10.19
Contract between SMTC Manufacturing Corporation and Company dated
November 9, 2004
Standard SMTC Contract Rev 08.rtf
CONTRACT MANUFACTURING AGREEMENT
Between
SMTC Manufacturing Corporation
and
OnScreen Technologies, Inc.
November___, 2004
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Table of Contents
SECTION 1.0 - DEFINITIONS
SECTION 2.0 - SERVICES AND PRODUCTS TO BE PROVIDED BY SMTC (LICENSE RIGHTS)
SECTION 3.0 - TERM OF AGREEMENT
SECTION 4.0 - PRICING
SECTION 5.0 - OWNERSHIP OF PROPERTY
SECTION 6.0 - PRODUCT CHANGES; LIABILITY FOR INVENTORY
SECTION 7.0 - LIMITED WARRANTY AND LIMITATIONS OF DAMAGES
SECTION 8.0 - SCHEDULE OF DELIVERIES / ORDER REQUIREMENTS / FORECAST
SECTION 9.0 - FINANCIAL, TECHNICAL INFORMATION AND ASSISTANCE
SECTION 10.0 - ASSIGNMENT
SECTION 11.0 - INDEMNIFICATION
SECTION 12.0 - PROTECTION OF INTERESTS
SECTION 13.0 - RIGHT TO TERMINATE
SECTION 14.0 - EFFECT OF TERMINATION
SECTION 15.0 - FORCE MAJEURE
SECTION 16.0 - DISPUTE RESOLUTION
SECTION 17.0 - NOTICE
SECTION 18.0 - GENERAL PROVISIONS
This Contract Manufacturing Agreement ("Agreement") is entered into this day of
November 2004 ("Effective Date") between SMTC MANUFACTURING CORPORATION
("SMTC"), having its place of business at__________________________and OnScreen
Technologies, Inc. ("OnScreenTM") having its place of business at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS SMTC is engaged, inter a/ia, in contract electronic manufacturing and
provision of related services worldwide;
AND WHEREAS OnScreen1*11 has agreed to purchase and SMTC has agreed to provide
the services and materials hereinafter described in connection with the
manufacture of OnScreen'sTM products.
FOR VALUE RECEIVED, the parties agree as follows:
SECTION 1.0 - DEFINITIONS
In this Agreement, unless the context otherwise requires;
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1.1 "Assembly Charges" means the charges detailed in Schedules "1-5" to this
Agreement, including without limitation, charges for board level assembly,
in-circuit test, functional testing, system level assembly, system level
test, enclosures, interconnect, packaging and shipping from SMTC's plant
of manufacture as agreed by OnScreenrM'
1.2 "Confidential Information" means trade secrets, know-how, inventions
(whether patentable or not), ideas, improvements, materials, data,
specifications, drawings, processes, results, and formulae and all other
confidential business, technical and financial information of OnScreenTM,
including without limitation, the Specifications and the Product
components delivered to SMTC by OnScreenr".
1.3 "Customer Specific; Materials" means parts, components and other materials
listed in the Master ▇▇▇▇ of Material which as of a particular date are
not anticipated to be usable for products to be manufactured by SMTC for
customers other than OnScreenr""
1.4 "Economic Order Quantity" means the minimum quantity specified by a
supplier to obtain advantageous pricing for individual parts, components
and other materials listed in the Master ▇▇▇▇ of Material.
1.5 "Engineering Change Order" means any change initiated by OnScreenr" to the
Product or its design, manufacturing or content. No engineering changes
may be made without the prior written approval of OnScreenTM
1.6 "Excess Materials" means parts, components and other materials listed in
the Master ▇▇▇▇ of Material which as of a particular date are not
anticipated to be consumed within 30 days thereafter, based on Purchase
Orders or Forecasts in effect as of such particular date.
1.7 "First Month" has the meaning given in Section 8.1.
1.8 "Forecast" means a Product projection as described in Schedule "2" to this
Agreement and in Section 8.2.
1.9 "Intellectual Property" means processes and procedures developed or
acquired by SMTC for the manufacture of Products, including without
limitation, product binders, manufacturing process documentation,
photographs, custom tooling, fixtures, production line setup, line
layouts, manufacturing process improvements. Additionally, as relates to
SMTC's manufacturing of the Product: designs, drawings, plans, reports,
patterns, charts, graphs, operation sheets, practices, inventions,
computer software (including source code and object code), flow charts,
manuals, functional descriptions, operating data and other similar data
and information, including any patents, patent rights, trademarks,
trademark rights, trade names, trade name rights, copyrights, trade
secrets, industrial designs and any other intellectual property and
related applications for any of the foregoing. Ali of the above described
items that are purchased, developed or designed at a direct cost to
OnScreenT"', are excluded from this definition (hereinafter this exclusion
is referred to as "OnScreenr"' Intellectual Property").
1.10 "Inventory" means all parts, components and other materials that are
specifically required for the manufacture of Products and purchased by
SMTC on behalf of OnScreenr"'.
1.11 "Master ▇▇▇▇ of Material" means the parts, components and other materials
used in the Product described in this Agreement, as it may be modified
pursuant to Section 6.1.
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1.12 "Minimum Purchase Quantity" means the minimum purchase quantity available
from suppliers for parts, components and other materials listed in the
Master ▇▇▇▇ of Material.
1.13 "Non-cancelable, Non-returnable Materials" means parts, components and
other materials listed in the Master ▇▇▇▇ of Material for which suppliers,
manufacturers, or distributors have limited or restricted the purchasers'
rights, including rights of return, rescheduling and cancellation.
1.14 "Obsolete Materials" means parts, components and other materials listed in
the Master ▇▇▇▇ of Material which as of a particular date are anticipated
to have zero demand within 90 days thereafter, based on the current
Forecast in effect as of such particular date, and which are not
associated with Products currently manufactured by SMTC;
1.15 "Offline Products" has the meaning given in Section 4.4.
1.16 "Prime Rate" on any day means the annual rate of interest established by
the WSJ Prime Rate from time to time as its reference rate then in effect
for determining interest rates on U.S. dollar commercial loans made by it
in the United States of America.
1.17 "Product(s)" means OnScreen'sT^" products manufactured by SMTC hereunder
as defined in Schedule 1.17 attached hereto and made a part hereof which
Products shall change from time-to-time by mutual agreement.
1.18 "Product Technology" has the meaning given in Section 12.3.
1.19 "Property" means any parts, components and other materials, tooling,
fixtures; or test equipment (i) provided by OnScreenw to SMTC, or (ii)
purchased by SMTC on OnScreen'sT" behalf in connection with the
manufacture or assembly of the Product by SMTC, provided that OnScreenT11
has paid to SMTC all amounts owing in respect thereof.
1.20 "Purchase Order" means a purchase order provided by OnScreenm', to SMTC in
respect of Products.
1.21 "Services" means the provision by SMTC of all required parts, components
and other materials as listed in the Master ▇▇▇▇ of Material together with
all assembly services including, but not limited to board level assembly,
in-circuit and functional testing, packaging and shipping of finished
Product.
1.22 "Specifications" means, with respect to each Product, the Master ▇▇▇▇ of
Material, schematics, assembly drawings, process documentation, test
specifications, current revision number and approved vendor list as agreed
in writing by OnScreenT", and SMTC for such Product, and any written
revisions thereof.
SECTION 2.0 - SERVICES AND PRODUCTS TO 13E PROVIDED BY SMTC (LICENSE RIGHTS)
2.1 Subject to and in accordance with the terms and conditions of this
Agreement, OnScreenT"(degree) agrees to purchase the Services and the
Products exclusively from SMTC. For greater certainty, except as expressly
provided in this Agreement, OnScreenTM shall not purchase from any other
supplier products that are the same as or similar to the Products. Prior
to the time of OnScreenTM placing the first Purchase Order for Product,
the parties shall have mutually agreed on all Specifications, Assembly
Charges, and Services that are not in conformity with this Agreement.
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2.2 During the term of and subject to the terms and conditions of this
Agreement, OnScreenT"' grants SMTC a non-transferable, non-assignable,
non-exclusive, royaltyfree limited license, with a limited right to grant
sub(icenses only as set forth in this Agreement to use the OnScreenTM LED
technology and functional test systems associated with the OnScreenT"' LED
technology solely for the manufacture and testing of the Products in
accordance with the terms and conditions of this Agreement ("Licensed
Rights").
2.3 SMTC may sublicense the Licensed Rights to an approved subcontractor only
with OnScreenTM's prior written consent to such sublicense. Such
sublicense shall be solely for the purpose of manufacturing and testing of
the Products in accordance with the terms and conditions of this
Agreement. Such sublicense shall bind such subcontractor to the same
non-competition and non-disclosure terms and conditions of this Agreement.
2.4 SMTC shall serialize each finished LED panel with an indelible number
indicating as follows: XXIXX (month and year of manufacture), XXX (model
number), X (panel location within the 4 panel system, lettered top row,
left to right bottom row, left to right), XXXXXX (sequential manufacture
number). Additionally, SMTC shall serialize each finished RediAlertTM
stand with an indelible number indicating as follows: XXIXX (month and
year of manufacture), XXX (model number), XXXXXX (sequential manufacture
number). All optional equipment in addition to the LED panels and the
RediAlertT', stands manufactured or supplied by SMTC to OnScreenTM shall
exhibit an indelible series of serial numbers in fashion similar to those
described above in this paragraph. It is the Intention of the parties
hereto that the serialization as stated herein shall be both beneficial
and logical to both parties for the purpose of an orderly method to track
the major components of the Product such as panels, stands, and such other
components as are mutually agreed by the parties. Therefore, the
serialization system, as stated, may be modified from time-to-time in
order to fit the needs of both parties as those respective needs change
through the further development of existing Products and development of
additional Products.
SECTION 3.0 - TERM OF AGREEMENT
3.1 The term of this Agreement shall be three years from the Effective Date
unless terminated earlier pursuant to the provisions of Section 13.0
hereof. The term of this Agreement may thereafter be renewed for
successive terms by mutual agreement. After the three year term of this
Agreement and if the Agreement is not renewed as provided above, this
Agreement may be terminated by either party only after a six months
written notice to the other party. SECTION 4.0 - PRICING
4.1 OnScreenT"' agrees to pay SMTC for the Products, Assembly Charges and all
other aspects of the Services required in connection therewith as mutually
agreed from time-totime. Notwithstanding anything to the contrary in this
Agreement, Unless otherwise agreed by the parties in writing, all prices
quoted by SMTC shall remain in effect for a period of three months from
the date of written quotation, with update pricing provided to
OnScreen-'T" on a quarterly basis. Such prices shall be exclusive of all
applicable taxes. In the event that there is a change in market conditions
or pricing from suppliers in connection with any parts, components and
other materials to be purchased by SMTC, then either party may request
amendment to any quoted price by giving written notice to the other party
detailing the specific reasons for the requested pricing change. The
parties shall then use their reasonable commercial efforts to attempt to
negotiate, in good faith, any required amendment to any such quoted
price(s) to fairly reflect the change in
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market conditions. If such an amendment is negotiated by the parties, an
appropriate adjustment shall be made to the price for each unit of Product
incorporating any parts, components or other materials subject to the
price change from quoted prices.
4.2 The terms of payment by OnScreenT" shall be Net 30 days from date of
invoice or shipment, whichever is the last to occur. In the event
outstanding balances extend beyond 30 days, SMTC will work with OnScreen
to rectify the past due balances. If the overdue payments are not made
current to the satisfaction of SMTC, SMTC reserves the right to place all
shipments to OnScreenTu on hold until all past due amounts owing to SMTC
by OnScreenT" have been paid. Additionally SMTC reserves the right to
charge OnScreenTM interest on any overdue payment owing under this
Agreement at a rate per annum equal to the Prime Rate plus 2% per annum,
such interest to accrue and be calculated daily.
4.3 In the event that any Engineering Change Order or change to the Master
▇▇▇▇ of Material results in an increase or decrease in the price of, or
time required for, the performance of any aspect of the Services, the
parties will negotiate, in good faith, an appropriate adjustment to the
contract pricing and/or delivery schedule to reflect such changes. After
prior written approval by OnScreenTM, OnScreenT^ shall be responsible for
all costs related to obsolescence and additional set-up costs relating to
any Product changes requested by OnScreenTM. SMTC will use reasonable
commercial efforts to minimize such costs.
4.4 The parties agree that SMTC allocates a material scrap/shrinkage factor of
1 % of the unit cost of parts, components and other materials listed in
the Master ▇▇▇▇ of Material. This allocation will be applied to losses in
respect of parts, components and other materials during the normal
manufacturing process. This allocation will not be applied to finished
Products which do not pass normal testing ("Offine Products"). SMTC will
use reasonable commercial efforts to recover Offine Products, however it
is understood that manufacturing yields for finished goods rarely reach
100% in an automated manufacturing environment. All Products will be
manufactured in accordance with the IPC-A-610C international standard.
In the event OnScreen'sT" design of parts, components and other materials
and/or required procurement of parts, components or other materials from
the approved vendor list directly results in the normal yield
characteristics of a part, component or other material and/or assembly
process not being met, SMTC shall have the right to invoice OnScreenT"'
for any scrap and/or shrinkage cost in excess of the 1 % level and/or any
additional process assembly costs, provided that (1) SMTC has provided
OnScreenT" with written reports indicating SMTC's detection of the
fault(s) which is attributable to OnScreen'sTm design.
In the event SMTC's manufacturing/fabrication/assembly process and/or any
engineering initiated by SMTC directly results in the normal yield
characteristics of a part, component or other material and/or assembly
process not being met, SMTC shall immediately notify OnScreenT" of the
manufacturing/fabrication/assembly process and/or engineering deficiency
and shall account to OnScreen ' for all of the non-salvageable parts and
components.
During the normal manufacturing process, it is possible that Products
produced in accordance with all Specifications will not pass Product
testing. After prior written approval of OnScreenT"', SMTC reserves the
right to use commercially reasonable efforts to repair and or rework the
Product. In the event it is unfeasible to repair the Product to a
shippable state, SMTC will invoice OnScreenTM after a period of 30 days
for the Product.
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4.5 SMTC's quoted Assembly Charges are based on standard deliveries of parts,
components and other materials available to the electronics industry, In
the event that certain parts, components or other materials are on
allocation or in the event that additional costs are incurred in order to
procure parts, components or other materials to meet changes in
OnScreen'sTM Forecasts that are beyond the agreed upon allowable variance
in scheduling referred to in Section 8.1, then, after prior written
approval by OnScreen"', such additional costs shall be invoiced to
OnScreenTM. In addition, OnScreenTm shall be responsible for any
additional costs resulting from Engineering Change Orders, replacement of
suppliers requested by OnScreenT"" in writing or special transportation of
Products requested by OnScreenTM in writing, including without limitation,
all applicable freight charges, duties, taxes and brokerage fees, and
OnScreenTM shall indemnify and save harmless SMTC in connection with such
costs.
4.6 Both SMTC and OnScreenT"^ shall proactively plan and implement cost
reduction programs, including cost reductions to the parts, components and
other materials, Products or assembly processes. OnScreenTM will receive
100% of all demonstrated cost reductions initiated by OnScreenTM in the
form of an immediate reduction in the pricing charged to OnScreenT'" for
the Services, exclusive of parts, components or other materials on hand,
in transit, or on order prior to the cost reduction. Upon implementation
of any engineering, design, manufacturing, fabrication or production cost
reductions which have been initiated by SMTC and approved by OnScreen"",
SMTC will retain 50% of the demonstrated cost reduction for the first 12
months with the balance applied as a reduction to the pricing charged to
OnScreenTM for the Services. After the said 12 months, all such cost
reduction shall be credited to OnScreenTM.
SECTION 5.0 - OWNERSHIP OF PROPERTY
5.1 The parties acknowledge and agree that the Property, OnScreen'M
Intellectual Property and Specifications are owned by OnScreenT"' and
shall not be disposed of in any way without OnScreen'sTM prior written
authorization. SMTC agrees to act in a commercially reasonable and prudent
manner in its-handling and storage of Property so as to minimize any loss
or damage thereto. SMTC further agrees to segregate the Property from
other materials in SMTC's possession and ensure that at all times the
Property is clearly identified as being the property of OnScreenThd. The
parties acknowledge and agree that the Property shall be independently
insured by OnScreenTM.
5.2 All OnScreenTM' intellectual Property and any tooling and/or equipment
along with the procedures and processes necessary to operate and
understand the said tooling and equipment supplied by OnScreenTM
("OnScreenTM' Property") or developed or procured by SMTC pursuant to this
Agreement at OnScreen's expense, shall remain the property of OnScreen and
shall: (i) be clearly marked or tagged as the property of OnScreenTM, (ii)
be and remain personal property, and not become a fixture to real
property, (iii) be subject to inspection by OnScreenTM at any time, (iv)
be used only in filling purchase orders from OnSdreenT'4, (v) be kept free
by SMTC of liens and encumbrances, (vi) not be modified in any manner by
SMTC without the prior written approval of OnScreenTM and (vii) be
maintained by SMTC in accordance with OnScreen'sTM Maintenance Procedures.
OnScreenTM shall retain all rights, title and interest in the OnScreenTM
Property, and SMTC agrees to treat and maintain the OnScreen'M Property
with the same degree of care as SMTC uses with respect to its own valuable
equipment. SMTC shall bear all risk of loss or damage to OnScreenTm
Property until it is returned to OnScreenTM. Upon OnScreen'sT"" request,
SMTC shall deliver all OnScreen m Property to OnScreenTM in good
condition, normal wear and tear excepted, without cost to OnScreenTM
(exclusive of freight costs); OnScreenTm shall determine the manner and
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procedure for returning the OnScreenTM Property, and shall pay the
corresponding freight costs. SMTC waives any legal or equitable right it
may have to withhold OnScreenTM Property, and SMTC agrees to execute all
documents, or instruments evidencing OnScreen's ownership of the
OnScreenTM Property as OnScreenTM may from time to time request. All
processes and procedures other than those described above as OnScreen'hM
Property, may be retained by SMTC provided, however, that SMTC shall not
uses any of such processes and/or procedures in any manner, either
directly or indirectly, for the production, manufacture or sale of any
product that competes with any of the LED products of OnScreenTM.
5.3 SMTC shall provide to OnScreenTM, at no charge to OnScreen iM, an annual
inventory before December 31 taken during the month of December, of ail
Excess Material, Inventory, Products and Property in the possession of
SMTC.
5.4 Upon request by OnScreenTM, from time to time, and with at least one (1)
business day notice and during normal business hours, SMTC will grant
access to its manufacturing facilities and records to OnScreen inspectors.
SMTC shall allow such inspectors to inspect the manufacturing and quality
control, testing operations, compliance procedures and records relating to
the Products, as well as Inventory levels to ensure that SMTC can meet
OnScreen's future orders for Products, and is otherwise satisfying its
obligations under this Agreement. SMTC shall promptly implement corrective
action to remedy deficiencies identified by OnScreen during such
inspections or in order to comply with the Specifications and this
Agreement.
SECTION 6.0 - PRODUCT CHANGES; INVENTORY; PRODUCT MANAGEMENT
6.1 The introduction of new designs or the obsolescence of prior designs as
agreed to by the parties from time-to-time may require Engineering Change
Orders that may result in changes to the Master ▇▇▇▇ of Material. Both
parties shall use reasonable commercial efforts to accommodate such
changes, subject to Section 4.3. 6.2 Inventory held by SMTC on behalf of
OnScreenTM to meet the finished Product volumes contained in the Purchase
Orders and Forecasts, that:
(i) are Customer Specific Materials or Non-Cancelable, Non-Returnable
Materials, or
(ii) are subject to Minimum Purchase Quantity or Economic Order Quantity
requirements,
that become Excess Materials or Obsolete Materials due to any Engineering
Change Orders, introduction of new designs, obsolescence of prior designs,
changes in the Master ▇▇▇▇ of Material, Forecast changes, variations,
reschedules, cancellations, production delays, termination of this
Agreement (other than by OnScreenTM pursuant to Section 13.1), or the end
of the life of a Product, any of which that are Initiated by or caused by
OnScreenTM, shall become OnScreen'sTM responsibility. Any such Inventory
shall be purchased outright by OnScreenTM or prepaid by OnScreenTM to the
total dollar value thereof and moved to a "Customer Owned" location within
SMTC, within the month in which the Inventory becomes Excess Materials or
Obsolete Materials. Any Excess Materials or Obsolete Materials subject to
purchase or prepayment by OnScreenTM will be sold by SMTC to OnScreenTM at
raw material cost plus a 5% overhead recovery fee, plus any restocking fee
imposed by the suppliers, manufacturers, or distributors of such
Inventory. SMTC shall use reasonable effort to assist OnScreenTM in
selling or otherwise disposing of said Excess Materials or Obsolete
Materials at no charge to OnScreenT1-1 in addition to the 5% overhead as
mentioned above herein. A list detailing the Customer Specific Materials,
Non-Cancelable, Non-Returnable Materials, Excess Materials and Obsolete
Materials will be provided to OnScreenT"' by SMTC on a monthly basis. SMTC
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shall notify OnScreenTM in writing of any such pending charges prior to
the transaction involving such Inventory.
In the event that such Excess Materials or Obsolete Materials are sold to
OnScreenTM at raw material cost plus a 5% overhead recovery fee and are
later deemed by SMTC to be reusable in the manufacturing process, then SMC
shall repurchase the said Excess Materials or Obsolete Materials from
OnScreenT"' at raw material cost plus a 5% overhead recovery fee such that
the purchase price and overhead recovery fee from SMTC to OnScreenT"'
shall be equal to the purchase price and overhead recovery fee from
OnScreenTM to SMTC.
SECTION 7.0 - LIMITED WARRANTY AND LIMITATIONS OF DAMAGES
7.1 SMTC warrants that the Products will conform to OnScreen'sT"' applicable
Specifications and will be free from defects in workmanship, for a period
of one year from the date of delivery to OnScreenTM. This warranty does
not apply to: (a) defects resulting from OnScreen'sTm design of the
Products, (b) Products used in violation of written procedures or
instructions furnished by SMTC, or (c) Products that have been abused,
damaged, altered, misused or improperly installed, modified or repaired by
any person or entity after title passes to OnScreenT"'. Notwithstanding
anything else in this Agreement, SMTC assumes no liability for or
obligation related to the performance, accuracy, Specifications, failure
to meet Specifications or defects of or due to tooling, designs or
instructions produced or supplied by OnScreenT"'. Upon any failure of a
Product to comply with the foregoing warranty, SMTC's sole obligation, and
OnScreen'sT"9 sole remedy, Is for SMTC, at its option, to promptly repair
or replace such unit and return it to OnScreenT"' or the customer of
OnScreenT"', freight pre-paid. In order to obtain service under this
warranty", the customer of OnScreenTm shall: (a) contact OnScreenTM for
initial minor remedial discussions and instructions; if these discussions
and instructions are not successful in solving the issue, then (b)
OnScreenT"' shall contact SMTC to obtain a Return Material Authorization
(RMA) number along with specific shipping directions, freight charges to
be paid by SMTC. OnScreen will then provide the RMA number to the customer
along with the shipping instructions. Under this warranty, SMTC will use
reasonable commercial efforts to provide the OnScreenT"' customer with a
repaired or replaced Product at the option and expense of SMTC, freight
prepaid by SMTC, within five days of receipt of a defective Product. All
communications with OnScreen's"M customer is the sole responsibility of
OnScreenTM for all warranty issues.
7.2 SMTC further represents, warrants and covenants to OnScreenTM as follows:
(a) The Services shall be provided by SMTC in a professional,
workmanlike and timely manner.
(b) SMTC shall provide board level assembly and testing in accordance
with the Specifications and mutually agreed testing procedures
(c) SMTC shall comply with all applicable laws and regulations in
providing the Services.
(d) SMTC shall manufacture the Products in ISO 9002 certified facilities
and notify OnScreenTM should there be any change in the
certification status. The parties shall identify a standard quality
reporting method of quality data and process response mechanisms
which will be provided to OnScreenTM on an ongoing basis.
(e) SMTC has been granted or issued all permits required for the
storage, handling, and disposal of all materials or hazardous waste
used by SMTC in the performance of this Agreement. SMTC has
implemented programs necessary to monitor and maintain all required
licenses and permits and to prevent releases of the material to the
environment. SMTC's employees shall have been trained to
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properly, safely, and legally (in accordance with all applicable
local, state, and federal laws and regulations) handle hazardous
material and wastes. SMTC shall notify OnScreenTM in writing,
immediately upon discovery of any regulatory action taken or
initiated against SMTC, whether or not such action relates to or
arises out of this Agreement, that may impact SMTC's ability to
deliver the Products. Regulatory compliance and management of SMTC's
facilities and processes is strictly the responsibility of SMTC and
OnScreenTM has no express or implied responsibility for the same.
7.3 Notwithstanding any prior inspection or payment by OnScreenT"1,
OnScreenT"" may reject any portion of any shipment of Products that do not
conform to the Specifications as determined by OnScreen following quality
control tests and inspection or as otherwise found to be defective. Any
Products so returned to SMTC shall, at the option and expense of SMTC, be
repaired or replaced within five (5) business days of receipt by SMTC of
the rejected Product; provided that: (i) OnScreenTM obtains a Return
Material Authorization ("RMA") from SMTC prior to returning the Products,
SMTC shall provide OnScreen with a RMA promptly upon request and (ii) the
failure analysis conducted by OnScreen shall accompany the Product.
7.4 Rejection of any portion of any shipment of Products which do not conform
to the Specifications as determined by OnScreen's End Customer and
confirmed by OnScreen' after following the procedure described in Section
7.1 above, shall be returned to SMTC in accordance with the procedure as
set forth in Section 7.1 above.
7.5 SMTC agrees to pass through to OnScreen the warranty, if any, originally
provided to SMTC by the manufacturer of such components.
7.6 THE PARTIES MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO
THIS AGREEMENT AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, DISCLAIM ALL OTHER
WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ARISING FROM A COURSE OF
DEALING, USAGE OR TRADE PRACTICE.
7.7 NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE OR
CONTINGENT LOSSES OR DAMAGES ARISING UNDER THIS AGREEMENT, INCLUDING LOSS
OF REVENUE, PROFIT, OR FAILURE TO REALIZE EXPECTED SAVINGS, EVEN IF
ADVISED OF THE POSSIBILITY THEREOF. THE PROVISIONS OF THIS SECTION SHALL
APPLY ONLY IN RESPECT OF ANY CLAIMS, DEMANDS, ACTIONS, LOSSES, DAMAGES,
COSTS OR EXPENSE OF SMTC AND ONSCREENTM OR ANY OTHER PERSON OR ENTITY,
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS, TRADE NAMES, INDUSTRIAL
DESIGNS, TRADE SECRETS OR OTHER SUCH RIGHTS, BREACH OF A FUNDAMENTAL TERM,
FUNDAMENTAL BREACH OR OTHERWISE.
7.8 OnScreen may authorize SMTC to perform repair work on out-of warranty
Products. Prices for this rework must be approved in writing by OnScreen
and authorized by a Purchase Order. Prices for this repair shall be by
mutual written agreement of the Parties. SMTC warrants that repaired
out-of-warranty Products shall be of good material and free of workmanship
defects, for a period of ninety (90) days after delivery to OnScreen's
designated location.
SECTION 8.0 - SCHEDULE OF DELIVERIES I ORDER REQUIREMENTS I FORECAST
____________________ ___________________
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8.1 OnScreenTM will provide and maintain non-cancelable Purchase Orders in
compliance with the following forecast table on or prior to the 15th day
of each month, which will set forth specifics as to required quantities
and delivery dates. Each Purchase Order will cover the period beginning
with the first day of the month following the delivery of such Purchase
Order (the "First Month") and will also include the first and second
months after the First Month. Upon acceptance and acknowledgement of
OnScreen'sT" Purchase Orders by SMTC, SMTC will be obligated to
manufacture and deliver to OnScreen"I' on the shipping date designated in
the Purchase Order, and OnScreenT"" will be firmly and irrevocably
obligated to buy from SMTC, the Products set forth in the Purchase Orders.
Purchase Order and Forecast revisions are subject to the time constraints
and allowable quantity variations identified in the chart below. At the
completion of manufacturing the Products, SMTC may hold finished products
for no more than 15 days beyond the original scheduled delivery date.
Thereafter, SMTC will either invoice OnScreenT" and ship the finished
Products or will make arrangements at OnScreen's7M request to storelhold
the finished Products on behalf of OnScreenTM for a total period no
greater than 30 days from original scheduled shipment date at no storage
cost to OnScreenT"".
ALLOWABLE VARIANCE FROM FORECAST
------------------------------------------------------------------------------------------------------------
Allowable % Cancelable % Reschedule Maximum
Quantity Increase Reschedule Days
------------------------------------------------------------------------------------------------------------
First month 0% 0% 0 days
------------------------------------------------------------------------------------------------------------
First month + 1 20% 0% 0% 0 days
------------------------------------------------------------------------------------------------------------
First month + 2 50% 50% 50% 30 days
------------------------------------------------------------------------------------------------------------
First month + 3 100% 100% 100% N/A
------------------------------------------------------------------------------------------------------------
First month + 4 100% 100% 100% NIA
------------------------------------------------------------------------------------------------------------
First month + 5 100% 100% 100% NIA
------------------------------------------------------------------------------------------------------------
In the event that OnScreen'sT"" actual demand exceeds the variances shown
in the table above resulting in SMTC incurring additional costs to
manufacture, OnScreen rm shall issue a separate Purchase Order to cover
such costs. SMTC will endeavor to minimize any additional costs.
8.2 On or prior to the 15th day of each month, OnScreenTM will provide SMTC
with a rolling Forecast of its estimated monthly requirements of Products
covering the nine months after the issued Purchase Orders, i.e.,
commencing with the third month after the First Month up to and including
the eleventh month after the First Month.
8.3 SMTC will execute a material procurement strategy in accordance with the
Purchase Orders and Forecasts issued by OnScreenT"' and as dictated by
component lead-times. Any changes will be in accordance to details as
outlined in Section 8.0 and any resultant liabilities for materials will
be per section 6.0 of this Agreement.
8.4 In the event that OnScreenT"^ issues any Engineering Change Orders or any
similar orders or notices requiring any change in the Products listed in
OnScreen'sT", Purchase Orders that affects the agreed upon delivery date,
SMTC shall have the right to invoice and ship or invoice and hold the
finished Products, prior to completion of the requested Engineering Change
Orders, 15 days after'the original schedule date. All assembled and work
in process Product requiring treatment by this Engineering Change Order
will be considered rework. Any rework charges will be calculated by SMTC
and will be subject to agreement by OnScreenT"d and SMTC will execute such
rework upon receipt of a rework Purchase Order from OnScreenm.
____________________ ___________________
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8.5 The parties shall have weekly telephonic conference meetings among SMTC
project team members and OnScreenTM projects management personnel
regarding inventory raw material by component and finished Product update
and inventory management.
8.6 The parties shall have quarterly, or more often if necessary, telephonic
conference meetings among SMTC project team members and OnScreenT"'
projects management personnel regarding current status and outstanding
issue resolution relating to Specifications, Intellectual Property,
OnScreenTM Intellectual Property, Product, fabrication, manufacturing,
scheduling, component supply, material source, warranty matters, shipping
and such other issues as are necessary for production of the Product.
SECTION 9.0 - FINANCIAL, TECHNICAL INFORMATION AND ASSISTANCE
9.1 Each party agrees to provide the other party with relevant information
concerning its current financial information upon request, provided that
no such request shall be made more than once per calendar quarter. The
parties may use this information for the sole purpose of an on-going
financial review of the operations of the other party. Such information
shall be treated as Confidential Information for the purposes of this
Agreement.
9.2 The parties agree to mutually advise each other from time to time without
charge with respect to all technical information relating to the Product.
SECTION 10.0 -ASSIGNMENT
10.1 Neither party may assign its rights or obligations under this Agreement
without the prior written consent of the other party, which consent may
not be unreasonably withheld or delayed.
10.2 In the event OnScreenTM is sold, merged or involved in any other type of
corporate restructuring which results in a change of control, this
Agreement shall remain in effect as though no change occurred.
SECTION 11.0 - INDEMNIFICATION
11.1 SMTC shall use commercially reasonable efforts to procure from vendors of
parts, components and other materials used in the Products, indemnity
protection extending to OnScreenTm, including the defense of actions and
payment of all claims, costs, damages, judgments and reasonable legal fees
resulting from or arising out of any alleged and/or actual infringement or
other violation of any patents, patent rights, trademarks, trademark
rights, trade names, trade name rights, copyrights, trade secrets,
industrial designs, proprietary rights and processes or other such rights
with respect to all parts, components and other materials procured by SMTC
under this Agreement.
11.2 In the event that SMTC is unable to secure the indemnity contemplated
under Section 11.1, for any part, component or other material, SMTC shall
notify OnScreenTA(degree) and allow OnScreenT"' to participate in
discussions with the supplier in question with regard to securing such
indemnification. If the indemnification is still not available after this
process, OnScreenT"' may then approve the part, component or other
material without indemnification or ask that SMTC source the part,
component or other material elsewhere. OnScreenT"' will be responsible for
any change in price of the part, component or other material in question.
____________________ ___________________
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11.3 OnScreenT"' hereby accepts responsibility for, and shall defend,
indemnify, and hold harmless SMTC, its officers, directors, employees,
agents, and shareholders against, any liabilities (including, without
limitation, costs and expenses of litigation, reasonable legal fees,
settlements, and damages) arising from defects in the Specifications or
the design of the Products as supplied by OnScreenT"', and from any
alleged and/or actual infringement or other violation of any patents,
patent rights, trademarks, trademark rights, trade names, trade name
rights, copyrights, trade secrets, industrial designs, proprietary rights
and processes or other such rights by the Products. SMTC shall promptly
notify OnScreen"m of any claims related to such indemnification and no
such claim shall be settled without OnScreen'sTM prior written consent.
11.4 SMTC hereby accepts responsibility for, and shall defend, indemnify, and
hold harmless OnScreenT"', its officers, directors, employees, agents, and
shareholders against, any liabilities (including, without limitation,
costs and expenses of litigation, reasonable legal fees, settlements, and
damages) arising from defects In the manufacturing and assembling process
of the Products as supplied by SMTC, and from any alleged and/or actual
infringement or other violation of any patents, patent rights, trademarks,
trademark rights, trade names, trade name rights, copyrights, trade
secrets, industrial designs, proprietary rights and processes or other
such rights as relates to the manufacturing and assembling process
designed or utilized by SMTC in the fabrication of the Products.
OnScreenT"' shall promptly notify SMTC of any claims related to such
indemnification and no such claim shall be settled without SMTC's prior
written consent.
SECTION 12.0 - PROTECTION OF INTERESTS
12.1 SMTC shall, during the term of this Agreement and for a period of three
years thereafter: (a) hold in confidence and not disclose or make
available to any third party any such Confidential Information obtained
directly or constructively from OnScreenTM unless so authorized in writing
by OnScreenT"'; (b) exercise all reasonable efforts to prevent third
parties from gaining access to the Confidential Information; (c) not use,
directly or indirectly, the Confidential Information in any respect of its
business, except as necessary to perform the Services contemplated by this
Agreement; (d) restrict the disclosure or availability of the Confidential
Information to those suppliers and subcontractors and others who have read
and understand this Agreement and who have a need to know the information
in order to achieve the purposes of this Agreement without the prior
consent of OnScreenm; (e) not modify any of the Confidential Information
without the prior written consent of OnScreenT"; (f) take such other
protective measures as may be reasonably necessary to preserve the
confidentiality of the Confidential Information; and (g) relinquish to
OnScreenT" and require all of its employees, officers, and agents, to
relinquish to OnScreenTm^ all rights it may have in any matter, such as
drawings, documents, models, samples, photographs, patterns, templates,
molds, tools or prototypes, which may contain, embody or make use of the
Confidential Information; promptly deliver to OnScreenT"' any such matter
as OnScreenTM may direct at any time and not retain any copies or other
reproductions thereof.
12.2 Confidential Information will not include any information that: (a)
becomes publicly known without fault or breach on the part of SMTC; (b)
OnScreen"" provides to others without restriction on disclosure; (c) SMTC
obtains from a third party without breach of a nondisclosure obligation
and without restriction on disclosure; (d) is already known to SMTC prior
to its disclosure by OnScreenT"d or (e) must be disclosed by SMTC by
statutory or regulatory provision, or court order, provided, however, that
SMTC provides notice thereof to OnScreenT"^ together with the statutory or
regulatory provision or court order on which such disclosure is based, as
soon as practicable prior to such disclosure.
____________________ ___________________
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12.3 SMTC recognizes and agrees that the Products may incorporate certain
Confidential Information which is proprietary to OnScreenTM, including,
without limitation, software source and object codes ("Product
Technology"). All Product Technology is and shall remain the property of
OnScreenTM. Subject to the provisions of Section 12.2, during the term of
this Agreement and for a period of three years thereafter, SMTC will not
(1) directly or indirectly, manufacture, process, label, package, supply,
or sell, any Product, or other products utilizing Product Technology,
except as contemplated by the terms of this Agreement; or (it) carry on or
engage in, directly or indirectly, on its own or through any individual,
partnership, company, association, or entity, any business or other
activity utilizing Product Technology.
12.4 All OnScreenTI-" Intellectual Property will remain the sole and exclusive
property of OnScreen TM. SMTC shall, during the term of this Agreement and
at alt times thereafter, keep in confidence all of the Intellectual
Property and OnScreenTM Intellectual Property received and developed by
it. SMTC shall not use, replicate, distribute, share or disclose to any
person or entity the Intellectual Property and OnScreenT"" Intellectual
Property, other than as may be expressly permitted by a separate written
agreement signed by OnScreenT". SMTC shall take reasonable steps to
prevent unauthorized disclosure or use of the Intellectual Property and
OnScreenT" Intellectual Property and to prevent it from falling into the
public domain or into the possession of unauthorized persons. Each of the
parties to this Agreement agrees upon request to execute any further
documents or instruments necessary or desirable to carry out the purpose
or intent of this Agreement including an assignment of Intellectual
Property and DnScreenTM Intellectual Property rights, provided that no
additional obligations or costs shall be incurred as a result of such
document or instrument.
12.5 Within the period of 12 months after the last day that OnScreenT"" has
requested work under this Agreement, OnScreenT"' shall make no offers of
employment or consulting engagements to SMTC personnel (which, for the
purposes of this Section 12.5, shall include full time, part time,
permanent and temporary employees and independent consultants and
contractors), and shall ensure that no affiliate of OnScreenT"', to which
OnScreenT"' has provided information about such personnel, shall make any
such offers to SMTC personnel. Should any such personnel be hired or
engaged by OnScreenTM or such an affiliate within such time period,
OnScreenTM agrees to pay as liquidated damages to SMTC a fee equal to 75%
of the total annualized compensation to such personnel.
12.6 Within the period of 12 months after the last day that OnScreenN has
requested work under this Agreement, SMTC shall make no offers of
employment or consulting engagements to OnScreenT"' personnel (which, for
the purposes of this Section 12.5, shall include full time, part time,
permanent and temporary employees and independent consultants and
contractors), and shall ensure that no affiliate of SMTC, to which SMTC
has provided information about such personnel, shall make any such offers
to OnScreenTM personnel. Should any such personnel be hired or engaged by
SMTC or such an affiliate within such time period, SMTC agrees to pay as
liquidated damages to OnScreenT"(degree) a fee equal to 75% of the total
annualized compensation to such personnel.
SECTION 13.0 - RIGHT TO TERMINATE
13.1 In the event that either party is in material breach of any of its
obligations under this Agreement, then the other party may give written
notice of such breach to the defaulting party and request remedy of such
breach. If the party in breach fails to remedy such breach within 30 days
after the date of notice then this Agreement may be terminated immediately
by written notice of termination given by the complaining party,
____________________ ___________________
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13.2 Notwithstanding the provisions contained in Section 13.1, either party may
terminate this Agreement by written notice to take effect immediately upon
receipt thereof by the other party in the event that the party receiving
notice has become bankrupt or insolvent or has made an assignment for the
benefit of creditors, or a receiver is appointed for its business or a
voluntary or involuntary petition of bankruptcy is filed, or proceedings
for the reorganization of the party are instituted.
SECTION 14.0 - EFFECT OF TERMINATION
14.1 Upon termination of this Agreement:
(a) OnScreenTM shall pay to SMTC, in compliance with the terms of
paragraph 4.2 of this Agreement, all monies due and owing pursuant
to this Agreement, including without limitation, any remaining
payments for Inventory, Property, work in process and finished
Products then being held by SMTC
(b) At the option of OnScreenT1', and provided that OnScreenTM has made
the payments required under Section 14.1 (a) and is otherwise not in
breach of this Agreement, SMTC shall continue to provide the
Services and manufacture the Products as contemplated under this
Agreement for such term as may be agreed upon by the parties, except
that payment to SMTC for Products and Services shall be on such
consignment or value added basis as may be agreed upon by the
parties.
(c) Promptly after the later of the termination of this Agreement and
the termination of the ongoing arrangement referred to in Section
14.1(b):
(i) the parties shall facilitate the transfer of all of Property
then being held by SMTC to OnScreenT"' including all
documentation relating thereto;
(ii) SMTC shall return all original design drawings, copies of
drawings, Specifications, written descriptions, and other
recorded technical information furnished to SMTC by
OnScreenT"' pursuant to this Agreement;
(iii) SMTC shall transfer to OnScreenT"' all OnScreenm Intellectual
Property developed by SMTC for use in production of the
Products as described in p 12.4 and otherwise described in
this Agreement;
(iv) OnScreenT"^ shall transfer to SMTC all Intellectual Property
developed by SMTC for use in production of the Products as
described in p 12.4 and otherwise described in this Agreement;
and (iv) each party shall cease to use the documentation and
information provided to it by the other party pursuant to the
provisions of this Agreement.
14.2 The following Sections shall survive the expiry or termination for any
reason of this Agreement: 5.1, 5.2, 7.1, 7.3, 7.4, 7.5, 7.6, 7.7, 11.1,
11.2, 11.3, 11.4, 121, 12.2, 12.3, 12.4, 12.5, 12.6, 14.1, 16.1, 17.1 and
18.1 to 18.10, together with any payment obligations arising prior to such
expiry or termination,
SECTION 15.0 - FORCE MAJEURE
15.1 None of the parties shall be liable for any failure or omission in the
performance of any provision of this Agreement, if failure is caused by or
shall arise directly or indirectly, from acts of God, government orders,
legislation; or regulations, embargoes, fire, storm, floods, strikes,
labor trouble, wars, riots, failure of carriers or suppliers to transport
or furnish materials or other contingencies beyond the reasonable control
of the parties. SMTC shall, however, give prompt notice to OnScreenT"" in
the event of the occurrence of any of the above contingencies that SMTC
expects will delay the delivery of the
____________________ ___________________
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Services or any part thereof in a timely manner. Any notice from SMTC
shall include its estimate as to the expected period of delay. Upon
receipt of such notice or upon OnScreenTM becoming aware of the occurrence
of any of the above contingencies which OnScreenT'a reasonably expects
will delay the delivery of the Services or any part thereof, OnScreenTM
shall be free to obtain some or all of the Services without delay and
without penalty that are expected to be the subject of delay from other
suppliers during such period notwithstanding its obligations #e under this
Agreement. In such circumstances, SMTC shall co-operate with OnScreenT"^
and any new suppliers to achieve a smooth, effective and expeditious
transition and SMTC shall deliver any Property as directed by OnScreeniM
during the period of delay. SMTC shall be entitled to give notice to
OnScreenT^ following resolution of any outstanding difficulties resulting
from any such contingency in respect of which it has given notice, or that
OnScreenT" became aware of, that SMTC is then in a position to provide the
affected Services in a timely manner in accordance with the provisions of
this Agreement. In any event, OnScreen7(degree) shall then deal with SMTC
in connection with the provision of the affected Services commencing on
the 30th day following receipt of such notice from SMTC. SECTION 16.0 --
DISPUTE RESOLUTION
16.1 The parties hereby agree that in the event any of the terms and conditions
contained in this Agreement must be enforced by reason of any failure of
observance or of performance by any of the parties hereto, in each such
instance, the parties to this Agreement agree that exclusive jurisdiction
and venue shall properly lie in the Sixth Judicial Circuit of the State of
Florida, in and for Pinellas County, Florida, or in the United States
District Court for the Middle District of Florida (Tampa Division), with
respect to any legal proceedings arising from this Agreement.
SECTION 17.0 - NOTICE
17.1 Any notice required or permitted to be given for the purposes of this
Agreement shall be in writing and shall be sufficiently given if
personally delivered to an officer of the party by facsimile, courier or
registered letter, postage prepaid and:
(a) if to SMTC, addressed to:
SMTC Manufacturing Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: President
(b) if to OnScreenTM, addressed to:
OnScreen Technologies, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
and such notice shall be deemed to have been given on the day it was
personally delivered or sent by facsimile or on the fifth business day
after mailing; provided, however, if after the time of mailing of any such
notice and prior to delivery, normal postal service is interrupted through
strikes or other similar irregularities, then such notice shall be deemed
to have been received on the fifth business day following the resumption
of normal mail service. Any party may from time to time change its address
for the purpose of receipt of any such notices by giving written notice of
such change to the other party in the manner described.
SECTION 18.0 - GENERAL PROVISIONS
____________________ ___________________
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18.1 Nothing contained in this Agreement shall constitute a joint venture or
partnership between the parties hereto, or empower a party to bind the
other.
18.2 Unless otherwise specified, words importing the singular include the
plural and vice versa and words importing gender include all genders.
18.3 The division of this Agreement into sections, the insertion of headings
and the provision of a table of contents are for convenience of reference
only and are not to affect the construction or interpretation of this
Agreement.
18.4 Each party shall from time to time promptly execute and deliver all
further documents and take all further action reasonably necessary to give
effect to the provisions of this Agreement.
18.5 Except as otherwise contemplated hereby, each party hereto shall pay its
own expenses relating to the negotiation, execution, delivery and
performance of this Agreement, and in respect of satisfying its
obligations hereunder. In the event litigation is instituted between the
parties with respect to all or any part of this Agreement, the prevailing
party therein shall be entitled to recover, in addition to all other
relief obtained, its costs, expenses and fees, including reasonable
attorneys' fees, incurred in such litigation. To the extent practicable,
such legal fees shall be allocated among the matters involved in such
litigation directly attributable to the issues upon which such party
prevailed.
18.6 This Agreement constitutes the entire agreement between the parties with
respect to the subject matter and supersedes all prior agreements,
negotiations, discussions, undertakings, representations, warranties and
understandings, whether written or verbal. No amendment, supplement,
restatement or termination of any provision of this Agreement is binding
unless it is in writing and signed by each party to this Agreement.
18.7 This Agreement enures to the benefit of and binds the parties and their
respective successors and permitted assigns.
18.8 If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, the illegality, invalidity or
unenforceability of that provision will not affect:
(a) the legality, validity or enforceability of the remaining provisions
of this Agreement; or
(b) the legality, validity or enforceability of that provision in any
other jurisdiction.
18.9 Amounts to be paid or calculated under this Agreement are to be paid or
calculated in currency of the United States of America.
18.10 No waiver of any provision of this Agreement is binding unless it is in
writing and signed by all the parties to this Agreement entitled to grant
the waiver. No failure to exercise, and no delay in exercising, any right
or remedy, under this Agreement will be deemed to be a waiver of that
right or remedy. No waiver of any breach of any provision of this
Agreement will be deemed to be a waiver of any subsequent breach of that
provision.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
respective dates set out below.
SMTC MANUFACTURING CORPORATION
By:_________________________________ This ___ day of November 2004
(Authorized Signing Officer)
____________________ ___________________
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Print: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: President and CEO
OnScreen Technologies, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ This 8th day of November 2004
----------------------
(Authorized Signing Officer)
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------
Job Title: COO/CFO
-----------------
Schedule 1.17
Definition of Products
"Products" as defined at the date of this Agreement are: RediAlertTm and
RedlAd7M along with stands, frames and accessories as contracted in this
Contract, The definition of "Products" is subject to Change from time-to-time by
mutual agreement of the parties hereto,
____________________ ___________________
OnScreenTM SMTC Page 18 of 18
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18.1 Nothing contained in this Agreement shall constitute a joint venture or
partnership between the parties hereto, or empower a party to bind the
other,
18.2 Unless otherwise specified, words importing the singular include the
plural and vice versa and words importing gender include all genders_
18.3 The division of this Agreement into sections, the insertion of headings
and the provision of a table of contents are far convenience of reference
only and are not to affect the construction or interpretation of this
Agreement,
18.4 Each party shall from time to time promptly execute and deliver all
further documents and take all further action reasonably necessary to give
effect to the provisions of this Agreement.
18.5 Except as otherwise contemplated hereby, each party hereto shall pay Its
own expenses relating to the negotiation, execution, delivery and
performance of this Agreement, and in respect of satisfying its
obligations hereunder. In the event litigation is instituted between the
parties with respect to all or any part of this Agreement, the prevailing
party therein shall be entitled to recover, in addition to all other
relief obtained, its costs, expenses and fees, including reasonable
attorneys' fees, Incurred in such litigation. To the extent practicable,
such legal fees shall be allocated among the matters involved In such
litigation directly attributable to the issues upon which such party
prevailed,
18.6 This Agreement constitutes the entire agreement between the parties with
respect to the subject matter and supersedes all prior agreements,
negotiations, discussions, undertaldngs, representations, warranties and
understandings, whether written or verbal. No amendment, supplement,
restatement or termination of any provision of this Agreement is binding
unless It Is In writing and signed by each party to this Agreement.
18,7 This Agreement enures to the benefit of and binds the parties and their
respective successors and permitted assigns.
18.8 If any provision of this Agreement is or becomes Illegal, invalid or
unenforceable in any jurisdiction, the illegality, invalidity or
unen(euro)orceability of that provision will not effect; (a) the legality,
validity or enforceability of the remaining provisions of this Agreement;
or (b) the legality, validity or enforceability of that provision in any
other jurisdiction.
18.9 Amounts to be paid ar calculated under this Agreement are to be paid or
calculated in currency of the United States of America.
18.10 No waiver of any provision of this Agreement is binding unless it Is in
writing and signed by all the parties to this Agreement entitled to grant
the waiver, No failure to exercise, and no delay In exercising, any right
or remedy, under this Agreement will be deemed to be a waiver of that
right or remedy, No waiver of any breach of any provision of this
Agreement ▇▇▇▇ be deemed to be a waiver of any subsequent breach of that
provision.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
respective dates set out below.
SMTC MANUFACTURING CORPORATION
By:_________________________________ This 9th day of November 2004
(Authorized Signing Officer)
