In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.

Input: Consider Input: Exhibit 10.8 Affiliate Program / Premium Affiliate Management General Terms and Conditions

The following General Terms and Conditions are intended for (i) Web site owners (hereafter, Affiliates) who wish to participate as Affiliates in the Affiliate Program provided by element 5 (governed by II. and IV. in these General Terms and Conditions) on the basis of these General Terms and Conditions and also for (ii) Software Publishers who distribute their software products as downloads using the services of element 5 GmbH, Vogelsanger Strasse 78, 50823 Cologne, Germany and its subsidiaries (together hereafter, element 5) and who wish to make use of the additional service provided by element 5 (hereafter, Affiliate Management, governed under III. and IV. in these General Terms and Conditions) for integration of the Affiliate Program provided by element 5.

I. Object of the Affiliate Program/ Affiliate Management Program for Software Publishers

The object of the Affiliate Program provided by element 5 (hereafter, Program) is to publish electronic advertisements on the Web site of the Affiliate for selected software products offered by element 5 Software Publishers. Instead of fixed compensation, the Affiliate receives result- dependent Advertising Cost Compensation (also known in the element 5 Control Panel as Commission) in exchange for publishing the advertisements. The Advertising Cost Compensation depends on the actual sales generated by end users referred via the electronic advertisement (the Affiliate's link).

Within the context of sales processed from this Program, element 5 acts (to the end user) as a service provider for Software Publisher and handles the sales process by proxy of Software Publisher in accordance with underlying share-it! Developer Agreement. element 5 receives an additional service fee from the participating Publishers for this Affiliate Management.

Under the terms of this Affiliate Management, Software Publisher's Control Panel shall mean the password protected secure interface on element 5's Web servers that allows the Software Publisher to gain access to Sales data and End User data through a secure online connection and change Software Publisher related settings, e.g. the commission of the Affiliate and activation and deactivation of the Affiliate.

Affiliate's Control Panel shall mean the password protected secure interface on element 5's Web servers that allows the Affiliate to (i) gain access to referred sales through a secure online connection and (ii) change Affiliate related settings, e.g. input or alteration of personal data, definition of default style within the context of the given technical limitations, and requests for new partnerships with Software Publishers or termination of existing partnerships.

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





II. Affiliate Program

§ 1 Affiliate Participation

Participation of an individual Affiliate in the Program is dependent on activation by the Software Publisher. Once the Affiliate has registered, element 5 will send an e-mail to Software Publisher with a request to activate the Affiliate. Once the Affiliate is activated by the Software Publisher, the Affiliate is considered to be a participant in this program and is bound by these General Terms and Conditions.

§ 2 Products under the Agreement

(1) The Products under the Agreement are software products designated by the respective Software Publisher for this purpose and which can be selected by the Affiliate from a product catalog in the Affiliate Control Panel. (2) Following initial activation of a product under the agreement, the Affiliate has the opportunity to choose further software products (including those from other Software Publishers), found in the Affiliate's Control Panel, and offer them on the Affiliate's Web site under these General Terms and Conditions. However, the offering of these new products is dependent on the Software Publisher activating the Affiliate for the respective software.

§ 3 Control Panel

(1) After successfully completing the registration process for participation in the Program, the Affiliate will be sent a user ID and a password to access to the Affiliate Control Panel. With the user ID and password, the Affiliate Control Panel provides the Affiliate access, via a secure online connection, to a secure area on element 5's Web server so that the Affiliate may, at any time, view the number of software sales the Affiliate has referred, as well as change other settings. (2) When using the user ID and password, the Affiliate shall observe the following obligations and precautions: (i) Only the Affiliate may use the user ID and password. (ii) The password shall be kept strictly confidential. The Affiliate shall take due care to ensure that no unauthorized parties learn the password. (iii) If the Affiliate loses its password or if there is a possibility that an unauthorized party has learned the user ID and password, the Affiliate shall immediately report this to element 5, which can then block access by the Affiliate to the Control Panel. All actions carried out with the user ID and password will be attributed to the Affiliate.

§ 4 Integration of the Link

(1) The Affiliate shall integrate the product under the agreement using the appropriate link on its Web site; the link points to the order form operated by element 5. This link is generated by a Link Generator for the respective product under the agreement. The Link

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





Generator is located in the secure area of element 5's Web site in the Affiliate Control Panel. The link that is generated contains an individualized affiliate user ID by means of which any sales can be attributed to the Affiliate. Proper technical integration of the link is the responsibility of the Affiliate. If the links do not function, no Advertising Cost Compensation will be paid. (2) The Affiliate shall indicate on its Web site that (i) the Affiliate is acting as an independent partner of the respective Software Publisher by participation in the Affiliate Program provided by element 5 and (ii) The Software Publisher is the seller of the product and the payment process is administered by element 5. (3) The Affiliate shall produce a brief description for each activated product on its Web site. The Affiliate is responsible for the content, the style and the layout of this information. The Software Publisher can provide the Affiliate with graphics and text in an electronic format for use in describing the product, which the Affiliate shall use for the purpose of advertising the Products under the Agreement and links according to the instructions of the Software Publisher. The Affiliate should be aware that the product prices and availability may change at any time. It is not recommended that the price be listed on the Web site of the Affiliate. Maintenance of these product prices is possible only on the Web sites of the Software Publisher and the Publisher's corresponding site operated by element 5.

§ 5 Order Processing

(1) element 5 shall be responsible for the entire order processing for the referred end user according to the terms and conditions of the underlying share-it! Developer Agreement between the Software Publisher and element 5. element 5 shall provide the order forms for the order processing on its Web server; receive payments from the referred end users and forward these payments, less the agreed Advertising Cost Compensation, the service fees and relevant value added tax (VAT) to the Software Publisher; handle refunds and returns according to the provisions of the underlying share-it! Developer Agreement; and provide end user service relating to the administration of the order. The Software Publisher shall provide technical end-user service. (2) element 5 reserves the right to reject queries and orders which do not meet its requirements; including, in particular, orders by referred end users who do not meet credit requirements, who do not authorize direct debiting from their bank account, or who do not present a valid credit card. (3) An agreement by the Software Publisher with the referred end user does not exist until either a written or electronic order confirmation arrives from element 5 in the name of the Software Publisher or when element 5 begins to fulfill the agreement in the name of the Software Publisher. Typographical, printing and computation errors on the Web site of the Affiliate shall be charged to said Affiliate.

§ 6 Advertising Cost Compensation

(1) element 5 will pay Affiliate its advertising costs (including Vat, if any, on presentation of a valid VAT invoice) if an end user arrives via the link integrated in Affiliate's Web site at the order page hosted by element 5 for the respective Software

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





Publisher's Product under this Agreement and end user uses the automatic ordering system that carries out the registration and payment processing, so that the Affiliate's link is deemed to be directly causative for the entry of the End User into the agreement with the Software Publisher and End User's payment, proving that all requirements are irrevocably met (agreements arising in a qualified manner). Affiliate is only eligible to earn the Advertising Cost Compensation on sales occurring during the term of this Agreement and fees earned up to the date termination will remain payable only if the related orders are not cancelled or returned. (2) Insofar as the referred end user accepts cookies when clicking on Affiliate's link, proceeds from orders will be taken into account which do arise within the lifespan (of max. 180 days) of the cookie(s) used and/ or possibly within the lifespan of a special action of the Software Publisher via integrated link. (3) element 5 shall record and compute on a monthly basis the amount of said Advertising Cost Compensation for the Affiliate. (4) The computation basis for determining the value of the Advertising Cost Compensation is calculated by the gross sales price (including taxes, shipping and handling, etc.) actually invoiced to the referred end user. The percentage of the respective Advertising Cost Compensation shall be stipulated by the Software Publisher, but shall not exceed 50% of the effective gross sales price of the software. (5) The Advertising Cost Compensation shall not be paid if and insofar as it is determined that the end user will not meet its payment obligations or will meet them only partially, or if for any other reason the invoice to the end user was cancelled (e.g. in cases where a charge back of a credit card charge, a debit advice or other return or refund of the software product occurs). If the Advertising Cost Compensation was previously paid by element 5, it can be offset or invoiced to Affiliate at element 5's own discretion. (6) The payment of the Advertising Cost Compensation shall occur monthly insofar as the sum due exceeds a value of 100 EUR / 100 USD. If this is not the case, the sum due can be retained until a total value of at least 100 EUR / 100 USD is reached, at the latest, upon termination of the Affiliate's participation in the Program. (7) The payment can be made by wire transfer, Direct Deposit (US only) or check, as chosen by the Affiliate. (8) The invoicing is deemed to be approved if the Affiliate does not object in writing, including a statement of reasons, within four weeks.

III. Affiliate Management for Software Publishers

§ 1 Participation by the Software Publisher

(1) Software Publisher's participation in Affiliate Management indicates that the Software Publisher agrees to these General Terms and Conditions, and that the Software Publisher shall integrate the Affiliate Program into the Web site using a corresponding link. (2) To generate revenue through this Program by means of sales referred by the Affiliate, the Affiliate, after completion of registration, must be activated by the Software Publisher in the Control Panel. The Software Publisher will be informed of the Affiliate's

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





registration per e-mail with a request for the Affiliate's activation from element 5. (3) By configuring the settings in the Control Panel, the Software Publisher determines the amount of the success-based Advertising Cost Compensation. If the Publisher does not configure any settings, then it will accept the default settings proposed by element 5 when activating the Affiliate. Prior to making changes in the Control Panel regarding the amount of the Advertising Cost Compensation, written notification must be given to element 5 and the Affiliate.

§ 2 Integration of the link

(1) element 5 shall make a hyperlink available to the Software Publisher that links to the appropriate registration form for the Affiliate Program. The link can be accessed in the secure Software Publisher Control Panel on element 5's Web site under Affiliate Management. (2) Every Affiliate must complete the registration form once prior to participating in the Program and agree to these General Terms and Conditions by checking the Online checkbox. Afterwards, the Affiliate can also advertise other Products under this Agreement (see above § 3) after activation by the respective Software Publisher.

§ 3 element 5's Service Fee

For each sale administered by element 5 of the Software under this Agreement, element 5 shall receive an additional service fee of 2% of the gross sales price (including taxes, shipping and handling, etc.) as well as the Advertising Cost Compensation defined in II. § 6 (4) and in addition to VAT or sales tax (where applicable). element 5 will pay the Affiliate the Advertising Cost Compensation as defined in II. § 6 . Further invoicing terms are obtained from the existing business relationship, defined in the respective share-it! Developer Agreement between Software Publisher and element 5.

IV. General terms

§ 1 License

Upon activation of the Affiliate, the Software Publisher grants the Affiliate a non-exclusive, revocable right to use provided advertising material, notices and all further presentations (insofar as available - also known hereafter as Material) only for the purpose of designating its Web site as a partner Web site and presenting the designated advertising Material. Under no circumstances may the transferred Material be edited or modified without prior written permission of the Software Publisher. element 5 and the Software Publisher retain all rights with regard to their logos, their trade name or their trademarks and other commercial protection rights. The Software Publisher and element 5 are authorized to revoke the license granted to the Affiliate at any time by written notice.

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





§ 2 Changes to these provisions

element 5 RESERVES THE RIGHT TO MODIFY AND TO SUPPLEMENT THESE GENERAL TERMS AND CONDITIONS AT ANY TIME. THE CURRENT VERSION WILL BE MAINTAINED FOR VIEWING AS A HYPERLINK ON element 5's WEB SITE IN THE CONTROL PANEL. MOREOVER, element 5 WILL ANNOUNNOUNCE ANY CHANGES TO THESE TERMS VIA E- MAIL. WHITHIN 14 DAYS OF THE ANNOUNCEMENT OF CHANGED PARTICIPATION TERMS, AFFILIATE AND SOFTWARE PUBLISHER MAY OBJECT TO SUCH CHANGES. IF NO OBJECTION IS RECEIVED DURING THIS TIME, THE PARTICIPANT IS DEEMED TO HAVE ACCEPTED THE CHANGES AND THEY WILL BECOME PART OF THE EXISTING RELATIONS UNDER THE AGREEMENT.

§ 3 Correspondenceont>

Correspondence shall take place preferably via e-mail, which is accorded the same status as postal mail. Qualifying dates are always agreed as Receipt by Recipient, unless otherwise noted. For e-mail, the receipt of the message on the destination mail server is deemed to be the time of reception.

§ 4 Independence of Relations under the Agreement

The parties to the contract shall operate their Web sites independently of one another and are solely responsible for the content, technology used, and design. This agreement may not be construed as establishing between the parties a company or an association, nor does it establish an employment relationship or a commercial agent agreement. The parties to this agreement are not authorized to act in the name of the other party and / or to accept offers or make any statements on behalf of the other party. As an exception to the previous sentence, element 5 is authorized to make statements on behalf of the Software Publisher pursuant to these T&C and the element 5 vendor agreement (formerly known as e-sales contract).

§ 5 Guarantee by the Party to the Agreement for its Web site

(1) The Affiliate shall be responsible for the entire content of its Web site. The Affiliate guarantees in particular that (i) It will integrate advertising Material according to the provisions and instructions of the Software Publisher into that Affiliate's Web site insofar as said Material was transferred to the Affiliate; (ii) The material used the Affiliate's Web site will not contain any representations of violence, sexually related contents or discriminatory statements or representations with regard to race, sex, religion, nationality, handicap, sexual preference and orientation, or age, nor will said Material be unlawful in any way; (iii) The Material used on the Affiliate's homepage will not infringe upon the rights of third parties, particularly patents, copyrights, trademarks or other commercial protection rights as well as general personality rights and cannot be mistaken for the products of the Software Publisher and/or element 5 or a Web site operated by the Software Publisher and/or element 5; (iv) It will not send any e-mail without the express

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





consent of the receiver(s) (no spam e-mails). (2) The Affiliate shall guarantee the above named properties of its Web sites and will pay defense costs and indemnify and keep fully indemnified the Software Publisher and element 5, its subsidiaries and its and their directors, officers, employees and agents upon demand from any and all claims, demands, costs, liabilities, losses, expenses, and damages (including reasonable attorneys' fees, costs, and expert witnesses' fees) arising out of or in connection with any breach by Affiliate of its warranty set out in this clause.

§ 6 Limitation of liability

(1) The parties exclude mutual liability for slightly negligent violation of obligations in connection with this agreement, with the exception of § 16 and § 5 (3) of this agreement. This includes in particular the liability exclusion for lost profit, the loss of data or interruption to or errors in the operation of the Web site of the Affiliate. The above liability exclusion also applies to the personal liability of employees, representatives and persons employed to perform the obligations of the parties to the agreement. The limitation of liability does not apply to claims arising through initial incapacity or in case of justifiable impossibility. (2) Any possible product liability claims are unaffected by the above limitations. Insofar as element 5 or the Software Publisher violates an essential obligation under the agreement, the obligation to pay restitution is limited to the damages that typically arise. (3) element 5 makes no guarantees in regard to the Software Publisher's software products offered via its Web site. Moreover, element 5 does not guarantee the Affiliate that the operation of its Web sites will be maintained without interruptions and without errors. Liability is expressly excluded for the consequences of such interruptions or errors.

§ 7 Agreement period / Cancellation

The term of this Agreement will begin upon acceptance of Affiliate's Program application and will end when terminated by either party of this Agreement. This Agreement is entered into for an unlimited period of time. Either party may cancel this Agreement at any time, with or without supplying a reason, through written notification or by making suitable settings in the respective Control Panel.

§ 8 Termination of the agreement

(1) When the agreement ends, all usage rights of the Affiliate and Software Publisher accorded by this agreement with regard to the provided logos or Web site contents expire. (2) Upon termination of the relationship under this agreement, the Affiliate is obligated to undertake all of the technical measures necessary to delete from its Web site all links that refer to the Web sites of element 5 or to the Software Publisher. The same applies upon termination of Affiliate Management for links of the Software Publisher that were established in connection with the participation in Affiliate Management on its Web site. (3) element 5 is authorized to retain final payment for a reasonable time, minimum for 30 days after the end of the respective quarter, to ensure that the correct amount is paid.

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





Affiliate is only eligible to earn the Advertising Cost Compensation on sales of Software Publishers Products occurring during the term of this Agreement and fees earned up to the date termination will remain payable only if the related orders are not cancelled or returned. If the Advertising Cost Compensation was previously paid by element 5, it can be offset or invoiced to Affiliate at element 5's own discretion.

§ 9 Final provisions

(1) Force majeure If a party is unable to fulfill its obligations under the agreement for reason of force majeure, it shall immediately inform the other party thereof and do everything in its power to resume normal operations as quickly as possible. In such case, the affected party shall not be deemed to be in breach of contract and cannot be held liable. (2) Provision for written form Additional agreements, changes or additions are valid only if element 5 has confirmed them in writing. The same applies to the warranting of properties. (3) Severability clause If any provision of this agreement is or becomes invalid, the validity of the remaining provisions shall not be affected. Insofar as a provision is invalid, the parties will agree on a new provision which comes as close as possible to the intent of the invalid provision and which is legally valid. (4) Applicable law and jurisdiction Even in case of agreements with foreign (non-German) Software Publishers and Affiliates, the law of the Federal Republic of Germany applies. The place of jurisdiction for all claims arising in connection with this business relationship is Cologne, Germany.

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.

Output: 18644


Input: Consider Input: Exhibit 99.1   DISTRIBUTOR AGREEMENT   THIS AGREEMENT, dated as of October 24, 2005 is between JOHNSON MATTHEY CATALOG COMPANY, INC., a Delaware corporation, d/b/a ALFA AESAR (hereinafter referred to as ALFA AESAR), having a mailing address of 30 Bond Street, Ward Hill, MA 01835-8099 and Nanophase Technologies Corporation, a Delaware corporation (NTC), having its principal offices at 1319 Marquette Drive, Romeoville, IL 60446.   Whereas NTC is in the business of manufacturing and selling nanoparticles and nanoparticle dispersions (collectively nanomaterials) and wishes to expand the availability and marketing of nanomaterials for research purposes, and   Whereas ALFA AESAR is in the business of efficiently packaging, marketing, selling and distributing research materials, and   NTC desires to appoint and name ALFA AESAR, and ALFA AESAR desires to be appointed and named, exclusive distributor of the Products (as defined below) on a worldwide basis in research quantities for research purposes.   NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties hereto, each intending to be legally bound hereby, agree as follows:   1. Definitions:   1.1 Product or Products mean those nanomaterials, coated nanomaterials and dispersions of nanomaterials listed in Schedule A, as amended from time to time by mutual written agreement signed by the parties.     1.2 Product Price means the price for Products listed in Schedule A sold by NTC to ALFA AESAR.   1.3 Research Quantities means, in the case of nanomaterials and coated nanomaterials, quantities purchased and distributed in individual orders of 54 kilograms or less, and, in the case of dispersions of nanomaterials, quantities purchased and distributed in individual orders of 60 kilograms or less.   1.4 Commercial Quantities means in the case of nanomaterials and coated nanomaterials, quantities purchased and distributed in individual orders greater than 54 kilograms, and, in the case of dispersions of nanomaterials, quantities purchased and distributed in individual orders greater than 60 kilograms.   1.5 Custom Services is any program or product offered by NTC other than the manufacture of Products as listed in Schedule A.   1.6 Territory is all areas in which ALFA AESAR markets, sells or distributes chemicals or other materials through its various sales channels, including but not limited to its present and future catalog distribution networks, Internet web sites, and other distribution channels.   1





1.7 Trademark means all common law, registered and unregistered state, federal and foreign trade names, trademarks, and service marks, including without limitation any logos and slogans.   1.8 Net Sales means the cost charged to a customer for goods and services less the costs for shipping, handling, taxes, duties and credits.   2. Appointment; Reservation of Rights; Referrals.   2.1 NTC hereby grants to ALFA AESAR, and its subsidiaries and affiliates, the exclusive right to market, sell and distribute Research Quantities of the Products within the Territory, ALFA AESAR hereby accepts such right and agrees to use its reasonable efforts to promote the marketing, sale and distribution of Research Quantities of the Products throughout the Territory in accordance with the terms and conditions of this Agreement using normal and standard practices. ALFA AESAR shall have the right, in its sole discretion, to sell Products outside of the Territory. ALFA AESAR agrees that, so long as NTC provides ALFA AESAR with Products for ALFA AESAR' S marketing, sale and distribution of Research Quantities of the Products within the Territory, ALFA AESAR shall purchase all its requirements of the Products (including nanomaterials with physical or chemical properties substantially the same as the Products) exclusively from NTC during the term of this Agreement, ALFA AESAR shall:   i) buy the Products in quantities listed in Schedule A and repackage into the research sample quantities as it deems reasonable and appropriate for distribution and sale on a worldwide basis at such resale prices it shall determine from time to time, provided that any such repackaging shall comply with applicable safety laws and regulations;   ii) attempt to keep reasonably sufficient stocks of the Products to meet customer orders and to store such stocks in such conditions as NTC may recommend from time to time to prevent deterioration or damage.   2.2 NTC reserves for itself the right (i) to sell Commercial Quantities of the Products in individual order quantities of single commercial packages or greater, subject to Section 6; and (ii) to provide samples of the Products in any quantity, free of charge, to its commercial partners or potential partners.   3. Pricing, Exclusions and Purchase Orders.   3.1 Subject to Section 2.2, NTC shall sell Products to ALFA AESAR, at the Product Price as amended from time to time pursuant to this Section 3.1. NTC agrees that the Product Prices, benefits and allowances offered to ALFA AESAR shall not be less favorable than those offered on Products provided to agents, distributors or marketed directly by NTC to any customers, other than the Product Prices existing as of the date of this Agreement with NTC's commercial partners. Subject to the preceding sentence, NTC may increase the Product Price set forth in Schedule A at the end of the first full calendar year of this Agreement and from year to year thereafter, by providing ALFA AESAR with 90 days prior written notice of the changes to the   2





Product Prices. Any such increase in the Product Price shall not be effective for any unshipped portion of an order previously placed by ALFA AESAR prior to the end of the calendar year in which such notice is provided. NTC may decrease the Product Price at any time by providing ALFA AESAR with 30 days prior written notice.   3.2 NTC's prices do not include sales, use, excise, or similar taxes. The amount of any valid present or future sales, use, excise, or other similar tax that is attributable to ALFA AESAR shall be paid by ALFA AESAR; or in lieu thereof, ALFA AESAR shall provide NTC with a tax exemption certificate acceptable to the taxing authorities. Product Prices do not include any transportation or shipping expenses. NTC shall ship Products at ALFA AESAR's expense FOB/FCA (Incoterms 2000) NTC's facilities.   3.3 Subject to Section 2.2, NTC agrees to sell to ALFA AESAR such quantities of Products ordered by ALFA AESAR by written purchase orders. Purchase orders for Products shall be initiated by facsimile transmission, electronic mail or other written communication and shall be binding upon the parties upon acceptance by NTC. NTC shall be deemed to have accepted a purchase order unless NTC provides written notice of rejection to ALFA AESAR within three (3) days of NTC's receipt of such order, not including weekends and nationally recognized holidays.   4. Payment and Delivery.   4.1 Subject to Section 2.2, NTC shall use all reasonable commercial efforts to fill orders placed by ALFA AESAR with all reasonable promptness provided, however, that NTC shall have no obligation to furnish any Products hereunder which have been discontinued. In the event any order is not filled within thirty (30) days of receipt by NTC, ALFA AESAR has the right, but not the obligation, to seek alternative sourcing from a third- party without liability to NTC.   4.2 NTC shall ship Products FOB/FCA its facilities and will arrange delivery of the Products to ALFA AESAR using a nationally recognized carrier. Title to the Products, and the risk of loss or damage to the Products, each will pass to ALFA AESAR upon shipment from NTC's dock in compliance with United States D.O.T. requirements and all applicable laws and regulations.   4.3 NTC shall invoice ALFA AESAR for payment of Products delivered to ALFA AESAR on a Net 30 day basis. Excepting any amounts disputed in good faith, balances unpaid after such period will be subject to a finance charge of 1% per month or may be offset against any balances owed by NTC to ALFA AESAR. The parties agree to work in good faith to resolve any disputed invoice. In the event such efforts do not resolve the dispute within sixty (60) days, either party may initiate Arbitration proceedings pursuant to Section 16.   5. Returns; Discontinued Products.   5.1 Return Rights. Subject to the protocol described below, ALFA AESAR shall have the right to return at NTC's expense, and for full credit of ALFA AESAR's cost, any Products (i.) for which a legitimate and credible allegation is made that the use of such Products infringes on any patent, trademark, trade secret, copyright, right of privacy or publicity, or any other tangible or   3





intangible proprietary or intellectual property right; (b) that are not manufactured, packaged, or labeled in accordance with specifications or industry standards; (c) that are shipped in error or in non-conformance with ALFA AESAR's purchase order; or (d) that are damaged or defective. In the event that ALFA AESAR believes that it is entitled to return any Products delivered under this Agreement, the parties will adhere to the following protocol: (w) ALFA AESAR will contact NTC's Quality Director and then forward to the Quality Director, via a carrier selected by and at NTC's expense, a sample of the Product that ALFA AESAR believes is non-conforming; (x) upon receipt of the sample, NTC will test it and then notify ALFA AESAR of the test results; (y) where the test results confirm that the sample is non-conforming, NTC will provide ALFA AESAR with NTC's Return Authorization Number (RAN); and (z) any returned non-conforming Product must be in its original container, with original labels in act, and all paperwork concerning the returned Product must include NTC's RAN.   5.2 NTC may discontinue offering any Product for any reason by providing six (6) months advance written notice to ALFA AESAR, provided however, NTC shall continue supplying ALFA AESAR with such discontinued Product until the expiration of such six (6) month notice period. Notwithstanding the foregoing, NTC may discontinue any Product immediately upon written notice to ALFA AESAR if such discontinuation is due to any actual or alleged Product defect which may actually or allegedly cause damage to person, property rights or property, With respect to ALFA AESAR's existing inventory of discontinued Product, ALFA AESAR may, its sole discretion, return such Product at any time to NTC for full credit or refund.   6. ALFA AESAR Referrals.   6.1 The following shall be deemed referral sales for which NTC shall pay a commission in accordance with Section 6.2.     a. ALFA AESAR shall refer to NTC the following sales requests either directly or by navigation on ALFA AESAR's Web site:   i) any sales for single Product orders in excess of Research Quantities; or   ii) any sales inquiries for Custom Services.   6.2 NTC shall pay ALFA AESAR a commission for all sales under Section 6.1 as follows. The terms of this Section 6.2 shall survive any expiration or termination of this Agreement.



a) For all referrals under Section 6.1, except where NTC has evidence that it referral the customer (including its affiliates) to ALFA AESAR to purchase a prior sample of the Product in question, or where NTC has made sales to the customer (including its affiliates) referred to NTC by ALFA AESAR within a period of twelve (12) months before ALFA AESAR's referral under Section 6.1, NTC shall pay ALFA AESAR a commission at the rate of [***] on the Net Sales made to each such customer so referred to NTC under Section 6.1. NTC shall pay ALFA AESAR on a monthly basis for all such commissions for a period of three (3) years from the date of such referred customer's first order of Products or Custom Services from NTC.

*** CONFIDENTIAL TREATMENT REQUESTED—This confidential portion has been omitted from this document and filed separately with the Commission.   4





6.3 NTC shall maintain adequate records of its invoices and accounting records reflecting all such sales in accordance with standard accounting principles. Within twelve (12) months after the date this Agreement has been terminated by the parties, ALFA AESAR may engage an independent certified public accounting firm reasonably acceptable to NTC to audit the NTC invoices and accounting records pertaining to those customers identified as referrals under Section 6.1 at NTC's offices during normal business hours by providing thirty (30) days advance notice of such audit for the purpose of determining the accuracy of the commissions paid or payable to ALFA AESAR hereunder. NTC shall promptly pay ALFA AESAR for any deficiencies between the commission earned and the commission paid to ALFA AESAR.   7. Trademarks.    7.1 Each party hereby covenants and agrees that the Trademarks, copyrights and other proprietary rights of the other party are and shall remain the sole and exclusive property of that party and neither party shall hold itself out as having any ownership rights with respect to or, except as specifically granted hereunder, in any other rights therein. Any and all goodwill associated with any such rights shall inure directly and exclusively to the benefit of the owner thereof.   7.2 ALFA AESAR hereby grants to NTC a limited non-exclusive license to use the ALFA AESAR Trademarks in the form provided by ALFA AESAR during the Term of this Agreement in accordance with the terms set forth herein. Such license is granted solely in connection with NTC's rights and obligations under this Agreement and, in particular, for the purpose of licensing NTC to use the ALFA AESAR Trademark on the NTC web site as expressly contemplated herein for referral of customers of Research Quantities to ALFA AESAR and is a link/navigational button to the ALFA AESAR Site. All such uses will be subject to ALFA AESAR's approval as to the manner and/or form of use. NTC will not be allowed to use or reproduce the ALFA AESAR Trademark for any other purpose, including the general promotion of the NTC Site, without the prior written approval of ALFA AESAR.   7.3 NTC hereby grants ALFA AESAR a limited non-exclusive license to use, exhibit, excerpt, reproduce, publish, publicly perform and transmit via the Internet and otherwise use the NTC Trademarks in substantially the form as NTC may provide to ALFA AESAR from time to time during the Term of this Agreement in accordance with the terms set forth herein. Such license is granted solely in connection with ALFA AESAR's rights and obligations under this Agreement and, in particular, for the purpose of licensing ALFA AESAR to use the NTC Trademarks in ALFA AESAR's marketing, sales and distribution materials relative to the Products, including without limitation on the ALFA AESAR's Web site as a link/navigational button to the NTC Web site as posted by NTC. All such uses shall be subject to NTC's prior written approval as to manner and/or form of use.   7.4 Except as provided for in this Agreement, each party understands that the Web site links contemplated above to the other party's site may not be used in any manner to provide viewers access to the other party's Site via any caching, framing, layering or other techniques that cause   5





intermediate copying of the other party's Site (or elements thereof) or display of the other party's site or portions thereof in any manner unintended by the owner of the Site.   7.5 Upon termination of this Agreement, ALFA AESAR may continue to advertise and promote the Products, using the NTC's Trademarks and NTC content until ALFA AESAR's inventory depletion.   8. Training; Product Material.    8.1 NTC will provide training to ALFA AESAR's personnel on ALFA AESAR's premises as reasonably necessary, but no less than once annually, at mutually agreed upon times and dates to provide ALFA AESAR's sales and service personnel with adequate knowledge with respect to the Products.   8.2 NTC will provide to ALFA AESAR marketing and technical support for products as reasonably necessary and requested by ALFA AESAR, including providing Product materials which shall include, without limitation, Product specifications, images, and other textual, graphical and/or multimedia content regarding the Products for use in preparing advertising and promotional material. Subject to any limitations which NTC communicates to ALFA AESAR in writing, NTC hereby grants ALFA AESAR a license to use, exhibit, excerpt, reformat, modify, reproduce, publish, publicly perform and transmit via the Internet and otherwise use such NTC content for the purpose of marketing, advertising and promoting the Products, provided that ALFA AESAR obtains NTC's prior written approval for NTC content to be included in such literature.   9. Representations; Limited Warranty; Remedies.    9.1 NTC represents and warrants that i) the execution and delivery of this Agreement has been authorized by all requisite corporate action, ii) subject to Section 2.2, it in under no contractual or other obligation or restriction that is inconsistent with its execution or performance of this Agreement, iii) subject to Section 2.2, NTC will not enter into any agreement, either written or oral, that would conflict with NTC's responsibilities under this Agreement, iv) the Products do not infringe the intellectual property rights of any third party and NTC is not aware of any infringement claims relating to the Products, v) it will comply with all applicable laws, rules, regulations of any US or foreign laws, rules, or regulations in the manufacture and supply of Product, and vi) Products sold hereunder will be in compliance with the current Product description set forth in Schedule A, as amended from time to time by agreement of the parties. NTC shall further grant to ALFA AESAR the same warranty, as set forth in NTC's General Terms and Conditions of Sale for its products set forth in Schedule B. The foregoing warranties shall apply only to, and is intended for the benefit of, ALFA AESAR's customers.   9.2. Subject to the protocol in Section 5.1, ALFA AESAR may return to NTC any Product that is defective or that fails to comply with the purchase order provided by ALFA AESAR. NTC shall return to ALFA AESAR as promptly as possible, a working replacement or, in the event such replacement is not possible or at ALFA AESAR's election, it shall credit ALFA AESAR's account for the invoiced price and shipping charges of the defective Product. The   6





correction of such defective Product shall be at no cost to ALFA AESAR. The cost of shipping the replacement Product back to ALFA AESAR shall be paid by NTC. THE CORRECTION OF SUCH DEFECT BY REPAIR OR CREDITING ALFA AESAR'S ACCOUNT FOR THE COST OF THE PRODUCT IN THE MANNER SET FORTH ABOVE SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF DISTRIBUTOR WITH RESPECT TO ANY WARRANTY GIVEN HEREIN RELATING TO ANY PRODUCT SOLD OR DELIVERED HEREUNDER.   9.3 ALFA AESAR represents and warrants that i) the execution and delivery of this Agreement has been authorized by all requisite corporate action, ii) it is under no contractual or other obligation or restriction that is inconsistent with its execution or performance of this Agreement, iii) ALFA AESAR will not enter into any agreement, either written or oral, that would conflict with ALFA AESAR's responsibilities under this Agreement, iv) it will comply with applicable safety laws and regulations for the repackaging and storage of Products, and v) excepting such warranties provided by NTC herein, it will make no warranties or other representations of any kind about the merchantability or fitness for any particular purpose of any Products, whether used alone or in connection with any other substance.   10. Indemnification.    10.1 NTC shall protect, defend, indemnify and hold ALFA AESAR, its directors, officers, employees, and agents harmless from any and all claims, actions, causes of action, liabilities, losses, damages, costs or expenses, including reasonable attorneys' fees, which directly or indirectly arise out of or relate to i) NTC's breach of warranties in Section 9.1, or ii) NTC's gross negligence or willful misconduct arising out of its manufacture, sale or transfer of the Products to ALFA AESAR, excepting indemnification for which ALFA AESAR is obligated under 10.3.   10.2 ALFA AESAR agrees to give NTC (i) prompt written notice of any claims made for which NTC might be liable under the foregoing indemnification, and (ii) the opportunity to defend, negotiate, and settle such claims. ALFA AESAR shall provide NTC with all information in its possession, all authority, and all assistance reasonably necessary to enable the indemnifying party to carry on the defense of such suit; provided, however, that each party shall have the right, at its own expense, to retain its own counsel to defend itself in such suit.   10.3 ALFA AESAR shall protect, defend, indemnify and hold NTC, its directors, officers, employees, and agents harmless from any and all claims, actions, causes of action, liabilities, losses, damages, costs or expenses, including reasonable attorneys' fees, which directly or indirectly arise out of or relate to i) ALFA AESAR's breach of warranties in Section 9.3, (iii) ALFA AESAR's gross negligence or willful misconduct arising out of its sale or transfer of the Products to ALFA AESAR's customers, excepting indemnification for which NTC is obligated under 10.1.   10.4 NTC agrees to give ALFA AESAR (i) prompt written notice of any claims made for which ALFA AESAR might be liable under the foregoing indemnification, and (ii) the opportunity to defend, negotiate and settle such claims. NTC shall provide ALFA AESAR with all information in its possession, all authority, and all assistance reasonably necessary to enable the indemnifying party to carry on the defense of such suit; provided, however, that each party shall have the right, at its own expense, to retain its own counsel to defend itself in such suit.   7





11. Relationship and Conduct of Business.    11.1 ALFA AESAR shall use its reasonable efforts and devote such time as may be reasonably necessary to sell and promote the sale of Products within the Territory.   11.2 ALFA AESAR agrees not to manufacture, buy, sell, distribute, deal in or be the agent for any products with the specifications of any of the Products, excluding any preexisting ALFA AESAR products.   12. No Joint Venture.    12.1 This Agreement does not in any way create the relationship of franchisor and franchisee, joint venture, partnership, employment or principal and agent between ALFA AESAR and NTC. Neither party, nor any person acting on behalf of a party, is or shall be considered an employee of the other party for any reason whatsoever, and does not and shall not have any rights to, or participate in, any pension or welfare plans, or any other benefits which now or hereafter maintains for or provides to its employees. Neither party, or any person acting on behalf of a party, is or shall be deemed to be the legal representative or agent of the other party for any purpose whatsoever, and is not authorized to transact business, incur obligations, express or implied, or otherwise act in any manner, in the name or on behalf of the other party, or to make any promise, warranty or representation with respect to Products (except as provided herein by NTC or as NTC otherwise expressly approves as to its Products) or any other matter in the name of or on behalf of the other party.   13. Term.    13.1 The initial term of this Agreement shall be for a period of five (5) years from the date first set forth above and shall thereafter automatically renew for additional two (2) year terms unless a party provides the other party with notice of non-renewal no less than 6 months prior to the expiration of the initial term or any renewal term unless earlier terminated as follows:   13.1.1 In the event of material breach, the non-breaching party shall give the breaching party sixty (60) days written notice of such breach. If substantial efforts to cure the breach are not taken within the sixty (60) day notice period, the non-breaching party may, at its sole discretion, terminate the agreement.   13.1.2 In the event a party becomes insolvent or if a party is declared bankrupt or makes an assignment for the benefit of creditors or in the event a receiver is appointed or any proceeding is demanded by, for or against a party under any provision of any bankruptcy law which is not withdrawn within sixty (60) days, the other party to this Agreement shall have the sole right to immediately terminate; or   13.1.3 By either party for any reason by providing six (6) months prior written notice expressly terminating this Agreement. Such notice may be by facsimile transmission or other written communication.   8





13.2 Termination of this Agreement shall not affect the rights or obligations of the parties accrued as of the date of termination. The provisions of Sections 6, 9, 10, 15 will survive termination of the Agreement.   13.3 Upon termination of this Agreement for any reason, ALFA AESAR may i) return its current inventory of Products for reimbursement by NTC or ii) keep its current inventory of Products and continue to sell such Products pursuant to the terms hereof until depletion of inventory. Upon termination of this Agreement, NTC shall promptly refund to ALFA AESAR all outstanding credits accrued on ALFA AESAR's account.   14. Insurance. Each party agrees to maintain and provide the other with evidence of insurance coverage for comprehensive general liability in an amount no less than $2,000,000.00 U.S. dollars.   15. Confidentiality. The parties agree as follows; Confidential Information shall mean trade secret, technical, commercial, or financial information and all other nonpublic proprietary or confidential information. Each party receiving Confidential Information from the other party agrees to maintain in confidence and not divulge such Confidential Information, in whole or in part, to any third party, including subsidiaries or affiliates, licensees or clients anywhere, and not make use of such Confidential Information other than in relation to its performance under this Agreement. This obligation shall not apply to: (i) Confidential Information which at the time of disclosure by the disclosing party is in the public domain; or (ii) Confidential Information which, after disclosure by the disclosing party, becomes part of the public domain by publication or otherwise, other than by an unauthorized act or omission by the receiving party; (iii) Confidential Information which receiving party can show by contemporary written records was in its possession at the time of the disclosure and which was not acquired, directly or indirectly from disclosing party; or (iv) Confidential Information which receiving party rightfully receives from a third party and which was not acquired, directly or indirectly, from the disclosing party; (v) information which is developed independently without reference to the Confidential Information of the other party; or (v) Confidential Information which, if disclosed in written or other tangible form, is not marked Confidential, or if disclosed orally is not summarized in a writing identifying the Confidential Information and submitted to the receiving party within thirty (30) days of the oral disclosure; or (vi) Confidential Information which is compelled by law to be disclosed by the receiving party, provided that the receiving party shall use its best efforts to give the disclosing party ten (10) days prior written notice of any such compelled disclosure. Each party agrees that it shall restrict its disclosures of the disclosing party's Confidential Information within its own organization to those persons having a need to know it for the purposes of performance under this Agreement and that such persons shall be advised of the obligations of confidentiality set forth herein and shall be obligated in like fashion. Upon request on termination or expiration of this Agreement, the receiving party shall promptly return to the disclosing party all Confidential Information and shall retain no copies except that one copy may be retained for purposes of determining such receiving party's compliance with the terms of this paragraph.   16. Disputes and Arbitration. The parties shall first seek to resolve any dispute by negotiations between their senior executives. When a party believes there is a dispute under this Agreement, that party will give the other party written notice of the dispute. Failing settlement of the dispute within 60 days of notice, either party may initiate binding arbitration proceeding; by   9





written notice to the other party, provided however, no dispute arising from any actual or threatened breach of any provisions in Sections 10 or 15 of this Agreement shall be subject to Arbitration. However, any other claims or disputes arising hereunder, including the construction or application of this Agreement, shall be settled by arbitration before a single arbitrator in accordance with the Rules for Commercial Arbitration of the American Arbitration Association (AAA) then in force. The place of arbitration shall be the location of the party hereto against whom the claim is made. If the parties cannot agree on an arbitrator within 10 days after demand by either of them, then the arbitrator shall be selected pursuant to the AAA's Commercial Arbitration rules. The decision of the arbitrator shall be final and binding upon the parties and may be submitted to any court of competent jurisdiction for entry of a judgment thereon in accord with the Federal Arbitration Act or the Uniform Arbitration Act. The expense of the arbitration shall be shared equally by both parties. Each party shall bear its own other costs, i.e. fees and costs of its own lawyers and witnesses.   17. Notices. Any notice required or permitted to be given hereunder shall be deemed to have been duly given if delivered by hand, overnight courier delivery or mailed, certified and registered mail, with postage prepaid to the addresses first set forth above or at such other addresses as either party may designate in writing to the other, and if to ALFA AESAR with a copy to Johnson Matthey, 435 Devon Park, Suite 600. Wayne PA 19087, Attention: Vice President & General Counsel. This section is not intended to govern the day-to-day business communications necessary between the parties in performing their duties, in due course, under the terms of this Agreement.   18. Severability. The provisions of this agreement shall be severable, and if any provision of this Agreement is held to be invalid or unenforceable, it shall be construed to have the broadest interpretation which would render it valid and enforceable. Invalidity or unenforceability of one provision shall not affect any other provision of this Agreement.   19. Entire Agreement. This Agreement contains the entire agreement with respect to the subject matter hereof, and there are no other agreements or understandings, express or implied, written or oral, as to the subject matter hereof. This Agreement may not be amended or altered except by a written instrument signed by both parties, expressly stating that it is intended as an amendment hereto. No purchase order or other written order or acknowledgment issued by either party shall serve to vary the terms and conditions of this Agreement, or otherwise alter the obligations of the parties provided herein.   20. Waiver. The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit or waive either party's rights thereafter to enforce and compel strict compliance with every term and condition of this Agreement.   21. Counterparts. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one agreement.   22. Governing Law. This Agreement shall be governed by and interpreted under and in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.   10





23. Public Announcements. Upon execution and at any time during the term of this Agreement, the parties shall cooperate in preparing a joint press release announcing this Agreement and the availability of NTC Products in Research Quantities through ALFA AESAR, provided that no such joint press release shall be issued without both parties' prior approval.   24. Headings. The headings in this Agreement are for convenience only and do not in any way limit or amplify the terms or conditions of this Agreement.   IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first set forth above.   NANOPHASE TECHNOLOGIES CORPORATION       JOHNSON MATTHEY CATALOG COMPANY, INC.

By:     /s/ W. Ian Roberts       By:    /s/ Barry Singelais     W. Ian Roberts           Barry Singelais     V.P. U.S. & International Sales           General Manager

Dated: October 14, 2005       Dated: October 24, 2005   11





Schedule A   List of Products to be offered by ALFA AESAR.   Quantities and NTC pricing to ALFA AESAR are included.   All prices are USD, FOB Romeoville IL, net 30.   Product Specification  Nanopowders:   Name



Product Code



Quantity



Price/kg

NanoTek® Aluminum Oxide   0115   [***]  $[***] NanoDur™ Aluminum Oxide   0119   [***]  $[***] NanoTek® Antimony Tin Oxide   2400   [***]  $[***] NanoArc® Bismuth Oxide   EXP 0250   [***]  $[***] NanoArc® Copper Oxide   EXP 0502   [***]  $[***] NanoTek® Indium Tin Oxide   0600   [***]  $[***] NanoArc® Cosmetic Iron Oxide   EXP 0807   [***]  $[***] NanoArc® Magnetic Iron Oxide   EXP 0806   [***]  $[***] NanoTek® Tin Oxide   1400   [***]  $[***] NanoGard® Zinc Oxide   1700   [***]  $[***] NanoTek® Zinc Oxide   1701   [***]  $[***] NanoTek® Zinc Oxide C1   1716   [***]  $[***] NanoTek® Zinc Oxide C2   EXP 1726   [***]  $[***]

Nanoparticle dispersions:             Name



Product Code



Quantity



Price/kg

NanoDur™ X1121W, 50wt%   EXP 0187   [***]  $[***] NanoDur™ X1130PMA, 50wt%   EXP 0151   [***]  $[***] NanoShield® ZN-2000, 50wt%   EXP 1754   [***]  $[***] NanoShield® ZN-3010, 50wt%   EXP 1769   [***]  $[***] NanoTek® Z1102PMA, 50wt%   EXP 1707   [***]  $[***] NanoTek® AL-6081, 23wt%   EXP 0180   [***]  $[***] NanoTek® AL-6051, 23 wt%   EXP 0142   [***]  $[***] NanoTek® CE-6042, 18wt%   0311   [***]  $[***] NanoTek® CE-6080, 20wt%   0315   [***]  $[***] NanoTek® CE-6082, 18wt%   0314   [***]  $[***] NanoTek® CE-6086, 18wt%   EXP 0333   [***]  $[***]

*** CONFIDENTIAL TREATMENT REQUESTED—This confidential portion has been omitted from this document and filed separately with the Commission.   12





Schedule B NANOPHASE TECHNOLOGIES CORPORATION STANDARD TERMS AND CONDITIONS    1. General Terms: As used in these Terms and Conditions, the terms (a) Seller shall mean Nanophase Technologies Corporation and (b) Buyer shall mean the party ordering shipment of Seller's products under the Order. These Terms and Conditions, including the provisions on the face hereof, constitute the exclusive contract between the parties for the products provided by Seller (Order or Agreement). Seller will be deemed to have accepted this Order when Seller returns an acknowledged copy of this Order, or, at Seller's option, when Seller begins substantial performance under this Order. Buyer accepts this Order by acknowledging a copy of this Order, by confirming this Order by its purchase order, purchase requisition or confirmation, or by accepting for shipment the products hereunder. Notwithstanding the manner in which Buyer accepts, Buyer's acceptance is limited exclusively to the acceptance of Seller's terms and conditions set forth in this Order only. Seller hereby rejects any proposal by Buyer for additional or different terms in connection with the products or services provided. Buyer may acknowledge this Order by purchase order, but any and all terms, conditions and provisions contained in said purchase order, acknowledgment form or other communications with respect to the transaction contemplated by this Order, or subsequent to the date hereof, are agreed to be superfluous and without any force and effect. This Order, which includes all terms and conditions hereof, is intended to be the exclusive and final statement of the terms and understandings relative to the subject matter hereof, merging herein and superseding all negotiations and prior written or oral agreements between the parties as to the subject matter of the purchase of the products hereunder. There are no promises, representations or understandings made in connection with this Order or contemporaneous with the execution hereof, except as set forth herein.   2. Prices and Taxes: All prices are set forth on the face of this Order. Seller is entitled to defer shipment of products in the event all amounts due it under this or any other Agreement are not paid in full. All payments shall be made to Seller at its offices. The failure to make prompt payment shall be a material breach of this Agreement. The price of the products specified in this Order does not include federal taxes, state or local sales taxes, value added taxes, use taxes or occupational taxes. Unless prohibited by law, Buyer is responsible for and shall pay all applicable sales, use, occupational, excise, value added or other similar taxes applicable to the manufacture, sale, price, shipment or use of the products provided by Seller.   3. Delivery and Risk of Loss: All sales are FOB Seller's premises in Burr Ridge or Romeoville, Illinois. Seller shall have no liability or responsibility for the late or non-shipment of products hereunder. Title to, risk of loss, destruction of or damage to the products shall be Seller's until delivery of the products to a carrier at the Seller's premises in Burr Ridge, Illinois. Thereafter, Buyer shall be fully responsible for and assume all ownership, risk of loss, destruction of or damage to the products. Loss or damage to the products after title and risk of loss have passed to Seller will not release or excuse Buyer from its obligations under this Order to Seller, including the obligation to make full payment.   4. Short Shipments/Damage Claims: Seller will endeavor to ship all Orders complete or as complete as reasonably possible. Seller will, however, ship incomplete orders upon written authorization by Buyer. In that event, Seller shall have no liability for short, incomplete or delayed orders. All damage claims shall be made within fourteen (14) days of delivery and shall be in writing.   5. Rejection and Revocation of Acceptance: Any rejection or revocation of acceptance by Buyer (a) must be made within thirty (30) days of the products being made available for shipment to Buyer, (b) any attempted rejection or revocation of acceptance made thereafter shall be null and void, and (c) any rejection or revocation of acceptance shall comply with Seller's return protocol.





6. Compliance with Governing Laws: Buyer warrants that its performance hereunder, including the use of the products hereunder, shall comply with all applicable state, federal and foreign law, regulations, environmental regulations, statutes or requirements, including, but not limited to, FDA approvals or any other approvals or certifications required by law   7. Assignment and Modification: The rights and obligations of the parties under this Agreement shall not be assignable unless consent to the assignment is in writing and signed by the parties. This Order shall not be modified, altered or amended in any respect except by a writing signed by the parties. Any variation, modification, or addition to the terms set forth in this Order shall be considered a material modification and shall not be considered part of this Agreement.   8. Limited Warranty and Disclaimer of All Other Warranties: EXCEPT FOR THE EXPRESS WARRANTY, IF ANY, THAT THE PRODUCTS COMPLY WITH THE SPECIFICATIONS IDENTIFIED IN WRITING ON THE FACE OF OR ACCOMPANYING THIS ORDER, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES IN THIS ORDER OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER DISCLAIMS ALL WARRANTIES, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. SELLER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY TO BUYER FOR ANY CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF USE, LOSS OF PROFITS, INCOME, OR REVENUE, LOSS OF TIME OR INCONVENIENCE, LOSS OR DAMAGE TO ASSOCIATED EQUIPMENT, COST OF SUBSTITUTED OR REPLACEMENT EQUIPMENT, LOSS TO FACILITIES, LOSS OF CAPITAL, LOSS OF SERVICES OR ANY OTHER INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGE ARISING OUT OF THIS ORDER OR THE OPERATION, FUNCTION OR CHARACTERISTICS OF THE PRODUCTS PURCHASED HEREUNDER OR OTHERWISE PROVIDED BY SELLER. IN THE EVENT THAT PRODUCTS DO NOT SATISFY SPECIFICATIONS, THEY WILL BE REPLACED, AT SELLER'S OPTION, WITH PRODUCTS THAT DO SATISFY THE SPECIFICATIONS AT SELLER'S SOLE EXPENSE. SAID REPLACEMENT IS THE SOLE AND EXCLUSIVE REMEDY OF BUYER.   9. Limitation of Liability: To the fullest extent permitted by law, the parties waive and relinquish any claims, demands, causes of action or recoveries for punitive damages, exemplary damages, or statutory damages. Seller shall not be liable for indirect, special, incidental or consequential damages arising under this Agreement or otherwise with respect to the sale of the products, including any lost revenues or profits, consequential and/or incidental damages, business interruption or damage to business reputation, regardless of the theory upon which any claim may be based, including any statutory causes of action or claims. In no event will Seller's entire liability to Buyer, including any liability in the event the exclusive remedy set forth in this Agreement fails of its essential purpose, exceed the purchase price actually paid by Buyer for the products hereunder, or any defective portion thereof, whichever is the lesser amount.   10. Force Majeure: Seller shall have no liability or obligation to Buyer of any kind, including but not limited to any obligation to ship products, arising from any delay or failure to perform all or any part of this Order as a result of causes, conduct or occurrences beyond Seller's reasonable control, including, but not limited to, commercial impracticability, fire, flood, act of war, civil disorder or disobedience, act of public enemies, terrorist acts, terrorism generally affecting commerce, problems associated with transportation (including car or truck shortages), acts or failure to act of any state, federal or foreign governmental or regulatory authorities, labor disputes or strikes.   11. Relationship: The relationship between Seller and Buyer shall be that of independent contractors. Seller, its agents and employees, shall under no circumstances be deemed the employees, distributors, franchisees, agents or representatives of Buyer.





12. Default: The failure of Buyer to perform any obligations hereunder, including without limitation, the payment of the purchase price for products and all other amounts due hereunder, the failure to materially perform other agreements between Buyer and Seller, or Buyer's bankruptcy or insolvency, shall constitute a default under this Agreement and shall, in addition to any other remedies, afford Seller all of the remedies of a secured party under the Uniform Commercial Code of the State of Illinois. In the event of default, Seller may, in addition to pursuing any of the remedies provided by law, equity or as set forth in this Agreement, refuse to make available for shipment products under this or any other agreement relating to the products, and may also cancel this Order and any pending orders without liability to Buyer. It is expressly understood that Seller's remedies are cumulative to the fullest extent permitted by law.   13. Attorneys' Fees: In the event it becomes necessary for Seller to enforce the terms and conditions of this Order by litigation or otherwise, or to defend itself in any Controversy (as defined herein), litigation, claim, demand or cause of action arising out of or as a result of this Order or the products or services provided hereunder, and if Seller is the substantially prevailing party in said Controversy, litigation, claim, demand or cause of action, then Seller shall be entitled to recover, in addition to any other relief granted or damages assessed, its reasonable attorneys' fees, expert witness fees, costs, and all expenses of litigation.   14. Waiver: No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.   15. Severability: If any term, covenant, warranty or condition of this Order, or the application thereof to any person or circumstance shall, to any extent, be held or deemed invalid or unenforceable, the remainder of this Order or the application of such term, covenant or provision, to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term, covenant or provision of this Order shall be deemed valid and enforced to the fullest extent permitted by law.   16. Indemnification: To the fullest extent permitted by law, Buyer shall defend, indemnify and hold Seller harmless from any and all claims, demands, subrogation claims by Buyer's insurers, causes of action, liabilities, fines, regulatory actions, seizures of product, losses, costs, expenses (including, but not limited to attorneys' fees, expert witness expenses and litigation expenses) (hereinafter Claim), arising from or in connection with any Claim asserted against Seller for any damage, injury, death, loss, property damage, environmental liability, or any other Claim, whether in tort, contract, or otherwise, relating to this Order, the business relationship between the parties or the goods provided hereunder. Notwithstanding the foregoing, Buyer has no indemnity obligation to Seller with respect to any Claims that result solely from the negligence of Seller and this indemnity provision does not purport to indemnify Seller solely for its own negligence, but rather for the negligence or conduct, whether sole or concurrent, of Buyer. Buyer, for itself and its insurers, expressly waives any and all limitations or liability caps, if any, on Buyer's contribution liability to Seller, and any and all statutory or common law lien rights or Claims against Seller arising from any applicable workers compensation or disability acts, which Buyer might or could assert against Seller or Seller's insurers in the event of the personal injury or death of Buyer's employees, representatives or servants. Without limiting the foregoing, Buyer, for itself and its insurers, also waives any liens, claims or other rights it may have as a result of being subrogated to any rights of its employees, representatives or servants.   17. Insurance: Buyer shall obtain comprehensive general liability coverage, including contractual liability coverage, naming Seller as an additional named insured, in amounts sufficient to fully protect Seller under this Agreement from loss, damage or casualty caused by Buyer or incurred by Seller under this Agreement.   18. Governing Law and Forum Selection: This agreement shall be governed by and subject to the internal laws (exclusive of the conflicts of law provisions) and decisions of the courts of the State of Illinois. The parties consent to the exclusive jurisdiction of the federal court in Chicago, Illinois or the state court located in DuPage County, Illinois with respect to all litigation, claims, causes of action, demands, Controversies (as defined





herein) or disputes among the parties. The only exception to this forum selection provision is a claim by Seller seeking the replevin of the products in the event the courts specified in this provision will not or cannot assert jurisdiction. All counterclaims, if any, in connection with the replevin claim, shall be subject to this forum selection provision. 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?

Output: 25629


Input: Consider Input: SCHEDULE B

Customization Schedule

This Customization Schedule is attached to the Software License, Customization and Maintenance Agreement (the Agreement) executed by and between Bank of America, N.A. (Bank of America) and <<enter Company Name>> (Supplier). The Customizations identified hereunder shall be subject to the terms and conditions of that Software License, Customization and Maintenance Agreement referenced above.

Bank of America wishes to obtain the Customizations herein defined, and Supplier wishes to delivery those Customizations, on the terms and conditions of the Agreement and this Customization Schedule.

1. The Customizations shall fulfill or exceed all of the functional, performance and other specifications described in the Program Materials and the documents prepared either by Bank of America or Supplier pursuant to this Agreement. as indicated below.

No later than <<enter Customization Documents Delivery Date>>, Supplier shall deliver to Bank of America the documents described below for this Customization. The detailed specifications so delivered shall be incorporated herein when approved by Bank of America.

System Solution

Functional Specifications

System Design Specifications

 Test Specifications





Supplier acknowledges receipt of the following documents from Bank of America:

 Detailed Requirements





2.  Bank of America Customizations:





3.  Supplier Customizations:



      Proprietary to Bank of America  B-1  vTIP2010

Source: CARDLYTICS, INC., S-1, 1/12/2018





4. Fees for Customizations:

[SPECIFY TIME AND MATERIALS RATES ([Indicate any not to exceed limit on T&M Customization costs) OR FIXED PRICE]

If the proposed price Is Increased by Supplier upon delivery to Bank of America of detailed specifications or at any other time hereafter, Bank of America may terminate this Schedule and shall receive a refund of all amounts previously paid hereunder.

5. Unless otherwise specified herein, the environment for this Customization Is the same as described on Product License Schedule A to this Agreement.

6 The Delivery and Installation Schedule for this Customization is:

Delivery Date:

Installation Date:

[Insert any other Schedule Information pertaining to the Delivery or Installation of the Product]

7. [Add any special items. e.g., special payment Schedule, for this Schedule.]

8. Project Personnel:

 Bank of America Project Administrator:   Supplier Project Administrator:



 Bank of America Project Manager:   Supplier Project Manager:



  THE FOREGOING IS UNDERSTOOD AND AGREED TO BY:

<<enter Company Name>> (Supplier)   Bank of America, N.A. (Bank of America) By:    By:

Name:    Name:   Title:    Title:   Date:    Date:      Proprietary to Bank of America  B-2  vTIP2010

Source: CARDLYTICS, INC., S-1, 1/12/2018 
Question: Highlight the parts (if any) of this contract related to Parties that should be reviewed by a lawyer. Details: The two or more parties who signed the contract


Output: 254