AGREEMENT

THIS AGREEMENT (this “Agreement”) is made as of this __ day of __________, 200_, (the “Effective Date”) by and between _________________. ("Purchaser") and _________________ ("Seller").

W I T N E S S E T H:

WHEREAS, Purchaser wishes to purchase  ________________  from Seller; and

WHEREAS, Seller is willing to sell such _____________ to Purchaser;

NOW, THEREFORE, in consideration of the covenants, conditions and payments hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Price, Quantity, Shipping Instructions, and Payment Terms.  Seller will sell to Purchaser __ (the “Goods”) [RFP ______, dated ____], pursuant to the terms of this Agreement and the price, payment, delivery, and other terms set forth in the Appendix attached hereto and made a part hereof (the “Appendix”). The Goods will be shipped ___, in accordance with the details specified in the Appendix.  Nothing contained in this Agreement shall be construed as a commitment by Purchaser to purchase any Goods, or minimum quantity thereof, from Seller.

2. Term.  The term of this Agreement shall begin on the Effective Date, and shall end on ___________ (the “Term”) unless earlier terminated in accordance with this Agreement.

3. Title and Risk of Loss.  Title to and risk of loss of all Goods furnished hereunder shall remain with Seller until receipt, inspection, and acceptance of the Goods by Purchaser.  Seller warrants that it has clear title to the Goods and that there is no outstanding hostile claim against or security interest in the Goods held by a third party.

4. Non-Disclosure. All information, including but not limited to, financial statements, product information, manufacturing capabilities, passwords, documents, data and business records, which is disclosed to Purchaser by Seller or which Purchaser observes or comes into contact with during the Term of this Agreement, whether generated by Seller or contractor of Seller, shall be deemed "Confidential Information" and the sole and exclusive property of Seller.  Purchaser shall take all reasonable measures to maintain the confidentiality of said Confidential Information by its employees, agents, representatives and couriers.  Purchaser shall not use the Confidential Information for any purposes other than to perform its obligations hereunder and shall not disclose any Confidential Information to any third party without the prior written consent of Seller. Purchaser acknowledges that all right, title, and interest in and to said Confidential Information, including the right to produce, extract, or exhibit said Confidential Information to any third party and any intellectual property rights relating to said Confidential Information, exist in Seller only. Purchaser shall return such Confidential Information promptly upon the expiration or termination of this Agreement. 

5. Warranties.  Notwithstanding any limitations to the contrary in Seller’s invoice and/or sales documentation, Seller expressly warrants that:

(a) all Goods will conform to [the purchaser requirements] and any other applicable plans, drawings, specifications or samples furnished by Purchaser, or furnished by Seller and approved and accepted by Purchaser, it being understood that such plans, drawings, specifications or samples, are incorporated by reference and made a part hereof;

(b) all Goods will be of merchantable quality, fit and sufficient for the purpose ordered and communicated to Seller, and will be free from latent or patent defects in material and workmanship;

(c) all services will be performed in a workmanlike, efficient and safe manner and will conform to standards generally accepted in the trade or industry involved; 

(d) all Goods are and will be free from any security interest, lien, or encumbrance;

6. Remedies.

(a) If any of the Goods are found within the warranty period provided in the Appendix to be defective in material or workmanship or otherwise not in conformity with the requirements of this Agreement, Purchaser, in addition to any other rights which it may have under warranties or otherwise, shall have the right, at its option

(i) to revoke acceptance, reject and return such Goods at Seller's expense, in which event conforming Goods shall be provided by Seller at its cost within ten (    ) days of such revocation and such replacement Goods shall carry a warranty equivalent to that set forth in the Appendix running from the date of Purchaser’s receipt of such replacement Goods; or

(ii) notify Seller of noncompliance, defects, or deficiencies in the Goods, which Seller shall repair and/or correct at Seller’s expense within ten (    ) days of such notice and such repairs shall carry a warranty equivalent to that set forth in the Appendix running from the date of Purchaser’s acceptance of such repaired Goods; or

(iii) upon notice to Seller, to take such actions as may be required to cure all defects and/or bring the Goods into conformity with all the requirements of this Agreement, in which event all costs and expenses thereby incurred by Purchaser shall be for Seller's account,. Efforts by Purchaser to correct defects or deficiencies shall not preclude Purchaser from revoking acceptance and rejecting the Goods under this Section or applicable law where Purchaser’s commercially reasonable attempts to correct the defective conditions prove to be unsuccessful.   

(b) In the event that Purchaser invokes the remedy set forth in Section 6(a)(ii), Purchaser shall cooperate in providing reasonable access to the Goods, data and technical assistance (if available) as required to develop and schedule repairs and related testing of modifications or repairs, if necessary, to assist Seller in its correction of the defects or deficiencies in the Goods. Seller will schedule repairs to minimize disruption, loss and inconvenience to Purchaser, or if required, Seller shall, at its expense, arrange for delivery of the Goods to Seller’s plant for repair or modification.

7. Insurance. 

(a) Liability Insurance. Prior to and during any entry by Seller onto the premises of Purchaser, Seller shall purchase and maintain the following insurance coverages:  (i) Commercial General Liability Insurance (“CGL”), with contractual liability covering obligations assumed in this Agreement (including any agreements entered into between the parties pursuant hereto) by Seller.

(b) Policy Requirements.  All insurance required hereunder shall be effected by valid and enforceable policies issued by insurer(s) of financial responsibility and authorized to do business in all necessary states. Seller’s liability insurance policies shall name Purchaser.  Prior to any entry upon Purchaser’s property pursuant to this Agreement and upon Purchaser’s request thereafter, Seller shall provide or shall cause its insurer to provide Purchaser with complete certified copies of the liability insurance policies in effect for the Term of this Agreement.

8. Intellectual Property.  Seller warrants that: (1) that the goods or services purchased hereunder as well as the production, sale and use thereof, do not and will not infringe any third party patents, trademarks or copyrights or other intellectual property; (2) that Seller will at its own expense defend any suit that may arise In with respect thereto. In case the Goods or a part thereof are held to be infringing, or the use of the Goods or a part thereof is enjoined, Seller shall, at Seller’s expense, either procure for Purchaser the rights to continue using the Goods, replace the Goods or a part thereof with non-infringing Goods, modify the Goods so that they are non-infringing, or retake to Goods and refund the purchase price and other costs associated with delivery or return of the Goods.

9. Waiver.  Waiver by the Purchaser of Seller’s breach of any term or condition of this Agreement shall not be construed as a waiver of any other term or condition or a future waiver of the waived term or condition.

10. Cancellation.  

(a) Except as provided in this Agreement, Purchaser may cancel this Agreement without penalty or payment of cancellation charges upon (       ) days prior written notice to Seller if Seller fails to make delivery as specified or within a reasonable time if no time is specified, or fails to comply with any other provisions of this Agreement, except if excused under Section 12.

(b) Cancellation hereunder shall discharge all executory obligations of the parties but shall not affect any right or obligation based on a prior breach or performance of this Agreement nor affect any right or obligation which is intended to survive such cancellation.

11. Labor Matters.  If Seller interferes with Purchaser’s operations because of a strike, picketing or a work stoppage by Seller’s or its subcontractor’s employees or a dispute between a union and the Seller or its subcontractor, Purchaser, after twenty-four (24) hour oral or written notice to the Seller, may either employ a substitute or terminate this Agreement.  Further, Seller shall be liable for and promptly pay to Purchaser, any additional expense incurred by Purchaser in employing such substitute or terminating the Agreement.

12. Notice of Delay. Seller agrees to notify Purchaser in writing promptly of any factor, occurrence or event coming to its attention that may affect Seller's ability to meet it obligations under this Agreement.  Examples of where such notice shall be given, shall include, but not be limited to any loss, reassignment or unavailability of key employees, a force majeure event, threat of strike, or major equipment failure, changed requirements, or third party delays.  

13. Force Majeure.  A party shall be excused from performing its contractual obligations if it is prevented or delayed in such performance by conditions that constitute force majeure, such as acts of God, acts of terrorism, acts of the public enemy, labor disturbances, authority of law, fire or explosion, war or warlike act, insurrection, a party’s reasonable response (by way of example and not limitation, such as taking evasive action or canceling meetings or events) to a Governmental warning affecting local or national security, or any like causes beyond its control. A party wishing to take advantage of the relief provided in this Section must as soon as practical advise the other party in writing of the existence of the force majeure condition and the estimated time of its duration.  The parties shall cooperate to ascertain the facts and the effect of the delay on, and make appropriate adjustments where necessary.

14. Prohibition on Improper Influences.  Seller represents that it has not and will not provide any gift, rebate, or other compensation - excluding nominal business entertainment or gifts - to any official, employee, representative, or agent of Purchaser or any of its affiliated or subsidiary companies.  Seller further represents that none of its officials or employees are known to be employed by Purchaser or any of its affiliated or subsidiary companies.  Seller agrees to promptly notify Purchaser if Seller becomes aware of information requiring modifications to either of the foregoing representations.

15. Insolvency.  In the event Seller shall file a voluntary petition in bankruptcy, or a petition in bankruptcy shall be filed against Seller, or Seller shall make an assignment for the benefit of its creditors, or Seller shall apply for relief in any form as a debtor under any statute of the United States or laws or regulations of any other governmental authority, or any other proceeding under any statute of the United States or laws or regulations of any other governmental authority seeking the relief or readjustment of Seller's indebtedness shall be commenced, then Purchaser shall have the right to immediately cancel this Agreement or so much of it as has not been completed, without penalty or payment of cancellation charges.

16. Severability.  Any provision of this Agreement which is determined to be invalid or unenforceable will be ineffective to the extent of such determination without invalidating the remaining provisions of this Agreement.

17. Complete Agreement.  This Agreement and each Appendix attached hereto constitute the complete agreement of the parties relating to the matters specified in this Agreement and supersede all prior and contemporaneous representations or agreements with respect to such matters.  No oral modifications or waiver of any of the provisions of this Agreement shall be binding on either party.

18. Laws.   Parties warrant and agree that it has complied and will comply with all applicable laws. One Party shall indemnify the other Party and save it harmless from any claims, losses, damages, costs and legal expenses (including but not limited to attorneys’ fees), resulting from its own failure to comply with the foregoing.

19. Arbitration.  Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled through binding arbitration in accordance with the Provisional Rules of Procedure, and judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Exclusive venue for such arbitration shall be the Arbitration Commission of the China Council.

20. Independent Contractor.  Seller acknowledges that it is an independent contractor and that Purchaser has no control over or ownership interest in any of the Seller's facilities that will be utilized in supplying Goods to Purchaser hereunder.  

21. Consortium Purchasing.  [Include this section only if applicable.] Seller acknowledges that it benefits from Purchaser obtaining greater quantities of goods and/or services from Seller and has reflected that by granting Purchaser a discount for volume purchases as shown in the price schedule in the Appendix attached hereto.  To encourage Purchaser to have third parties purchase goods and/or services from Seller, Seller agrees to allow Purchaser to aggregate its purchases with those of any such third parties, so that Purchaser and such third parties each receive benefit of the volume discounts set forth in the Appendix attached hereto. Purchaser shall forward the name, address, telephone number and the name of the representative of any such third parties, and unless Seller objects in writing within fifteen (15) days thereafter, Seller shall provide the named third party with the goods and/or services upon the same terms and conditions as are contained in this Agreement, and shall aggregate Purchaser’s and all such third parties’ volume for purpose of determining the prices and discounts of the goods and/or services provided to each of the parties.  Notwithstanding the foregoing, Seller agrees that Purchaser and such third parties are independent entities and that with the exception of aggregating purchase volumes (a) Seller shall deal with each such party independently, and (b) Purchaser is not a guarantor or surety for any such third parties and is not responsible in any way for any actions or in-actions of such third parties, including, without limitation, any disputes for non-payment which may arise between Seller and any such third party.

22. Notices.  All notices required by this Agreement or otherwise shall be in writing, sent to the attention of the following:

For Purchaser: _____________________________

_____________________________

_____________________________

_____________________________

with a copy to:

_____________________________

_____________________________

_____________________________

For Seller: _____________________________

_____________________________

_____________________________

or at such other address as a party may indicate in writing as herein provided.  Notices shall be deemed given on the earliest of the date received,  (   ) business days after delivery to a nationally recognized overnight courier, (   ) business days after proper mailing, or the date that receipt of such notice is rejected or refused.  Notwithstanding the foregoing, Seller’s invoices may be sent by ordinary mail.  

23. Amendments.  This Agreement cannot be amended or modified except in writing, signed by or on behalf of the persons to be bound thereby.

24. Survival.  Notwithstanding the termination or expiration of this Agreement, and except as otherwise stated in this Agreement, those obligations contained herein that by their terms or nature are intended to survive such termination or expiration shall do so including, as an example and without limitation, Sections 4, 18, 19, 22, and 24, and shall be binding upon the parties and their legal representatives, heirs, successors and assigns.

25. Priority of Documents.  In the event of any conflict between any documents exchanged between the parties, the following order of priority shall control: (i) this Agreement; (ii) any Appendix; (iii) any other document incorporated herein by reference; (iv) Purchaser’s purchase order; and (v) Seller’s invoice.

[Signature Page Follows]

IN WITNESS WHEREOF, each party has caused this Agreement to be properly executed on its behalf as of the date first written above.

SELLER:

[Company]

By:

Name:

Title:

PURCHASER:

CSX TRANSPORTATION, INC.

By:

Name:

Title:

APPENDIX to Agreement between _________________ and ___________________, dated _________________.

PRICE, PAYMENT and DELIVERY TERMS

1. Delivery Terms:

Agreement prices for the Goods are FOB:                                  .                             Purchasing & Materials Statement of Policy and Procedure, No.           , as amended from time to time, is made a part of this agreement.  Suppliers who do not comply with these routing instructions will be solely responsible for the cost of using an unapproved carrier.

Orders will be shipped by Seller within ____ days after receipt of the purchase order.

2. Payment Terms:

Purchaser will receive a    % discount on Seller’s invoice if payment is remitted to Seller within (     ) days of receipt of Seller’s invoice, otherwise Purchaser will pay the net amount within (     ) days of receipt of Seller’s invoice.

3. Warranty:

Seller shall warrant the Goods in accordance with this Agreement for  (     ) days from the date of final acceptance by Purchaser, or if the Goods are manufactured by a third-party then Seller shall ensure that the third-party’s warranty of the Goods is transferred to Purchaser.

4.          Quality Certification:

Seller shall maintain a quality system at the manufacturing facility during the Term of the Agreement. The quality system is to be industry recognized and current by either NAPM or ISO Quality Certification.

5.          Price:  

[specify prices] These prices are fixed through the Term of the Agreement, except to the extent that Seller is required to lower prices to Purchaser pursuant to Section 1 of the Agreement.

6. Volume Discounts: [insert if applicable]