EXHIBIT 10.11(a)
Sanmina Corporation and Novacept hereby agree to amend that certain agreement
for electronic manufacturing services entered into by them on June 22, 2001 (the
"Agreement") as follows:
Clause IV. Liabilities for Materials
Section A is hereby clarified by deleting subsections 1 through 3 in
their entirety and replacing them with "Parts purchased by Sanmina that have
been changed or substituted on the Xxxx of Material by Novacept, that cannot be
cancelled or returned (with reasonable efforts) by Sanmina. Novacept is not
liable for the cost of current Xxxx Of Material required parts in quantities
that exceed the quantity required to manufacture the number of units ordered on
the Blanket Purchase Order."
Clause VIII. Pricing
Subsection 2 is hereby clarified by adding to the end, "exceeding
fifteen percent (15%) of the market price."
Clause IX. Delivery
The first paragraph is hereby clarified by deleting the first sentence
and replacing it with, "Delivery of all items to Customer under this Agreement
A ("Delivery Point"). Sanmina is to notify Customer, in writing via fax or
email, on the day Products are available for delivery to the Delivery Point.
Risk of loss and title shall pass from Sanmina to Novacept after a reasonable
time (24 hours) for Novacept to make arrangements for the pick up of such
Product quantities. However, if Sanmina decides to transport Product to
Novacept, and chooses the method of transportation, all risk and loss of title
to the product remains with Sanmina until receipt by Novacept personnel at
Novacept's address specified herein."
The second paragraph of Clause IX is hereby clarified by deleting it in
its entirety and replacing it with "Sanmina shall deliver the Products to the
Delivery Point on the Delivery Date. Sanmina shall notify Novacept of any delays
or anticipated delays in the delivery of the product which will cause Sanmina to
miss the required Delivery Dates specified in the applicable Purchase Order.
This notification shall be in writing, via fax or email, and shall be given as
soon as Sanmina becomes aware of the likelihood of such failure to deliver on
the Delivery Date. For purposes of this agreement, "Delivery Date" means the
date on which a quantity of Product is completed and is ready for delivery to
the Delivery Point, in the correct quantity and on the date required by the
applicable Purchase Order."
Clause XI. Warranty
The first paragraph is hereby clarified by deleting the second and
third sentences in their entirety.
The first paragraph is hereby further clarified by replacing the fourth
sentence with, "As the Customer's sole remedy under this warranty, Sanmina will,
at no additional charge to Customer, rework, repair and test of any unit found
to contain defects caused by Sanmina, or caused by any components procured by
Sanmina from any of its suppliers."
The first paragraph is hereby further clarified by deleting the sixth
sentence in its entirety.
The first paragraph is hereby further clarified by adding to the
sentence, "plus any associated shipping and replacement costs."
Clause XI is hereby further clarified by adding a new fourth paragraph
as follows: "Sanmina further warrants and represents that all Products delivered
to Customer by or on behalf of Sanmina shall meet the Product specifications at
the time of delivery and shall be manufactured with all applicable
manufacturing, quality control and record-keeping procedures specified by
Customer and consistent with industry practice."
Clause XII. General Indemnity
Clause XII is hereby clarified by adding a new second paragraph as
follows: "Sanmina will indemnify and hold harmless Customer, its employees,
directors, officers, and agents against any loss, cost, liability or expense
(including court costs and the reasonable fees of attorneys and other
professionals) to the extent that such loss, cost, liability or expense arises
out of, or in connection with, in whole or in part, Sanmina's breach of any of
its warranties in Clause XI."
Clause XII is hereby clarified by adding a new third paragraph as
follows: "In the event that either Sanmina or Customer seeks indemnification
under this Clause XII, it shall inform the other party of a claim within twenty
(20) days after it receives notice of the claim, shall permit the other party to
assume direction and control of the defense of the claim (including the right to
settle the claim solely for monetary consideration) with counsel mutually
satisfactory to both Sanmina and Customer, shall cooperate as reasonably
requested (at the expense of the other party) in the defense of the claim, and
shall not settle or compromise the claim without the express, prior written
consent of the other party. The indemnity agreement in this Clause XII shall not
apply to amounts paid in settlement of any loss, claim, damage, liability or
action if such settlement is made without the consent of the party providing
indemnification, which consent shall not be withheld unreasonably."
Clause XV. Limitation of Liability
Clause XV is hereby clarified by adding to the beginning of the first
sentence, "EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER CLAUSE XII".
Clause XV is hereby clarified by replacing "SANMINA" and "THE CUSTOMER"
with "SANMINA OR THE CUSTOMER".
Clause XVI. Miscellaneous
Subsection D is hereby clarified by adding a new first sentence as
follows: "Sanmina may not assign this Agreement without the prior written
consent of Customer."
THIS CLARIFICATION AND THE AGREEMENT AS CLARIFIED BY THIS AMENDMENT
SETS FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING OF SANMINA AND NOVACEPT WITH
RESPECT TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PRIOR DISCUSSIONS,
AGREEMENTS AND WRITINGS IN RELATION THERETO.
Except as stated in this Clarification, all other elements of the
original Agreement and Exhibits remain unchanged.
This Clarification may be executed in counterparts, each of which shall
be deemed an original, but both of which together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute this Clarification.
SANMINA CORPORATION NOVACEPT
By: /s/ Xxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxx
Title: Vice President Sales Title: VP Operations
Date: 6-22-01 Date: 6-22-01
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