SIMPLE MANUFACTURING AGREEMENT FOR DELIVERABLES (CUSTOMER ORIENTED)

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This Manufacturing Agreement ("Agreement") is made as of December 11, 2018 (the "Effective Date") by and between , an individual with an address at , , ("Party-1"), and , a company with an address at , , ("Party-2").

This Agreement describes Party-1's purchase of Deliverables from Party-2.

NOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, the parties hereby agree to the following terms and conditions:

1. DEFINITIONS. 

(a) "Deliverables" means the deliverables Party-2 provides to Party-1 as described in this Agreement.

(b) "Government Authority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of the United States of America or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality, territory, protectorate or possession.

(c) "Law" means all laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of law of any Government Authority.

2. DELIVERABLES.  Party-2 agrees to provide the following Deliverables: [QR-43]

3. MANUFACTURING DESIGN REQUIREMENTS.

(a) Software Deliverables.  Each Deliverable to be supplied under this Agreement may incorporate computer software as part of that Deliverable.  Computer software that is developed by Party-2 specifically for Party-1 under this Agreement ("Custom Software") must be delivered to Party-1 with each Deliverable, including source code, and all the intellectual property and proprietary rights in such Custom Software, including the source code, vests as stated in the section entitled "Intellectual Property" in this Agreement.  Computer software of third party vendors may also be integrated into each Deliverable ("Third Party Software").  Party-2 agrees to assign to Party-1 (or secure for Party-1 at no additional cost) all rights under Party-2's Third Party Software licenses so that Party-1 can fully use the Deliverables as contemplated under this Agreement.  Each Deliverable may also include software that has been developed by Party-2, at Party-2's expense, for general use in Party-2 products which are proprietary to Party-2 ("Software Deliverables").  Upon full payment for each respective Deliverable, the Party-2 Standard Software is licensed to Party-1 as follows: Party-2 grants Party-1 a perpetual, non-exclusive, worldwide, non-transferable, and non-sublicenseable license to use the Software Deliverables for Party-1's internal business purposes. This license survives the Agreement, but may be terminated in the same way described in the provision entitled "Termination for Breach" in this Agreement. [QR-108]

(b) Spare Parts.  Party-2 hereby covenants that it will maintain an inventory of spare parts in good working order to be available to Party-1, including custom spare parts, needed for the repair and maintenance of the Deliverable for a period of five (5) years. These spare parts will be made available to Party-1 at the same price Party-2 generally charges Party-2's customers. [QR-130]

(c) Manufacturing Records.  Party-2 agrees to retain all records relating to the manufacturing of Deliverables for a period of not less than ten (10) years from the date of manufacture of each Deliverable. [QR-131]

4. OWNERSHIP.

(a) Ownership, Title, and Risk of Loss.  Ownership of, title to, and risk of loss for the Deliverables passes to Party-1 upon Party-2's delivery of the Deliverables to a nationally reputable carrier, fully insured with a nationally reputable insurer (such insurance may be invoiced to Party-1 at cost). [QR-86]

(b) Pass-Through.  Without limiting any other terms and conditions set forth in this Agreement, Party-2 agrees to pass through or assign to Party-1 any third party warranty and any other rights, rebates, discounts or benefits, which Party-2 receives in connection with any Deliverables.

(c) Documentation. Party-2 agrees to deliver with the Deliverables two (2) copies of the documentation and other materials that Party-2 ordinarily provides to purchasers of the Deliverables.

5. FEES. Except as expressly stated in this Agreement, there are no additional fees, charges or expenses incurred.  In consideration for Party-2 performing all obligations under this Agreement, Party-1 agrees to pay Party-2 a flat fee of: [QR-53]   Party-2 shall invoice Party-1 for the entire overall flat fee in this Agreement on the date the Deliverables are received by Party-1. [QR-56]

6. WARRANTIES.

(a) Mutual Warranties.  Each party represents, warrants and covenants to the other that:

(i) Law Compliance.  It complies with all applicable Laws.

(b) Warranties by Party-2.  Party-2 represents, warrants and covenants to Party-1 that:

(i) Warranty Length.  For a period of thirty (30) days after receipt, the Deliverables conform to the requirements of this Agreement, are free from any defect in material and workmanship, and are free of all liens, claims and encumbrances of any kind. [QR-83]

(c) Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, PARTY-1 AND PARTY-2 EACH MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OR COVENANTS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

7. INDEMNIFICATION. The term "Claim" means any claim, suit or action by any third party, and the term "Losses" means any damages awarded and fines assessed in any Claim by a court of competent jurisdiction or pursuant to an arbitration proceeding, any amounts due under Claim settlement, and any other costs or expenses incurred in complying with any injunctive or equitable relief or any settlement requirements.

(a) Party Indemnification.

(i) Indemnification by Party-2. Upon receipt of notice from Party-1 requesting Party-2 to do so, Party-2 agrees to indemnify, defend, and hold harmless Party-1 and its affiliates, subsidiaries, shareholders, members, directors, officers, employees, agents, and parents, from and against any Claim, and any associated Losses to the extent caused by violation of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right due to Party-2 providing the Deliverables (except to the extent a Claim is caused by Party-1's internally created specifications). [QR-81]

(ii) Indemnification by Party-1. Upon receipt of notice from Party-2 requesting Party-1 to do so, Party-1 agrees to indemnify, defend, and hold harmless Party-2 and its affiliates, subsidiaries, shareholders, members, directors, officers, employees, agents, and parents, from and against any Claim, and any associated Losses to the extent caused by violation of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right to the extent caused by Party-1's internally created specifications or Party-1's use of the Deliverables. [QR-75]

(b) Indemnification Procedures. The term "indemnifying party" means the party assuming indemnification obligations under this Agreement, and the term "indemnified party" means all parties, including any third parties, which the indemnifying party agrees to indemnify under this Agreement.

(i) Notice. The indemnified party must give the indemnifying party prompt written notice of a Claim, provided, however, that failure of an indemnified party to give prompt written notice does not relieve the indemnifying party from its indemnification obligations under this Agreement except to the extent the defense is materially prejudiced by the failure. When the indemnifying party receives notice of a Claim from an indemnified party, the indemnifying party agrees, at its sole cost and expense, to assume the defense of the Claim by representatives chosen by the indemnifying party. The indemnified party may participate in the defense of the Claim and employ counsel at its own expense to assist in the defense of the Claim, subject to the indemnifying party retaining final authority and control over the conduct of the defense.

(ii) Conduct of Defense. The indemnifying party's defense attorneys must be reasonably experienced and qualified in the areas of litigation applicable to the defense. The indemnifying party has the right to assert any defenses, causes of action or counterclaims arising from the subject of the Claim available to the indemnified party and also has the right to settle the Claim, subject to the indemnified party's prior written consent to the extent the settlement affects the rights or obligations of the indemnified party. The indemnified party agrees to provide the indemnifying party with reasonable assistance, at the indemnifying party's expense, as may be reasonably requested by the indemnifying party in connection with any defense, including, without limitation, providing the indemnifying party with information, documents, records and reasonable access to the indemnified party as the indemnifying party reasonably deems necessary.

8. TERM AND TERMINATION.

(a) Term. The term of this Agreement (together with any renewals, the "Term") begins on the Effective Date and expires one (1) year [QR-24] later.  Immediately upon expiration this Agreement automatically renews on the same terms and conditions for additional successive periods of one (1) year on each anniversary of the Effective Date, unless either party gives the other party notice that the Agreement does not renew at least thirty (30) days before the end of the then applicable Term. [QR-18]

(b) Survival.  The following captioned sections survive any termination, expiration or non-renewal of this Agreement: "Disclaimer", "Indemnification", "Survival", "Publicity" and "General", as well as any other provisions expressly stating that they are perpetual or survive this Agreement.

(c) Termination for Insolvency. If either party is adjudged insolvent or bankrupt, or upon the institution of any proceedings by it seeking relief, reorganization or arrangement under any Laws relating to insolvency, or if an involuntary petition in bankruptcy is filed against a party and the petition is not discharged within sixty (60) days after filing, or upon any assignment for the benefit of a party's creditors, or upon the appointment of a receiver, liquidator or trustee of any of a party's assets, or upon the liquidation, dissolution or winding up of its business (each, an "Event of Bankruptcy"), then the party affected by any Event of Bankruptcy must immediately give notice of the Event of Bankruptcy to the other party, and the other party may terminate this Agreement by notice to the affected party.

(d) Termination for Breach.  If either party breaches any provision contained in this Agreement, and the breach is not cured within thirty (30) days after the breaching party receives notice of the breach from the non-breaching party, the non-breaching party may then deliver a second notice to the breaching party immediately terminating this Agreement.

[QR-17]


9. PUBLICITY.  Each party agrees to not make, publish or distribute (whether in print, electronically or otherwise) any public announcements, press releases, advertising, marketing materials or promotional materials regarding the execution or performance of this Agreement without the prior written consent of the other party.

10. GENERAL.  Entire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements regarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be amended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors.  The parties acknowledge that they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents, has the power or authority to bind or obligate another party.  Except if expressly stated, no third party is a beneficiary of this Agreement. The parties may not subcontract any of their obligations under this Agreement. [QR-63] Governing Law and Forum.  All claims regarding this Agreement are governed by and construed in accordance with the Laws of TEXTFIELD [QR-27], applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in TEXTFIELD [QR-28], regardless of the inconvenience of the forum, except that a party may seek temporary injunctive relief in any venue of its choosing.  The parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  Assignment.  This Agreement binds and inures to the benefit of the parties' successors and assigns.  Either party may assign, delegate, sublicense or otherwise transfer this Agreement, or any right or obligation under this Agreement, to a third party. [QR-46]  No Waivers, Cumulative Remedies.  A party's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly stated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive.  Severability.  If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions.  Notices.  All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery to the address set forth in this Agreement by each party.  Captions and Plural Terms.  All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement.  Terms defined in the singular have the same meaning in the plural and vice versa.



IN WITNESS WHEREOF, the parties execute this Agreement as of the Effective Date. Each person who signs this Agreement below represents that such person is fully authorized to sign this Agreement on behalf of the applicable party.

PARTY-1

By: __________________________________
Print Name: ___________________________
Title: ________________________________

PARTY-2

By: __________________________________
Print Name: ___________________________
Title: ________________________________