EXHIBIT 10.02
Product Manufacturing Agreement
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This Product Manufacturing Agreement (this "Agreement") is entered into as of
July 26, 2001 (the "Effective Date"), by and among MSU DEVICES INC., ("MSU")
located at 0000 X. Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, XX 00000, XXX, BIOSTAR
MICROTECH INT'L CORPORATION, ("BIOSTAR") located in 2FL, 000-0, Xxx-Xxxxx Xxxx,
Xxxx-Xxxx Xxxx, Xxxxxx Xxxxx, Xxxxxx.
WHEREAS, BIOSTAR is engaged in the design, and manufacture of internet access
devices;
WHEREAS, pursuant to the Product Design & Development Agreement (the "Product
Design & Development Agreement") entered into as of June 14, 2001 by and among
MSU and BIOSTAR and HIGH MATRIX CORP., MSU has engaged BIOSTAR AND HIGH MATRIX
to develop MSU's Internet Access Device (the "IAD") based on the specifications
set out herein;
WHEREAS, MSU wishes to engage BIOSTAR to manufacture the IAD;
NOW THEREFORE in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration (the receipt and sufficiency
of which are hereby acknowledged), the parties hereto agree as follows:
1. PRODUCTION
1.1 MSU agrees that, subject to the terms and conditions of
Section 3.1, BIOSTAR shall be the preferred manufacturer of
the IAD. BIOSTAR shall be responsible for the production of
the IAD from sample run to mass production all in accordance
with the specifications and requirements set out in the
Product Design and Development Agreement conforming to
IPC-A-610 Class 2 workmanship standards and quality standards
based on ANSI/ASQC Q900Z-1004 quality systems.
1.2 During the term of this Agreement MSU shall provided BIOSTAR
with written proposed orders (the "Proposed Orders"). The
Proposed Orders shall include the number of IADs to be
manufactured, any specifications or requirements which are
different than those set out in Section 1.1, the required
delivery date and a designated location where the IADs are to
be delivered.
1.3 Subsidiaries designated in writing by MSU from time to time,
shall have the right to perform and have the benefit of any
part of this Agreement or to discharge any of its obligations
under all or part of this Agreement. Notwithstanding any such
sub-contracting, MSU shall at all times remain liable to
BIOSTAR for all of its obligations under this Agreement and
for the acts and omissions of any such Subsidiaries as if they
were its own.
1.4 Notwithstanding the foregoing, MSU can seek an alternate
manufacturer if BIOSTAR cannot deliver the IAD according to
the terms set out in Section 3.1.
2. NAMED CUSTOMER LIST
During the term of this Agreement, BIOSTAR (and it's Affiliates) shall be
precluded from designing, developing or manufacturing any internet appliances
similar to or which compete with the IAD on behalf of any Named Customer (as
defined below) or an Affiliate or a Subsidiary of a Named Customer. MSU shall
provide BIOSTAR from time to time with a written list of a maximum of seven
Persons (the "Named Customers"). Initially the Named Customers shall include:
NetSite Communications Ltd., Tandy Corporation/Radio Shack, Rent America,
uDataNet Corporation, PowerOne Corporation and Office Depot Corporation. In the
event that MSU wishes to amend or add to the Named Customers, MSU will provide
written notice to BIOSTAR of the amendment or addition, provided however in no
event shall the new added Named Customers be with Persons with which BIOSTAR
currently has a signed contract and the number of Persons that make up the Named
Customers be greater than seven Persons, and provided further however that a
Named Customer cannot be an existing customer of BIOSTAR on the Effective Date.
BIOSTAR hereby confirms that none of the initial Named Customers are existing
customers of BIOSTAR. For purposes of this Agreement, (i) "Person" shall mean
any individual, corporation, partnership, limited liability company, limited
liability partnership, firm, joint venture, association, joint-stock company,
unincorporated organization, trust, trustee, executor, administrator or other
legal personal representative, regulatory body or agency, government or
governmental agency, authority or other entity howsoever designated or
constituted, (ii) an "Affiliate" of a specified Person, is a Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified, and (iii)
a "Subsidiary" is a Person whom the Named Customer own more than 50% interest
in.
Any failure by BIOSTAR to comply with the requirements of this paragraph shall
result in expense and damage to MSU. MSU has genuinely pre-estimated that it
will suffer losses equal to o [This confidential portion of the exhibit has been
omitted and filed separately with the Securities and Exchange Commission] per
Internet appliance or unit manufactured and delivered to a Named Customer its
Affiliates or Subsidiaries. In the event that BIOSTAR (or it's Affiliates) fails
to comply with the provisions of this
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paragraph, they will pay the o [This confidential portion of the exhibit has
been omitted and filed separately with the Securities and Exchange Commission]
per Internet appliance delivered to the Named Customer, its Affiliates or
Subsidiaries within ten days of such delivery.
BIOSTAR recognizes that the prohibitions contained in this paragraph shall be a
critical component of the business operation of MSU. BIOSTAR acknowledges that
the sums referred to above represent a genuine pre-estimate of the loss to be
incurred by MSU and is not a penalty. BIOSTAR further acknowledges that the sums
referred to in this paragraph represent the liability of BIOSTAR for the failure
to comply with this paragraph only, and shall not serve to limit the liability
of BIOSTAR for breach of any other obligation under this Agreement.
3. QUOTATION
3.1 BIOSTAR covenant that the price per IAD unit (the "Unit
Price") shall be o [This confidential portion of the exhibit
has been omitted and filed separately with the Securities
and Exchange Commission] FOB Factory and that such price
shall remain in effect until August 15, 2001. After August
15, 2001, in the event MSU shall deliver a Proposed Order,
BIOSTAR shall prepare and deliver to MSU a written notice
(the "Bid") which (i) is in accordance with the specified
terms set forth in the Proposed Order, (ii) is at a Unit
Price which is the same or lower than that reasonably to be
anticipated from any qualified third party, (iii) shall
contain a statement that in BIOSTAR's reasonable judgment
they have the capability to satisfy the requirements of MSU
for the manufacture and supply of the IAD's as set out in
the Proposed Order, and (iv) shall take into account any
price reductions or increases at the time of the preparation
of the Bid in the then prevailing market price for Memory
(as defined below); provided that in the event that the Unit
Price is greater than o [This confidential portion of the
exhibit has been omitted and filed separately with the
Securities and Exchange Commission] MSU shall have the right
to seek a competing manufacturer and have the IAD
manufactured with that manufacturer. In the event that a Bid
complies with (i), (ii), (iii) and (iv) of the preceding
sentence, within 5 Business Days of the receipt of the Bid,
MSU shall provid written notice (a "Confirmation Notice") to
BIOSTAR accepting the Bid and formally requesting the
manufacture of the number of IADs according to the
specifications set out in the Bid.
3.2 The price of Memory is included in the Unit Price specified
in the preceding paragraph; provided that the Unit Price is
subject to be changed (even after BIOSTAR has provided MSU
with the Bid) upon presentation to MSU of reasonable
evidence that the current market price of Memory has changed
to a price which is either o [This confidential portion of
the exhibit has been omitted and filed separately with the
Securities and Exchange Commission] higher or lower then the
current market price of Memory reflected in the preparation
of the Bid. BIOSTAR shall provide MSU with written notice of
any adjustment in the Unit Price within seven (7) Business
Days of the receipt of a Confirmation Notice. In no event
shall the Unit Price be adjusted under this Section 3.2
after the
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expiration of the seven (7) Business Day period following
the receipt by BIOSTAR of a Confirmation Order.
3.3 As the Unit Price offered by BIOSTAR herein is based upon
the assumption that MSU will manufacture under this
Agreement one hundred and twenty thousand (120,000) IAD
units on an annual basis, MSU shall use its reasonably
commercial efforts to issue Proposed Orders for an aggregate
amount of one hundred and twenty thousand (120,000) IAD
units each whole year during the term of this Agreement so
that BIOSTAR can negotiate with source vendors to reduce
various costs associated with the IAD.
4. DELIVERY
BIOSTAR covenant that the first five thousand (5,000) IADs manufactured pursuant
to this Agreement shall be delivered by the October 1, 2001 provided that the
enclosure of the units can be made available no later than September 15 2001.
The next fifteen thousand (15,000) IADs (after the delivery of the first five
thousand (5,000) IADs) manufactured pursuant to this Agreement shall be
delivered to the destination port designated by MSU in the Proposed Order no
later than eight (8) weeks after the receipt of the first Confirmation Order.
Thereafter BIOSTAR covenants that the IADs manufactured pursuant to this
Agreement shall be delivered to the destination port designated by MSU in the
Proposed Order no later than eight (8) weeks after the receipt of any
Confirmation Order.
BIOSTAR acknowledges and agrees that title to the IADs manufactured pursuant to
this Agreement shall pass to MSU upon delivery to the destination port
designated by MSU in the Proposed Order or Confirmation Notice, as applicable.
MSU, provided it is acting reasonably, may reject IADs which, (a) have been
materially damaged prior to delivery by BIOSTAR, or (b) do not meet, in all
material respects, the specifications provided by MSU and more specifically set
out in the Product Design & Development Agreement or a Proposed Order (the
"Rejected Products").
MSU will notify BIOSTAR in writing of Rejected Products within forty-five (45)
calendar days of their delivery and will return Rejected Products to BIOSTAR
within a further ten (10) calendar days. With respect to any Rejected Product,
MSU will be entitled to the rights and remedies set out in Section 7 with
respect to defective IAD.
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5. PAYMENT TERMS for MASS PRODUCTION
Within ten (10) Business Days of the receipt by BIOSTAR of a Confirmation Order,
MSU will wire transfer half of the cost of the Memory component to BIOSTAR to
secure the component price (the "Memory Advance Amount").
All payments for IADs manufactured hereunder pursuant to a Confirmation Notice
shall be paid within 30 days from the date the IADs were delivered to MSU as
specified in the Confirmation Notice.
Within five (5) Business Days of the execution of this Agreement by both
parties, MSU shall pay to BIOSTAR by wire transfer of immediately available
funds o [This confidential portion of the exhibit has been omitted and filed
separately with the Securities and Exchange Commission], which amount shall
represent a "good faith" attempt on the part of MSU to provide BIOSTAR with
funds to reduce their costs of manufacturing. BIOSTAR acknowledges that MSU has
prior to the execution of this Agreement advanced BIOSTAR o [This confidential
portion of the exhibit has been omitted and filed separately with the Securities
and Exchange Commission] to ensure delivery of the prototype of the IAD under
the Product Design & Development Agreement prior to July 26, 2001.
Within five (5) Business Days of the receipt by BIOSTAR of a Confirmation Order,
MSU shall deliver to BIOSTAR a letter of credit issued upon a major bank in the
United States to secure payments of amounts due hereunder, in an amount equal to
the amount payable for the IADs set out in such Confirmation Order less the
Memory Advance Amount.
6. Mechanical Design and Tooling Charge and Payment Terms
6.1 In addition to the manufacturing fees per unit as set out
either in section 3 or any Bid or any Confirmation Notice, MSU
agrees to pay BIOSTAR o [This confidential portion of the
exhibit has been omitted and filed separately with the
Securities and Exchange Commission] for the ID design,
mechanical design and tooling (the "ID Mechanical Design
Fee"). BIOSTAR shall use its reasonable commercial efforts
to have LiteOn refund the ID Mechanical Design Fee.
6.2 MSU agrees that the ID Mechanical Design Fee shall be paid by
wire transfer of immediately available funds in three
installments as follows:
(1) Within three (3) Business Days of the execution of
this Agreement by both parties, MSU shall pay by wire
transfer o [This confidential portion of the exhibit
has been omitted and filed separately with the
Securities and Exchange Commission] to BIOSTAR;
(2) Within three (3) Business Days of the receipt of
written notice from BIOSTAR of the completion of the
ID tooling, MSU shall pay by wire transfer o [This
confidential portion of the exhibit has been omitted
and filed separately with the Securities and Exchange
Commission] to BIOSTAR; and
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(3) Within three (3) Business Days of the receipt of
written notice from BIOSTAR of the successful
completion of the mechanical design and tooling test,
MSU shall pay by wire transfer o [This confidential
portion of the exhibit has been omitted and filed
separately with the Securities and Exchange
Commission] to BIOSTAR.
For purposes of this Agreement, "Business Day" means any day
(other than a day which is a Saturday, Sunday or legal holiday
in the State of New York) on which banks are open for business
in The City of New York.
7. WARRANTY
7.1 BIOSTAR warrants, that: (a) the IAD will be free from defects
in workmanship for an initial period of six (6) months from
the date on which the IADs are delivered to MSU (the "Full
Warranty Period"), (b) the IAD's electrical components will be
free from defects in workmanship for an initial period of
twelve (12) months from the date on which the IADs are
delivered to MSU (the "Electrical Component Warranty Period"),
(c) the Products will be assembled and supplied in accordance
with the terms of the Product Design and Development
Agreement, and the terms set out in Section 1.1 herein and (d)
the services hereunder, if any, will be performed in a
workmanlike manner. Any IAD that does not meet the warranty
described in this Section is referred to herein as a
"defective IAD", and the failure is herein called a "defect".
7.2 With respect to defects in workmanship, for the Full Warranty
Period, all the IADs with defects will be, at the option of
BIOSTAR, which option shall be exercised on commercially
reasonable grounds, and at BIOSTAR's cost, repaired or
replaced, or MSU shall be refunded or credited the unit price
of the defective IAD; provided that for the six month period
following the Full Warranty Period all the IADs with defects
will be repaired by BIOSTAR at BIOSTAR's cost but such costs
shall exclude any labor costs of BIOSTAR associated with the
repair of the defective IAD. During the Electrical Component
Warranty Period, any defect that is related to the IAD's
electrical components will be, at the option of BIOSTAR, which
option shall be exercised on commercially reasonable grounds,
and at BIOSTAR's cost, repaired or replaced, or MSU shall be
refunded or credited the unit price of the defective IAD.
7.3 All returned IADs shall include documentation describing the
nature of the defect. MSU will pay for the return of the
defective IAD to BIOSTAR's designated premises in Los Angeles,
USA (or if the IADs are in Europe, Hilden, Germany). BIOSTAR
will pay for the redelivery of the repaired or replaced to a
location designated in writing by MSU.
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7.4 NOTWITHSTANDING ANY OTHER PROVISION HEREOF, NOTHING IN THIS
AGREEMENT IN ANY WAY LIMITS OR EXCLUDES to BIOSTAR'S LIABILITY
FOR DEATH OR PERSONAL INJURY ARISING FROM ITS NEGLIGENCE NOR
ANY LIABILITY FOR BREACH OF ANY TERM IMPLIED BY STATUTE TO THE
EXTENT THAT SUCH IMPLIED TERMS CANNOT BY LAW BE LIMITED OR
EXCLUDED.
7.5 DISCLAIMER; LIMITATION OF LIABILITY FOR DEFECTIVE PRODUCTS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND SUBJECT TO
ANY RIGHTS MSU OR ITS CUSTOMERS MAY HAVE UNDER LAW THAT CANNOT
BE EXCLUDED UNDER THIS AGREEMENT, BIOSTAR MAKES NO OTHER
WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND
COMPONENTS, THEIR MERCHANTABILITY OR THEIR FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED HEREIN,
BIOSTAR'S SOLE AND EXCLUSIVE LIABILITY AND MSU'S SOLE AND
EXCLUSIVE REMEDY FOR DEFECTIVE PRODUCTS DURING THE WARRANTY
PERIOD SHALL BE AS SET FORTH IN SECTION 7.
8. CONFIDENTIALITY
8.1 BIOSTAR acknowledges that (i) all of the engineering data
sheets and specification list which MSU submitted to BIOSTAR
for engineering purpose and (ii) all of the design related
data sheets created by BIOSTAR for this specific project,
constitute valuable confidential information of MSU and shall
form part of the Confidential Information as defined below.
8.2 Each party agrees that all confidential information (whether
oral, written or digital) it obtains from the other party
under this Agreement, including, without limitation,
technology, trade secrets, patent applications, and business,
technical and financial information ("Confidential
Information") is Confidential Information of the disclosing
party (the "Disclosing Party"). The receiving party (the
"Receiving Party") agrees to (i) keep the Disclosing Party's
Confidential Information confidential and not disclose the
Disclosing Party's Confidential Information to any third party
without the prior written consent of the Disclosing Party,
(ii) use the Disclosing Party's Confidential Information only
as necessary to perform its obligations under this Agreement,
(iii) use at least the same degree of care in keeping the
Disclosing Party's Confidential Information confidential as
its uses for its own confidential information of a similar
nature, and (iv) limit access to the Disclosing Party's
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Confidential Information to its officers, directors, agents,
professional advisors, contractors and employees who have a
need to have access to the Confidential Information to perform
their employment obligations.
8.3 The Receiving Party may use or disclose the Disclosing Party's
Confidential Information to the extent such use or disclosure
is reasonably necessary to comply with this Agreement,
applicable governmental regulations or court order, provided
that the Receiving Party provides reasonable advance written
notice to the Disclosing Party of any such disclosure, uses
its reasonable efforts to secure confidential treatment of the
Disclosing Party's Confidential Information prior to
disclosure (whether through protective orders or otherwise)
and discloses only the minimum amount of information necessary
to comply with such requirements.
8.4 Notwithstanding anything else in this Agreement to the
contrary, the obligations contained in this Section 8 are to
remain in effect perpetually.
8.5 The foregoing agreements and covenants set forth in this
paragraph will be construed as being an agreement independent
of any other provisions in this Agreement. The existence of
any claim or cause of action of a party against the other
party, whether predicated on this Agreement or otherwise,
shall not constitute a defence to the enforcement by that
party of any of the covenants and agreements of this
paragraph. Each of the parties hereto acknowledge that its
failure to comply with the provisions of this paragraph will
cause irreparable harm to the other party which cannot be
adequately compensated for in damages, and accordingly
acknowledges that the other party will be entitled, in
addition to any other remedies available to it, to
interlocutory and permanent injunction relief to restrain any
anticipated, present or continuing breach of this Agreement.
8.6 The obligations contained in section 8.5 shall not apply,
however, to any information which:
a) the Receiving Party can demonstrate, is already in
the public domain or becomes available to the public
through no breach by the Receiving Party of this
Agreement;
b) was in the Receiving Party possession prior to
receipt from the Disclosing Party as proven by its
written records;
c) is independently developed by the Receiving Party as
proven by its written records;
d) is approved for release by the written agreement of
the Disclosing Party.
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9. TERM and TERMINATION
9.1 This Agreement shall commence as of the Effective Date and
shall continue in effect for a period of one (1) year, unless
terminated earlier pursuant to this Agreement. If either party
fails to notify the other party in writing one (1) month prior
to the expiration of this Agreement, this Agreement shall be
deemed to extend for one (1) more year automatically.
9.2 This Agreement may be terminated by either party immediately
upon the occurrence of any of the following events:
(1) if the other party breaches any material provision of
this Agreement and fails to cure such breach within
thirty (30) days after receiving written notice from
the non-breaching party describing such breach; or
(2) if the other party seeks protection under any
bankruptcy, receivership, trust deed, creditors
arrangement, composition or comparable proceeding, or
if any such proceeding is instituted against the
other (and not dismissed within ninety (90) days).
9.3 BIOSTAR may terminate this Agreement if (i) MSU fails to place
Proposed Orders for an aggregate amount of one hundred and
twenty thousand IADs (120,000) within one year of the
Effective Date; and (ii) except as set out in Section 1.3, MSU
violated the provision of Section 1.1 by authorizing another
company to manufacture the IAD, notwithstanding BIOSTAR's
compliance with Section 3.1.
10. GOVERNING LAW AND JURISDICTION
10.1 This agreement shall be governed by and construed in
accordance with the laws of the state of New York.
10.2 If a party hereto shall default (and shall not have cured such
default within any applicable cure periods provided for
herein) in any of its obligations under this Agreement, the
aggrieved party may proceed to protect and enforce its rights
in accordance with paragraph 10.3, whether for the specific
performance of any term contained in this Agreement or for an
injunction against the breach of any such term or in
furtherance of the exercise of any power granted in this
Agreement, or to enforce any other legal or equitable right of
such Party or to take any one or more of such actions.
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10.3 All disputes, disagreements, controversies, questions or
claims arising out of or relating to this Agreement, including
with respect to its formation, execution, validity,
application, interpretation, performance, breach, termination
or enforcement ("Disputes"), shall be determined by
arbitration administered by the American Arbitration
Association under its Commercial Arbitration Rules then in
effect, provided that:
(i) any hearing in the course of the arbitration shall be
held in English in New York, New York;
(ii) the number of arbitrators shall be one, and the
arbitrator shall be selected by the parties to the
arbitration (the "parties"), provided that if the
parties cannot agree on the arbitrator, Judicial
Arbitration and Mediation Services shall select the
arbitrator;
(iii) prior to the appointment of the arbitrator, the
parties may apply to the courts for interim relief. A
request for interim relief by a party to a court
shall not be considered to be incompatible with this
paragraph 10.3 or as a waiver of this provision;
(iv) any award or determination of the arbitrator shall be
final and binding on the parties and there shall be
no appeal on any ground, including, for greater
certainty, on the ground of alleged errors of law;
(v) the arbitrator shall not, without the written consent
of all parties, retain any expert;
(vi) an arbitrator may apportion the costs of the
arbitration, including the reasonable fees and
disbursements of the parties, between or among the
parties in such manner as the arbitrator considers
reasonable;
(vii) judgement on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof;
(viii) all awards for the payment of money shall include
prejudgment and postjudgment interest calculated in
accordance with the CPLR; and
(ix) all matters in relation to the arbitration shall be
kept confidential to the full extent permitted by
law, and no individual shall be appointed as an
arbitrator unless he or she agrees in writing to be
bound by this dispute resolution provision.
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10.4 No remedy referred to herein is intended to be exclusive, but
each shall be cumulative and in addition to any other remedy
referred to above or otherwise available to any Party. No
express or implied waiver by any Party of any default shall be
a waiver of any future or subsequent default.
11. INDEMNIFICATION
Each party ("Indemnifying Party") shall indemnify, defend and hold harmless the
other party, and its officers, directors, employees and agents ("Indemnified
Party"), from and against all loss, harm and liability, including, without
limitation, all costs, damages, settlements, claims, suits and expenses incurred
by any Indemnified Party arising out of any claim that Indemnifying Party's
products, materials, instructions, intellectual property or technology infringes
any third party's intellectual property rights; provided that the Indemnified
Party provides the Indemnifying Party with prompt written notice of any claim
for which it seeks indemnification under this Section 11, the Indemnifying Party
shall have sole control of the defense and any settlement of any such claim, and
the Indemnifying Party shall reasonably cooperate and provide reasonable
assistance in connection with the defense or settlement of any such claim.
12. GENERAL PROVISIONS.
12.1 Amendment and Waiver. Except as expressly provided herein, no
provision of this Agreement may be amended or waived without
the prior written consent of the parties hereto. No waiver of
any provision of this Agreement shall constitute a waiver of
any other provision nor shall any waiver of any provision of
this Agreement constitute a continuing waiver unless otherwise
expressly provided. The failure of either party to enforce its
rights under this Agreement at any time for any period shall
not be construed as a waiver of such rights.
12.2 Assignment. Neither party may transfer or assign (i) this
Agreement or (ii) the rights or obligations under this
Agreement (by operation of law or otherwise), without the
prior written consent of the other party, except that no such
consent shall be required for any assignment of this Agreement
or all (but not less than all) of the rights or obligations
under this Agreement, provided that such assignment is made to
a person who prior to or concurrently with the assignment
acquires, in any manner including in the course of realization
of a pledge or other security interest, all or substantially
all of the assets and business of such party; and provided
further that the assignee, including the lender or other
obligee, agrees in writing with the non assigning party that
it is bound by the obligations of the assignor contained in
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this Agreement. The terms and conditions of this Agreement
shall bind and inure to each party's respective successors and
permitted assigns.
12.3 Severability. If any provision of this Agreement is held to be
illegal or unenforceable, that provision shall be limited or
eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and
enforceable and the parties shall engage in good faith
negotiations to replace the provision declared invalid or
unenforceable with an enforceable provision, the economic and
commercial effect of which comes as close as possible to that
of the invalid or unenforceable provision that it replaces.
12.4 Relationship of Parties. The parties hereto expressly
understand and agree that the other is an independent
contractor in the performance of each and every party of this
Agreement and is solely responsible for all of its employees
and agents and its labor costs and expenses arising in
connection therewith. The parties are not partners, joint
venturers or otherwise affiliated and neither has any right or
authority to bind the other in any way.
12.5 Use of Name. EITHER PARTY SHALL NOT USE OR APPROPRIATE THE
OTHER PARTY'S COMPANY NAME, BRAND NAME, OR DIRECTOR'S OR
EMPLOYEE'S NAME UNLESS OTHERWISE OBTAIN THE OTHER PARTY'S
PRIOR WRITTEN CONSENT OR LICENSE.
12.6 Force Majeure. Except in connection with payment obligations,
neither party shall be liable or responsible to the other nor
be deemed to have defaulted under or breached this Agreement
for any failure or delay in the performance of any or all of
its obligations under this Agreement caused by or resulting
from Force Majeure or delay in acting by any governmental
authority or the other party hereto for so long as such
circumstances exist and continue to prevent that party's
performance. Each of the parties agrees to give notice
immediately to the other upon becoming aware of a Force
Majeure event. MSU shall have the right to terminate this
Agreement with immediate effect by serving written notice on
BIOSTAR where a Force Majeure event causes a failure or delay
in BIOSTAR's performance of any or all of its obligations
hereunder in a material manner for a period longer than 60
days. For purposes of this Agreement, "Force Majeure" shall
mean acts of God and the public enemy; the elements; fire;
typhoon; accidents; vandalism; sabotage; breakdowns or
accident to equipment; power failure; failure, delay or
disruption of transportation facilities; any laws, orders,
rules, regulations, acts or restraints of any government or
governmental body or authority, civil or military, including
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the orders and judgments of courts; and any other cause of any
kind whatsoever not reasonably within the control of a party
hereto.
12.7 Remedies. Except as otherwise expressly stated in this
Agreement, the rights and remedies of a party set forth herein
with respect to failure of the other to comply with the terms
of this Agreement (including, without limitation, rights of
full termination of this Agreement) are not exclusive, the
exercise thereof shall not constitute an election of remedies
and the aggrieved party shall in all events be entitled to
seek whatever additional remedies that may be available in law
or in equity.
12.8 Headings. Headings and captions are for convenience only and
are not to be used in the interpretation of this Agreement.
12.9 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
12.10 Additional Documents and Acts; Time of Essence. Each party
agrees to execute and deliver such additional documents and
instruments and to perform such additional acts as may be
necessary or appropriate to effectuate, carry out and perform
all of the terms and conditions of this Agreement and the
transactions contemplated by this Agreement. Time is of the
essence of this Agreement.
12.11 Entire Agreement. The parties agree that this Agreement and
the Product Design and Development Agreement, together with
any exhibits hereto and thereto, constitutes the entire
understanding and agreement with respect to the subject matter
hereof and supersedes all prior proposals, oral or written,
all negotiations, conversations, promises or discussions
between or among parties relating to the subject matter of
this Agreement and all past dealing or industry custom.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the Effective Date first set forth above.
For and On Behalf of: For and On Behalf of
BIOSTAR MSU DEVICES INC.
MICROTECH INT'L CORP.
By: /s/ Xxxxxx Xxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------------------ -------------------------------
Name: Xxxxxx Xxxx Name: Xxxxxxx X. Xxxxx
Title : Vice President/ IA Division Title: Vice President/ C.T.O.
