safety warning signs.
X. PERMITS: The Buyer shall be responsible for the procurement at its
expense of any special permits required for the design, fabrication,
testing, transport, installation or operation of the Equipment.
XI. TITLE AND ACCESS TO THE EQUIPMENT: Title to the Equipment shall pass
from Remmele to the Buyer at the time Equipment is delivered or shipped
under the F.O.B. terms contained in this Quotation. Prior to that time,
the Buyer will be given reasonable access to the Equipment.
In the event that this Quotation includes an acceptance test at the
Buyer's facility, the following shall apply: Although title shall pass
to the Buyer at the time of delivery or shipment, the Buyer will have no
right to work on or with the Equipment without Remmele's authorization
until final acceptance at the Buyer's facility. If the Buyer works on or
with the Equipment prior to final acceptance without Remmele's
authorization, all warranties, guarantees and remedies extended in this
Quotation are void, Remmele's obligations under this Quotation will be
deemed complete, and Remmele will not be in any way responsible for any
damage to the Equipment or other property or for any injury to any
person. After the Equipment is delivered to the Buyer, but before final
acceptance, the Buyer shall give Remmele reasonable access to the
Equipment for the purposes of: (1) installing the Equipment, in the
event that installation services are included in this Quotation; and
(2) preparing the Equipment for final acceptance testing. Remmele shall
have the right until final acceptance to take parts from the Equipment
back to its facility for purposes related to achieving final acceptance.
XII. WARRANTIES: Remmele warrants that the Equipment shall conform to the
description and specifications found in this Quotation. The warranty
period is one (1) year and begins on the date of final acceptance at
Buyer's facility.
THE EXPRESS WARRANTIES CONTAINED IN THIS QUOTATION ARE GIVEN IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REMMELE EXCLUDES AND DISCLAIMS
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR
PURPOSE.
In order for the warranties contained in this Quotation to remain in
effect, the Buyer must follow and demonstrate compliance with Remmele's
and any of Remmele's suppliers recommended maintenance procedures.
On all items purchased by Remmele, the warranties of the manufacturer
of those items shall apply to those items.
XIII. PATENT INFRINGEMENT: Remmele warrants that it is without knowledge that
the Equipment and its sale or intended use designated in this Quotation
according to Remmele's specifications or written recommendations, if any,
will infringe any third party patent rights; but Remmele makes no
warranty whatsoever for infringement of third party patents with respect
to Equipment incorporating designs or specifications furnished by the
Buyer to Remmele or to claims that the product produced by the Equipment
itself infringes or otherwise constitutes unauthorized use of any patent,
copyright, trade secret or other intellectual property right. Except as
limited below, Remmele shall indemnify and hold the Buyer harmless from
any infringement in breach of the above warranty, provided the Buyer
gives Remmele prompt notice of any claimed infringement and the right to
assume the defense of such claim. Furthermore, in the event of any such
claimed infringement, Remmele may, at its sole option, procure for the
Buyer, at Remmele's expense, the right to continue using the Equipment,
modify it so it becomes noninfringing, or remove the Equipment and refund
the total purchase price therefor plus the expenses incurred by the Buyer
in shipping the Equipment to the Buyer's facility. In no event shall
Remmele's cumulative liability for the above indemnity or for any past or
future royalties or damages exceed the purchase price of the Equipment.
<PAGE>
CQ#95-739A-SAP
Page 9 of 9
XIV. REMEDIES: Remmele shall repair or, at its option, replace any
Remmele-designed and manufactured item which, within one (1) year of
the date of shipment, proves defective in design or workmanship. All
claims relating to defects in the Equipment or in any of its parts must
be submitted to Remmele in writing within one (1) year of shipment. If
the defective item can be sent to Remmele, Remmele's responsibility to
repair or replace shall be contingent upon the Buyer returning the
defective item to Remmele. The Buyer will be invoiced for the
replacement part, and credit will be issued upon the return of the
defective part to Remmele.
Remmele will provide the Buyer with on-site warranty assistance,
provided the defective part cannot be sent to Remmele or the issue in
question cannot be resolved over the telephone. Remmele will make its
best reasonable effort to respond to any warranty issues in a timely
fashion to meet the Buyer's needs. If the Buyer and Seller mutually
agree that the situation could have been resolved by qualified Buyer
maintenance personnel and telephonic consultation with Seller project
personnel, transportation and living expenses incurred during these
warranty calls, including the cost of traveling to and from the
location of the Equipment, will be billed at cost.
Remmele's responsibility and liability to the Buyer is limited to the
repair and replacement remedy set forth in this section, provided,
however, that if the cost of repair or replacement exceeds the quoted
price of the Equipment, Remmele may, at its option, refund the quoted
price to the Buyer. These are the Buyer's sole and exclusive remedies.
If these limited remedies are held to have failed of their essential
purpose, or are otherwise held invalid or inapplicable, Remmele's
liability is limited to the purchase price of the Equipment, regardless
of the legal theory of any claim. IN NO EVENT AND UNDER NO CIRCUMSTANCES
SHALL REMMELE BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.
XV. NON-WARRANTY SERVICE AGREEMENT: Service calls that are not related to
warranty work will be provided under Remmele's current service rates.
XVI. THIRD-PARTY INDEMNIFICATION: Remmele agrees, at its own cost and
expense, to defend and hold the Buyer harmless from any claim by any
person, firm, corporation or governmental unit which is caused by or
arises out of the intentional malfeasance or negligent acts or omissions
of Remmele.
The Buyer agrees, at its own cost and expense, to defend and hold
Remmele harmless from any claim by any person, firm, corporation or
governmental unit which is caused by or arises out of the intentional
malfeasance or negligent acts or omissions of the Buyer.
XVII. DRAWING AND DOCUMENT INDEMNIFICATION: In the event any claim arises
out of: (1) the negligent or careless use or intentional misuse of the
drawings and documents supplied pursuant to this Quotation by the Buyer
or the Buyer's employees in maintaining or supporting the Equipment; or
(2) any use of these drawings and documents, other than in maintaining
or supporting the Equipment, by the Buyer, the Buyer's employees, or
anyone else other than Remmele or its vendors, the Buyer hereby agrees
to defend, indemnify and hold Remmele harmless from all expense,
including payment of damage awards, settlements, costs and legal fees,
incurred by Remmele in the defense of said claim. In the event of an
indemnifiable claim, Remmele, at Remmele's sole option, may permit the
Buyer to treat said claim as if it had been brought directly against the
Buyer and to settle or defend said claim at the Buyer's expense and as
the Buyer sees fit.
XVIII. INTEGRATION: This Quotation sets forth the entire understanding and
agreement between Remmele and the Buyer relating to the Equipment and
merges all prior oral discussion between them. No modification,
extension, or waiver of these documents or any provision hereof shall be
binding unless mutually agreed to in writing.
XIX. FORCE MAJEURE: The obligations of Remmele and the Buyer to perform
shall be excused during each period of delay caused by matters which
are beyond the reasonable control of the party obligated to perform,
such as strikes, shortages of raw materials, government orders, or acts
of God, and the time for performance shall be extended for such period;
provided that if an event of FORCE MAJEURE occurs, the party who is
claiming to be excused from performance shall give prompt notice of the
event of FORCE MAJEURE to the other party; and provided further that if
an event of FORCE MAJEURE occurs which prevents performance of the
contract and continues for a period of more than one hundred twenty
(120) days, Remmele may, at its option, cancel the contract without
further liability to Remmele.
XX. HEADINGS: All section and paragraph titles and captions are asserted
for ease of reference only and are without contractual significance or
effect.
XXI. SEVERABILITY: If any provision of this Quotation is held unenforceable
or invalid or in conflict with the law of any competent jurisdiction,
it will be deemed severed from this Quotation and the remaining portions
of this Quotation shall remain in full force and effect.
XXII. APPLICABLE LAW: The Buyer and Remmele agree that this Quotation shall
be deemed to be executed in the State of Minnesota. The Buyer and
Remmele further agree that this Quotation shall be governed by and
shall be construed and interpreted in accordance with the laws of the
State of Minnesota.
XXIII. RESOLUTION OF DISPUTES: Any controversy, claim or dispute arising out
of or relating to this Quotation, or to the alleged breach of any
element of this Quotation either by Remmele or the Buyer, shall be
settled as follows: Both parties will first attempt in good faith to
promptly resolve the controversy, claim or dispute by negotiations
between senior executives of the parties who have authority to settle
the matter (and who do not have direct responsibility for administration
of this agreement). If the controversy, claim or dispute has not been
resolved by such negotiations within sixty (60) days after written
request by either party, the matter shall upon written request of either
party then be settled by binding arbitration before three (3)
arbitrators in accordance with the Commercial Arbitration Rules of the
American Arbitration Association (the "AAA"), and judgment on the award
rendered by the Arbitrators may be entered in any court having
jurisdiction thereof. At least two of the three arbitrators shall be
experienced in and have knowledge of factory automation. The parties
agree that any arbitration hearing shall be held in Saint Paul,
Minnesota. Any claim in connection with this Quotation not made within
two (2) years after delivery of the Equipment shall be waived.