Manufacturing Agreement - Template, Sample Form Online Pro · US-law

MANUFACTURING AGREEMENT

State of ________

This Manufacturing Agreement (this “Agreement”) is entered into and made effective as of ________ (the “Execution Date”) by and between ________ (the “Supplier”), a corporation organized and existing under the laws of the State of ________, having its principal place of business at the following address:

________

and ________ (the “Buyer”), a corporation organized and existing under the laws of the State of ________, having its principal place of business at the following address:

________

The Supplier and the Buyer may be referred to individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, the Supplier is engaged in the business of manufacturing goods and possesses the requisite skill, facilities, and personnel to manufacture the Goods (as defined below);

WHEREAS, the Buyer desires to engage the Supplier to manufacture and sell to the Buyer certain Goods upon the terms and conditions set forth herein;

WHEREAS, the Parties wish to set forth in writing the terms and conditions governing their relationship;

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Article 1 — GOODS

§ 1.1. The Supplier hereby agrees to manufacture, and the Buyer hereby agrees to purchase, the following goods (the “Goods”):

________

§ 1.2. The Goods shall be manufactured in accordance with the following specifications (the “Specifications”):

________

§ 1.3. The Supplier shall manufacture the Goods using the care, skill, and diligence practiced and accepted in the Supplier’s industry and in compliance with all applicable federal, state, and local laws and regulations. The Supplier shall procure quality materials for the production of the Goods. The Buyer agrees to be reasonably available for communications and inquiries and to provide any necessary documentation.

Article 2 — OWNERSHIP

§ 2.1. Title to and ownership of the Goods shall vest in the Buyer. The Supplier shall not sell, distribute, or otherwise transfer any of the Goods to any third party or consumer without the prior express written consent of the Buyer.

Article 3 — INTELLECTUAL PROPERTY

§ 3.1. The Supplier acknowledges and agrees that the Buyer retains all right, title, and interest in and to the Buyer’s intellectual property, including all patents, trademarks, service marks, trade dress, trade secrets, copyrights, and other intellectual property (collectively, the “Buyer IP”). The Buyer represents and warrants that, to its knowledge, the Buyer IP does not infringe upon or violate the intellectual property rights of any third party.

§ 3.2. Subject to the terms and conditions of this Agreement, the Buyer grants to the Supplier a limited, non-transferable, non-exclusive, revocable license, effective only during the term of this Agreement, to use the Buyer IP solely for the purpose of manufacturing the Goods.

§ 3.3. The Supplier shall not register or attempt to register any trademark, service mark, or trade dress that is identical or deceptively or confusingly similar to the Buyer IP.

§ 3.4. The license granted herein shall not be construed to limit the Buyer from any economic activity, including engaging other suppliers, distributors, or merchants. The license shall automatically expire upon the termination or expiration of this Agreement.

Article 4 — PRICE AND PAYMENT

§ 4.1. The per-unit purchase price for the Goods shall be $________ (________). The quantity of Goods ordered is ________ (________).

§ 4.2. The total purchase price for the Goods (the “Purchase Price”) is $________ (________).

§ 4.3. The Supplier shall deliver to the Buyer an invoice, which shall be paid in full within ________ days of the invoice date.

§ 4.4. The Purchase Price shall be payable in U.S. Dollars and may be made by the following method(s):

________

§ 4.5. The Purchase Price may include any shipping fees, product insurance, or other handling costs, which the Buyer hereby agrees to pay.

Article 5 — RISK OF LOSS

§ 5.1. Notwithstanding the Buyer’s obligation to pay shipping, handling, and product insurance as provided above, risk of loss for the Goods shall pass to the Buyer upon completion of delivery to the Buyer where the Goods are personally delivered, or upon the Buyer’s receipt of the Goods where the Supplier tenders the Goods to a common carrier, consistent with the applicable Uniform Commercial Code as enacted in the governing state.

Article 6 — LATE FEES

§ 6.1. If the Buyer fails to make payment when due, the Supplier may charge late interest at the rate of ________% per month on any outstanding amount, provided that such rate shall not exceed the maximum rate permitted by applicable law.

§ 6.2. If the Buyer fails to pay, the Supplier may treat such failure as a material breach and may cancel this Agreement or pursue any other available legal remedy, at the Supplier’s discretion.

Article 7 — DISCOUNT

§ 7.1. If the Buyer makes payment at least ________ days before payment is due, the Buyer shall receive a discount of ________% on the total amount due.

Article 8 — DELIVERY

§ 8.1. The Parties agree that time is of the essence in the Supplier’s performance under this Agreement. The Goods shall be delivered to ________ on or before ________ (the “Delivery Date”). If the Goods are not delivered by the Delivery Date, the Buyer may treat such failure as a material breach and may cancel this Agreement or pursue any other available legal remedy, at the Buyer’s discretion.

Article 9 — INSPECTION

§ 9.1. Following delivery, the Buyer shall have ________ days to inspect the Goods (the “Inspection Period”). If the Buyer determines that the Goods do not conform to the Specifications, the Buyer shall so notify the Supplier in writing within the Inspection Period. The Supplier shall have ________ days to cure. Nonconforming Goods shall be returned to the Supplier at the Supplier’s expense.

§ 9.2. If the Inspection Period expires without written notice from the Buyer, the Goods shall be deemed accepted.

Article 10 — CONFIDENTIALITY

§ 10.1. During the term of this Agreement and for a period of ________ thereafter, the Parties shall keep confidential all non-public information, documentation, trade secrets, and other proprietary information disclosed by either Party in connection with this Agreement (“Confidential Information”). Neither Party shall use or disclose any Confidential Information to any third party without the prior written consent of the disclosing Party, except as required by law. Confidential Information shall not include information that (a) is or becomes publicly available through no fault of the receiving Party; (b) was already known to the receiving Party prior to disclosure; or (c) is rightfully obtained from a third party without breach of any obligation of confidentiality. The obligations of this Article shall survive the termination or expiration of this Agreement.

Article 11 — INDEMNIFICATION

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Article 12 — LIMITATION OF LIABILITY

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Article 13 — WARRANTIES

§ 13.1. The Supplier warrants that it shall use reasonable care and skill, as commonly practiced in the Supplier’s industry, to produce the Goods in accordance with the Specifications and shall maintain adequate business insurance to cover the cost of the Goods at all times.

§ 13.2. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUPPLIER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Article 14 — INSURANCE

§ 14.1. The Supplier shall maintain a comprehensive insurance policy in an amount of at least $________ (________) and shall, upon request, furnish the Buyer with a certificate evidencing such coverage.

Article 15 — TERM & TERMINATION

§ 15.1. This Agreement shall commence on the Execution Date and shall continue until ________, after which the Parties’ relationship shall automatically terminate unless renewed in writing.

§ 15.2. Either Party may terminate this Agreement for material breach, which shall include:

1) the Supplier’s failure to deliver;

2) the Buyer’s failure to pay;

3) the Supplier’s failure to cure any defect in the Goods; or

4) the insolvency or bankruptcy of either Party.

§ 15.3. If either Party breaches this Agreement, the other Party may terminate upon ten (10) days’ written notice. Such notice shall set forth the nature of the breach and afford the breaching Party an opportunity to cure within an additional ten (10) days. If the breach is not cured within such time, this Agreement shall terminate; if cured, this Agreement shall continue in full force and effect.

Article 16 — REMEDIES AT LAW

§ 16.1. If this Agreement is canceled due to a material breach by a Party, the non-breaching Party may pursue any and all remedies available at law and in equity.

Article 17 — GENERAL PROVISIONS

A) GOVERNING LAW & VENUE: This Agreement shall be governed by and construed in accordance with the laws of the State of ________, without regard to its conflict-of-laws principles, and applicable federal law. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in ________ County, State of ________. This provision is mandatory and not permissive.

B) LANGUAGE: All communications and notices given pursuant to this Agreement shall be in the English language.

C) ASSIGNMENT: Neither this Agreement nor any rights granted hereunder may be assigned, sold, leased, or otherwise transferred in whole or in part by either Party without the prior written consent of the other Party.

D) AMENDMENTS: This Agreement may be amended only by a writing signed by both Parties.

E) NO WAIVER: No term of this Agreement shall be deemed waived by any act or acquiescence of either Party. Only a subsequent written agreement may effect a waiver. No waiver of any term shall constitute a waiver of any other term or of the same term on a future occasion. Failure to enforce any term shall not constitute a waiver of such term or any other term.

F) SEVERABILITY: If any provision of this Agreement is held unenforceable, this Agreement shall be deemed amended to the minimum extent necessary to render such provision, and the remainder of the Agreement, valid and enforceable. If a court declines to so amend, the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the remaining provisions, which shall be enforced as if the offending provision had not been included.

G) PUBLIC ANNOUNCEMENT: Neither Party shall make any public announcement or disclosure regarding the existence or terms of this Agreement without the prior written approval of the other Party.

H) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous understandings, whether written or oral.

I) HEADINGS: Headings are for convenience only and shall not affect the interpretation of this Agreement.

J) COUNTERPARTS & ELECTRONIC SIGNATURES: This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute a single instrument. Electronic signatures shall be deemed valid and binding pursuant to the federal Electronic Signatures in Global and National Commerce Act (E-SIGN) and applicable state Uniform Electronic Transactions Act.

K) FORCE MAJEURE: Neither Party shall be liable for any failure or delay in performance due to causes beyond its reasonable control, including acts of God, acts of civil or military authority, riots, embargoes, natural disasters, epidemics, and other unforeseen circumstances.

L) NOTICES (ELECTRONIC COMMUNICATIONS PERMITTED): i) Any notice under this Agreement shall be in writing and sent by first-class mail, airmail, or email to the address of the relevant Party set out at the head of this Agreement, or to the email address set out below, or to such other address as a Party may notify the other in accordance with this clause. The relevant contact information for the Parties is as follows:

Supplier:

________

Buyer:

________

ii) Notices sent as above shall be deemed received three (3) working days after posting (inland first-class mail), seven (7) working days after posting (airmail), or the next working day after sending (email).

iii) In proving the giving of a notice, it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable electronic transmission was addressed and dispatched and dispatch confirmed or acknowledged, as the case may be.

EXECUTION

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Execution Date.

SUPPLIER

Name: ________

Signature: ________________________

Representative Name: ________

Representative Title: ________

Date: ________

BUYER

Name: ________

Signature: ________________________

Representative Name: ________

Representative Title: ________

Date: ________