Last updated: Aug 24, 2021
This Agreement is entered into by and between INMARK, INC LLC, a Delaware Corporation (INMARK) and the Organization committing to this agreement. (“Customer”). This Agreement shall be effective on the first date on which it has been signed by both parties.
INMARK agrees to maintain certain inventory levels of products at various INMARK’s facilities pursuant to the terms and conditions of this Agreement. INMARK and the Customer agree as follows:
This Master Supply Agreement (“Agreement”) apply to INMARK’s sale of products, services and/or support pursuant to an order for the same issued by Customer (the “Customer Order”). This Agreement as well as any plans, specifications or other documents (“Specifications”) attached or incorporated by reference into the Customer Order shall constitute the entire agreement between INMARK and Customer. Except as expressly agreed to in writing by INMARK, INMARK hereby objects to and rejects any conflicting or additional terms issued after issuance of the Customer Order.
Customer is deemed to have accepted the terms of this Agreement upon Customer’s signature or commencement of performance hereunder. Handwritten changes on this document shall be ignored and have no legal effect unless initialed by authorized representatives of both parties. The following order of precedence shall apply: (1) this Master Service Agreement, (2) the Customer Order and its attachments and exhibits (if any).
THIS AGREEMENT SHALL APPLY AND GOVERN ALL ACTIVITY UNDER THE CUSTOMER SPECIFIC PRIVATE ONLINE PORTALS (PORTALS) PROVIDED BY INMARK, UNLESS THE CUSTOMER HAS A SEPARATE APPLICABLE PURCHASE AGREEMENT IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN. NOTHING IN THS AGREEMENT PREVENTS THE CUSTOMER FROM NEGOTIATING SEPARATE PURCHASE AGREEMENTS WITH INMARK.
As used herein, “Customer” includes the Customer’s employees, officers, directors, agents, and subcontractors. “INMARK” includes INMARK’s affiliates, and its and their employees, officers, directors, agents, and contractors.
This Agreement applies to all goods purchased by the Customer from INMARK which are of the product types (SKU’s) (the “Stocked Products”) set forth on the INMARK owned Private Online Portals (Portals). Stocked Products may include products designed and/or configured to Customer specifications (Customer Specific Product). The prices for the Stocked Products are set forth on the following websites: North America (http://us-pops.inmarkinc.com); Europe (http://nl-pops.inmarkinc.com) and Asia (http://sg-pops.inmarkinc.com). Products and prices offered through these Portals may be revised from time to time without written agreement unless otherwise specified in a separate agreement. The Portals and the services provided are subject to change without notice for the purposes of feature additions, user enhancements, and quality updates. If customizations or features are requested by a customer and accepted by Inmark, any costs associated with customizations or modifications to the portals requested by the Customer may be borne by the Customer and performed under a separate agreement.
One or more blanket purchase orders (each, a “Blanket Purchase Order”) may be issued by the Customer for Stocked Products associated with each Portal. Upon the issuance of a Blanket Purchase Order, the Customer will become obligated to purchase and INMARK will become obligated to sell the types of Stocked Products listed on the associated Portals, The Customer agrees that quantities ordered through the Portals will be treated as releases against the Blanket Purchase Order and when such Stocked Products are shipped to the Customer or Customer specified representative in the quantities specified in Portal order releases (“Releases”) issued by the Customer from time to time. If Releases utilizing the Customer Specific Product quantities of the Stocked Products are not received within 12 months of the original Blanket Purchase Order date, the Customer shall be obligated, and the INMARK is authorized to invoice the Customer, to accept the remaining unutilized portion of each Customer Specific Product SKU included on the portals. New Blanket Purchase Orders will be deemed incorporated into the Portals upon the INMARK’s acknowledgement of the new Blanket Purchase Orders.
Blanket Purchase Orders and Releases for Stocked Products issued by the Customer to INMARK may be submitted by the Customer in writing or electronically. INMARK shall promptly acknowledge receipt of each Blanket Purchase Order and Releases will be electronically acknowledged to individuals ordering through the Portals. The customer shall be responsible for the requests and submissions of each of its users, and the users shall be responsible for the requests made on their own named accounts.
Customers wishing to have a level of stock maintained on hand by Inmark must provide the request in writing, without a prior request to maintain stock on hand for the customer, stock levels will not be guaranteed by Inmark, and stock outages may occur. Inmark will maintain no direct responsibility for stocking outages should the Customer not have a prior agreement in place with Inmark.
As requested by the INMARK not more than four times per calendar year, the Customer will provide the INMARK with a rolling twelve month forecast of the estimated usage of the Stocked Products. It is understood that such forecast is for planning purposes only and does not represent a release of the Blanket Purchase Order(s). INMARK will utilize historical usage (if any) and the provided forecast to maintain stock to satisfy the Customer’s requirements (the “Stocking Level”). The Customer may change the Stocking Level for any one or more types of Stocked Products now or hereafter listed on the Portals and with respect to Customer Specific Products, upon not less than ninety (90) days prior written notice to and approval by INMARK.
INMARK at its sole expense shall maintain the Stocked Products at its facilities at its applicable Stocking Levels. Customer acknowledges that certain Stocked Products may have extended production lead times and that changes in demand must be communicated to INMARK upon not less than ninety (90) days prior written notice. Customer further acknowledges that failure to provide the aforementioned notice may result in an out of stock situation. INMARK will not bear any costs incurred by Customer as a result of usage in excess of the greater of
historical usage over the previous six (6) months or
the Customer forecast.
The term of this Agreement shall commence on the Effective Date and shall continue until terminated as follows:
Either party may terminate this Agreement upon written notice to the other party in the event the other party breaches or fails to perform any of its duties or obligations hereunder, and such breach or failure continues for a period of thirty (30) days uncured after written notice is given to the other party specifying in reasonable detail the nature of the breach or failure and requesting it to cure its breach or failure;
INMARK may terminate this Agreement at any time and for any reason upon not less than ninety (90) days prior written notice to Customer; and
Customer may terminate this Agreement at any time and for any reason upon not less than ninety (90) days prior written notice to the INMARK.
No termination of this Agreement shall affect any obligations of the parties to purchase and sell Stocked Products as provided in this Agreement up to the date of termination, relieve either party from any liability or obligation which at the time of such termination has already accrued to the other party or which thereafter may accrue in respect of any act or omission occurring prior to such termination, or affect the survival of any right, duty or obligation of either party which is expressly stated elsewhere in this Agreement to survive its termination.
For purposes of this Section, the following definitions shall apply:
“Covered Termination” means the termination of this Agreement
“Obsolete Customer Specific Products” means the Customer Specific Products specified in a Notice of Obsolescence.
“Notice of Obsolescence” means a written notice from the Customer that one or more Customer Specific Products are obsolete due to change in design or other circumstances in the Customer’s discretion.
Except for the obligations of the Customer to purchase Stocked Products as provided in Section 1, this Section sets forth the Customer’s obligation with respect to the purchase of Customer Specific Products, materials and work-in-process to produce Customer Specific Products, and purchase orders issued or other commitments made by INMARK to its vendors with respect to Customer Specific Products. This Section shall apply only when Customer Specific Products become Obsolete Customer Specific Products or upon a Covered Termination.
Upon any Customer Specific Product becoming an Obsolete Customer Specific Product, or upon a Covered Termination, the Customer shall have the right but not the obligation to require INMARK to produce Obsolete Specific Products using some or all materials and work-in-process on hand as of the date of the Notice of Obsolescence, or to produce Customer Specific Products using some or all materials and work-in-process on hand as of the date of the Covered Termination, as applicable, by written notice from the Customer given within thirty (30) days following the date of the Notice of Obsolescence or Covered Termination, as applicable. In such event the Customer shall purchase and pay for such completed Customer Specific Products at the prices then in effect.
Within ninety (90) days following the date of the Notice of Obsolescence or Covered
Termination, as applicable:
The Customer will purchase from INMARK all of its inventory of finished Obsolete Customer Specific Products existing on the date of the Notice of Obsolescence or all of its inventory of finished Customer Specific Products on hand existing on the date of the Covered Termination, as applicable, and not otherwise purchased in accordance with the above provisions (including those that have been produced by INMARK upon the Customer’s request from materials and work-in-process as set forth above). The prices for such Customer Specific Products shall equal the prices for such Customer Specific Products then in effect.
To the extent that the Customer does not request INMARK to use the materials and work-in-process to produce finished Obsolete Customer Specific Products (following a Notice of Obsolescence) or Customer Specific Products (following a Covered Termination), the Customer shall purchase and pay INMARK for
such materials to the extent not saleable to other customers or usable by INMARK in producing goods sold to other customers, at a selling price equal to the Customer’s prices included herein, and
such work-in-process (including finished product in transit) at a price equal to Supplier’s reasonable costs of material, direct labor and manufacturing overhead incurred in producing such work-in-process.
With respect to any purchase orders issued or other commitments made by INMARK to its vendors existing as of the date of the notice of Notice of Obsolescence or date of the Covered Termination, as applicable, that
cannot be cancelled by INMARK without penalty,
are for materials ordered for the purpose producing the Obsolete Customer Specific Products as applicable, and
are not saleable to other customers or usable by INMARK in producing goods for sale to other customers, the Customer will, at its option,
authorize INMARK to acquire and use such materials to produce finished Obsolete Stocked Products or Stocked Products, as applicable, which shall be purchased by the Customer in accordance with Section 7(d)(i)(1) above,
authorize INMARK to acquire such materials and Customer pay for them in accordance with Section 7(d)(i)(2) above, or
authorize INMARK to cancel such orders and reimburse INMARK for any penalty or loss incurred by INMARK in doing so.
The Customer’s obligation under the foregoing provisions of this Section 7(d) shall apply only to the extent that INMARK’s actual levels of finished Obsolete Customer Specific Products existing as of the date of the notice of Notice of Obsolescence or actual levels of finished Customer Specific Products existing as of the date of the Covered Termination, as applicable, and the work in process (including finished product in transit) and materials to be used to produce such Stocked Products (exclusive of such Customer Specific Products which the Customer is required to purchase in accordance with Section 2 of this Agreement), are consistent with levels reasonably maintained by INMARK to meet any stocking levels and lead times provided for in this Agreement, then consistent with levels reasonably maintained to meet the greater of i) the Customer’s orders for such Customer Specific Products based on the Customer’s ordering history during the preceding six (6) month or ii) forecasted demand in accordance with Section 4(a) above.
As used in the Agreement, "Confidential Information" shall mean and include any and all of the following: information, know-how or data, whether technical or non-technical, which is in any way, heretofore, herewith or hereafter, disclosed by or on behalf of either party or any affiliate to the other party by or In connection with this Agreement or in connection with proposals or negotiations for this Agreement; including without limitation: chemical formulae, constituents, ingredients, manufacturing processes, costs, customer identities, and quantities associated in any way with this Agreement.
Except as provided below or as otherwise agreed to in writing by both parties, each party shall keep confidential and prevent the disclosure of Confidential Information, except to such of its employees or agents who need such Confidential Information in order to enable wither party to properly perform under this Agreement. Both parties shall limit the dissemination of the Confidential Information to those of its employees and agents requiring the same for purposes of performance under this Agreement, and shall advise all such persons to whom Confidential information is disclosed of their obligation under this Agreement to treat the information as confidential to the extent provided in this Agreement. Both parties shall be responsible for the breach of this Agreement by their respective employees and agents.
Notwithstanding the above, neither party's obligation under this secrecy provision shall apply to Confidential Information when, after, and to the extent that the Confidential Information either:
is known to the public through no fault or participation of the non disclosing party or its employees or agents; or
was known to the non-disclosing party prior to the first disclosure to the non-disclosing party by or on behalf of the other party and the non disclosing party can establish such fact by reasonably convincing evidence; or
is received by the non-disclosing party in good faith from a third party, which is not subject to a secrecy obligation with respect to such information.
INMARK warrants, represents and covenants that it will perform this Agreement in compliance with all applicable laws, rules, and regulations (including, without limitation, the Equality Act 2010, and/or any amendments existing thereunder, or equivalent local law or regulation), and in conformance with the professional standards applicable in INMARK’s industry,
INAMARK’s personnel shall be authorized to work and will not act in violation of the Immigration Reform and Control Act of 1986 and/or any amendments and regulations existing thereunder; or equivalent local law or regulation; or the immigration laws of any country in which this Agreement is to be performed,
this Agreement will be performed in a professional, careful and workmanlike manner and INMARK will be adequately skilled, trained and experienced in the tasks to be performed by it, INMARK has all licenses, right, title and interest necessary to enter into and perform its obligations under this Agreement,
neither this Agreement nor its performance by INMARK will infringe any third party’s intellectual property or other right or violate any other agreement or obligation of INMARK,
no payments or transfers of value shall be made which have the purpose or effect of public or commercial bribery, or acceptance or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business; fees to be paid pursuant to a Customer Order represent fair compensation for the Services.
In no event shall any payment be made by INMARK or its employees, directors, officers, affiliates, subcontractors, and agents to any undisclosed third party. Throughout the term of this Agreement, both parties agree to comply with all anticorruption laws, rules, regulations and decrees applicable to the respective party (collectively, “Legislation”), including the United States Foreign Corrupt Practices Act, as amended (the “FCPA”). It is each party’s responsibility to be familiar with, and comply with, the provisions of the applicable Legislation.