ASTM Supplier s Declaration of Conformity Program Participant Agreement This Agreement effective (the Effective Date), between ASTM International ( ASTM ), a Pennsylvania nonprofit corporation, having its principal place of business at 100 Barr Harbor Drive, West Conshohocken PA 19428 USA and ( Participant ), having its principal place of business at: W I T N E S S E T H WHEREAS, ASTM has established a Program on Supplier s Declaration of Conformity to ASTM Standard Test Methods ( Program ) that provides for a Supplier to register with ASTM certain information, including: general company/product information; ASTM test method identification; sample selection procedures; general testing laboratory information; testing laboratory accreditation/capabilities; testing laboratory test report(s) and data; and attestation that all required information is accurate ( Supplier Documentation ); WHEREAS, ASTM has established a General Operations Manual for the ASTM Program on Supplier s Declaration of Conformity to ASTM Standard Test Methods ( Manual ) and a Documentation Form for Supplier s Declaration of Conformity ( Documentation Form ); WHEREAS, the Supplier desires to have its Supplier Documentation registered in the Program in accordance with the Manual and Documentation Form ( ASTM Procedures ); WHEREAS, ASTM has established a General Operations Manual for the ASTM Supplier s Declaration of Conformity Program (available at www.astm.org) ( ASTM Procedures ); NOW, THEREFORE, for consideration of the registration of its Supplier Documentation and other valuable consideration, the receipt of which is hereby acknowledged, and intending to be legally bound, Supplier agrees as follows: 1. Incorporation of WHEREAS Clauses The parties incorporate by reference the WHEREAS clauses set forth above as if fully set forth herein. 2. Scope of Performance 2.1. ASTM requires that the Supplier completes this Agreement and the Documentation Form. 2.2. The Supplier will then register for the Program, pay the fee, and forward the two documents to ASTM. 2.3. ASTM will review the completed Agreement and Documentation Form. ASTM will communicate with the Supplier to obtain missing information or any needed clarification. ASTM will promptly provide a 1 of 6
notification on whether the Supplier s documentation is accepted or not. It is the responsibility of the Supplier to ensure that all information provided is accurate. ASTM does not check accuracy or verify data. Registration fees will not be refunded. 2.4. A notice of registration will be sent to the Supplier, including the Supplier s Program identification number. 3. Participant s Warranties and Responsibilities 3.1. Supplier accepts the terms stated herein and agrees to abide by the terms of this Agreement and the ASTM Procedures. 3.2. Supplier agrees that, if registered, it will claim registration only in connection with Supplier Documentation covered in the application and registered by ASTM and not to make any claims concerning the registration that are inaccurate or misleading. 3.3. The Supplier shall not bring any false accusations, nor slander, nor libel, nor disrepute to ASTM. Supplier also agrees not to challenge ASTM s rights under the Program, Procedures, or this Agreement. 3.4. Supplier agrees to notify ASTM in writing of any complaints that it receives regarding its registration in the Program. 3.5. The ASTM Supplier s Declaration of Conformity Program is not an ASTM certification program and the ASTM certification mark shall not be used. The ASTM Logo Policy is available at http://www.astm.org/ POLICY/logo_policy.html. 3.6. The Supplier may represent that their product has been tested in accordance with an ASTM Standard Test Method by referencing the specific standard designation, year date, and title (i.e. ASTM E84-11b Standard Test Method for Surface Burning Characteristics of Building Materials) and indicate that the testing documentation has been registered in the ASTM Supplier s Declaration of Conformity Program. 4. Insurance 4.1. Supplier shall maintain at its own expense in full force and effect at all times during which the Supplier s registration is accepted and for three years thereafter, with an approved insurance carrier, at least one million dollars ($1 million) per occurance/$3 million aggregate products liability and comprehensive general liability insurance policy with respect to the product tested, which will also provide coverage for the Indemnification obligation set forth below. 5. Indemnity 5.1. Supplier agrees to defend, indemnify, and hold harmless ASTM (its members, directors, officers, employees, agents, and representatives) against any and all liability, loss, costs, damages, attorneys fees, and expenses of whatever kind or nature that they may sustain or incur by reason of any claim against them resulting from any acts or omissions of the Supplier or that relate in any way to this Agreement, the Program, or ASTM Procedures. The provisions of this Section survive the termination of this Agreement. 5.2. Supplier s obligations to defend, indemnify, and hold harmless shall be subject to ASTM providing prompt 2 of 6
(within 30 days) written notice to the Supplier of all claims and the commencement of any suit, action, or proceeding in respect of which indemnity may be sought. The Supplier shall have control of the selection of counsel (with advice and consent of ASTM) and the defense of all claims. ASTM shall cooperate at the request and cost of the Supplier in the defense of all claims for which indemnification is sought. 6. Confidentiality of Information 6.1. All technical information provided by or to either party in connection with this Agreement and the Program shall be treated as confidential and not disclosed to the public, and any technical or proprietary information provided by either party shall remain the property of the provider of that information and shall not be permitted to be used without the prior written consent of the originating party of that information, unless that information shall become publicly available by means other than the violation of this paragraph by ASTM or Supplier. 7. Termination or Nonrenewal 7.1. This Agreement may be terminated by either party, with or without cause, upon 90 days written notice to the other party. 7.2. This Agreement may be terminated for cause by ASTM, upon thirty (30) days written notice, if Supplier fails to comply with any material provision of this Agreement or the ASTM Procedures. 7.3. Once the Agreement is terminated, all rights granted by ASTM to Supplier shall immediately cease and end. Supplier will immediately cease any representations or advertising, marketing or in any way referring to the terminated ASTM registration. However, Supplier s obligations under Paragraphs 3-6; 8.1-8.3 of this Agreement shall continue indefinitely beyond termination or nonrenewal. 8. Miscellaneous 8.1. Governing Law This Agreement shall be interpreted according to the laws of the Commonwealth of Pennsylvania, and Licensee agrees to personal jurisdiction in the Eastern District of Pennsylvania (federal) and/or state courts for any breach or disagreement concerning the terms of this Agreement. 8.2. Binding Arbitration and Consent to Pennsylvania Federal Court Both parties agree that any contractual dispute arising from, relating to, or concerning this Agreement shall be submitted to binding arbitration by the American Arbitration Association ( AAA ) at its Philadelphia, PA office, providing, however, in the event that ASTM claims the Participant has engaged in the unauthorized use of the approval, either may file a complaint immediately in a federal court in the Commonwealth of Pennsylvania for a temporary, preliminary, and permanent injunction. Participant consents to the personal jurisdiction and service of process from and the venue in all federal courts in the Commonwealth of Pennsylvania. 8.3. Notice All notices, demands, waivers, consents, and requests that may be or are required to be given by either party to the other under the terms of this Agreement shall be in writing and shall be sent by registered or certified mail, postage prepaid, return receipt requested, and addressed as follows: 3 of 6
If to Supplier: Name Address City Country Phone Company Address State Postal code E-mail If to ASTM: Tim Brooke Vice President ASTM International 100 Barr Harbor Drive West Conshohocken, Pa 19428 tbrooke@astm.org With a copy to: Thomas B. O Brien, Jr. Vice President & General Counsel ASTM International 100 Barr Harbor Drive West Conshohocken, Pa 19428 tobrien@astm.org 8.4. Execution in Counterparts For the convenience of the parties, this Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. 8.5. Assignment of Rights or Agreement Neither the Agreement nor any rights granted herein may be assigned, directly or indirectly, by any party hereto without the prior written consent of the other party, which may be denied in the other party s total discretion. This Agreement shall be binding upon and inure to the benefit of any assignee permitted hereunder. 8.6. Bankruptcy If either party shall become bankrupt or insolvent, or if either party s business shall be placed in the hands of a receiver or trustee, whether by voluntary act of such party or otherwise, this Agreement shall, at the option of the other party, immediately terminate. 8.7. Severability If any clause, provision, or term of this Agreement is declared illegal, invalid, or unenforceable under applicable present or future laws, then it is the intention of the parties that the remainder of this Agreement shall not be affected and that, in lieu of any such clauses, provision, or term, 4 of 6
there shall be added as a part hereof a substitute clause, provision, or term as similar in substance to such illegal, invalid, or unenforceable clause, provision, or term as may be possible. 8.8. Waiver Any waiver by any party of any right arising from any breach of any term of this Agreement shall not be construed as a continuing waiver of any other breach of the same term or any other term of this Agreement by the other party. 8.9. Independent Contractors The parties are independent contractors, and nothing herein contained shall constitute or be construed to create a partnership, agency, or joint venture between the parties. 8.10. Amendment No amendment or modification of this Agreement shall be valid and binding upon the parties unless made in writing and signed by the Senior Vice President of ASTM and an authorized representative of Participant. 8.11. Prior Drafts The parties acknowledge and agree that no interpretation of this agreement shall be based on any additions, deletions, or modifications to any prior draft of this Agreement, and that ASTM shall not be bound or precluded in the future by virtue of making any of the foregoing changes. 8.12. No Restraint on Trade Notwithstanding any of the foregoing covenants and agreements, it is expressly understood between the parties that nothing in this Agreement or any other agreement by and between parties shall be construed or interpreted as an agreement, promise, or commitment to limit, eliminate, or otherwise restrict the production of any Product covered by the Program. 9. No Warranty by ASTM ASTM PROVIDES THE SERVICES GRANTED HEREUNDER WITHOUT ANY WARRANTY OF ANY KIND. ASTM EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. UNDER NO CIRCUMSTANCES WILL ASTM BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, RESULTING FROM USE OF ANY PRODUCT(S), OR CONDUCT OR REPRESENTATIONS OF ANY USERS OF THE ASTM PROGRAM OR ITS WEBSITE, WHETHER ONLINE OR OFFLINE. ASTM MAKES NO REPRESENTATION ABOUT ANY PRODUCT AND EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OF THE SAME. 10. Limitation of Liability IN NO EVENT SHALL ASTM BE LIABLE TO SUPPLIER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS ARISING FROM, OUT OF, OR IN CONNECTION WITH THIS AGREEMENT OR THE ASTM PROGRAM, OR ANY ALLEGED BREACH OF ANY REPRESENTATION, WARRANTY, OR OTHER PROVISION HEREIN, REGARDLESS OF THE LEGAL THEORY UPON WHICH SUCH CLAIMS ARE BASED AND EVEN IF PARTICIPANT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. 5 of 6
11. ASTM Supplier Registration is not transferable; any such attempted transfer is void and of no effect. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement. Name Title Signature Date Return this fully completed Participant Agreement and supporting documents to ASTM (cert@astm.org) when you register and pay the fee on the ASTM website. 5 of 6