7. That all the terms of this agreement are herein set forth, and that no change in, or addition to, the terms, or provisions, hereof, shall hereafter be made, unless approved in writing by an executive officer of the Seller. 8. This instrument, after it shall have been signed by the Buyer, shall not be binding upon the Seller, until it shall have been approved, in writing, by one of its executive officers. 9. That this agreement, when effective, shall supersede any previous existing agreement between the parties, relating to the purchase and sale of calcium carbide for the Buyer's requirements as herein specified. IN WITNESS WHEREOF, each of the parties has hereunto set its hand, by its President thereunto duly authorized, and has caused its corporate seal to be affixed, attested by its Secretary, the day and year first above written. Agreement of manufacturer of cones to sell entire output to buyer.12 AGREEMENT, made January 5, 1923, between John Doe, Inc., a corporation, duly organized under the laws of the State of New York, and having its principal office at No. 111⁄2 Broadway, Borough of Manhattan, New York City (herein called the "Seller"). 12 Adapted from Silber v. Consolidated Wafer Co., Inc. (1920), 194 App. Div. 899, 184 N. Y. Supp. 950. and the Roe Co., Inc., a corporation, duly organized under the laws of the State of New York, and having its principal office at No. 371⁄2 Broadway, Borough of Manhattan, New York City (herein called the "Buyer"), WHEREIN IT IS MUTUALLY AGREED, AS FOLLOWS: 1. The Seller agrees to sell to the Buyer, and the Buyer agrees to purchase from the Seller, all cones manufactured by the Seller, in its factory, at No. 111⁄2 Broadway, Borough of Manhattan, New York City, during the period beginning this day and ending January 4, 1924, at the following prices: No. 21, packed 200 to the box, at 51¢ a box. 2. The Seller shall promptly deliver to the Buyer, at its place of business, all cones manufactured by it; and the Buyer shall pay therefor, on Saturday of each week, the prices specified above, minus a two (2%) per cent discount. 3. The Seller covenants not to sell, give away or deliver any cones, during the term of this agreement, to any person, or association, or to any corporation, other than the Buyer; and, in the event of a breach of this covenant by the Seller, the Buyer, in addition to any other remedy or remedies, which it may pursue, shall have the right to refuse to accept and pay for any cones thereafter manufactured by the Seller. IN WITNESS WHEREOF, each of the parties hereto has hereunto set its hand, by its President thereunto duly authorized, and has caused its corporate seal to be affixed, attested by its Secretary, the day and year first above written. No. 77. Agreement to manufacture and sell fuse and primer parts, with covenant by seller to devote his entire manufacturing facilities exclusively to performance of agreement, and covenant by buyer to reimburse seller for actual net expenditures in event of cancellation.1 13 & AGREEMENT, made January 5, 1923, between John Doe, residing at No. 111⁄2 Broadway, Borough of Manhattan, New York City (herein called the "Seller"), and Richard Roe, residing at No. 3712 Broadway, Borough of Manhattan, New York City (herein called the "Buyer"), WHEREIN IT IS MUTUALLY AGREED, AS FOLLOWS: 1. The Seller agrees to manufacture and sell and deliver to the Buyer, f.o.b., Bridgeport, Connecticut, and/or Boston, Massachusetts, at the option of the Seller, and the Buyer agrees to purchase and pay for, the shrapnel fuse parts necessary to make seven hundred thousand (700,000) complete sets, and the primer percussion parts necessary to make three million (3,000,000) complete sets, at the prices set forth in the specifications hereto annexed, and hereby made a part hereof. 2. All of the shrapnel fuse parts and all of the primer percussion parts shall be manufactured in accordance with the aforesaid specifications, and shall be subject to inspection by gauge and shall be free from defects in material and workmanship. 3. (a) All parts shall be subject to factory inspection, and the Buyer shall have the privilege of sending inspectors to the works of the Seller, during manufacturing, and the Seller shall furnish to such inspectors the fullest opportunity of observing all parts and proving all parts to gauge. (b) All gauges used for inspection and testing hereunder, including any that may be required by the Buyer, shall be furnished by the Seller, at his own expense, and shall remain the property of the Seller. (c) The Seller shall make good, or replace, all defects in material, or workmanship, in the said parts, which may be revealed by such factory inspection, or by firing tests made by the Buyer in 18 Adapted from Manning, Maxwell & Moore, Inc. v. American Can Co. (1918), 182 App. Div. 709, 169 N. Y. Supp. 713. the United States, without, however, thereby prejudicing the rights of the Buyer, under the provisions of clause "6" of this agreement. (d) Tender of any of said parts by the Buyer to the Seller for inspection, at the place of manufacture, shall constitute delivery, under this contract, subject to the right of the Buyer to inspect the same, within five (5) days after such delivery. 4. (a) The Seller shall deliver in approximately equal weekly quantities at least one million (1,000,000) complete sets of primer percussion parts, between January 1, 1923, and March 1, 1923, and shall complete delivery of the entire three million (3,000,000) complete sets of primer percussion parts, on or before August 1, 1923. (b) The Seller shall deliver to the Buyer the shrapnel fuse parts as rapidly as possible, and shall deliver all of the said fuse parts, on or before August 1, 1923. (c) If performance of any of the provisions of this contract by the Seller shall be delayed, or prevented, by strikes, fires, accidents, acts of God, or of the Government, or by the public enemy, or by any other cause beyond the control of the Seller, the dates of the deliveries specified in subdivisions "(a)" and "(b)" of this article, shall be extended for a corresponding length of time, not in excess of thirty (30) days, provided, however, that the Seller shall have given to the Buyer notice in writing thereof, within a reasonable time after the commencement of such disability. 5. If, on or before March 1, 1923 (or the later date to which the time for delivery may have been extended for one of the causes mentioned in the preceding article), the Seller shall have failed to deliver to the Buyer one million (1,000,000) complete sets of primer percussion parts, then the Buyer shall have the right to cancel and refuse to accept as many complete sets as will equal the difference between what the Seller may have delivered between January 1st and March 1st, 1923 (or the later date to which the time of delay may have been extended, as hereinbefore provided), and the number of one million (1,000,000) complete sets; and the Seller shall be under no liability for damages on account of any deliveries so cancelled, or refused. But such cancellation shall not affect the obligation of the Seller to deliver to the Buyer the balance of the complete sets of fuse parts covered by this contract, before August 1, 1923, or the later date to which the time for delivery may have been extended as aforesaid. 6. The Buyer shall have the right to cancel, or refuse to accept, any deliveries for which the Seller may be in arrears on August 1, 1923, or on the later date to which the time for delivery may have been extended by reason of one of the causes mentioned in article "4" of this agreement, and, in no event, shall the Buyer be bound to take any parts not delivered prior to August 1, 1923, or such later date, nor shall the Seller be under any liability for damages, on account of any deliveries so cancelled, or refused. But, in the event of such cancellation, the advance payments made to the Seller with respect to any parts, which may have been cancelled or refused, shall be returned by the Seller to the Buyer. 7. So long as the Buyer shall perform any stipulations of this contract on his part, the Seller agrees to confine the use of his fuse and primer making facilities exclusively to the performance of this contract; but, upon completion, by delivery or cancellation, of the requisite number of parts, the facilities used in the manufacture of such parts so completed may be used, or disposed of, in such manner as the Seller may determine. 8. (a) If by reason of an embargo, the fuse parts and primer percussion parts cannot be exported from the United States, or in the event of the present war terminating, before all deliveries under this contract shall have been completed, the Buyer, at its option, may terminate this agreement; but, in such event, the Buyer shall pay to the Seller the unpaid purchase price of any fuse, or primer, parts then actually manufactured and accepted, and, in addition thereto, a sum sufficient to cover the actual net expenditures and outstanding obligations of the Seller and its subsidiary companies made or incurred in respect of the portion of the orders undelivered at the time of such termination, including therein any net expenditures, or obligations, for plant, equipment and material or services of skilled, or other, employees. To the extent, if any, that advance payments made under this contract may exceed the amount due to the Seller, in case of such cancellation, such excess of advance payments shall be returned to the Buyer. (b) For the purpose of this contract, the "actual net expenditures" shall be defined to mean any sum, which the Seller shall have actually spent, and any obligation incurred after crediting the salable, or appraised, value of any material, or, in the case of other expenditures and obligations, such portion of the Seller's expenditures and obligations, in respect of this contract, as the unfilled portion of the orders at the time of cancellation bears to the total. |