EXHIBIT 10.9
SALES AGREEMENT
This AGREEMENT made and entered as of April 1, 2004, by and among YASKAWA
ELECTRIC CORPORATION, a company organized and existing under the laws of Japan,
whose registered office is at 0-0, Xxxxxxxxx Xxxxxxxx, Xxxxxxxxxxx-Xx,
Xxxxxxxxxx, Xxxxx (hereinafter referred to as "YASKAWA"), and SYNETICS
Solutions, Inc., a corporation organized and existing under the laws of Oregon,
USA, whose registered office is at 00000 XX Xxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxx,
00000, XXX, (hereinafter referred to as "SYNETICS").
WITNESSETH THAT:
WHEREAS, YASKAWA is in the business of manufacturing and developing the
products.
WHEREAS, SYNETICS desires to secure the right to sell the Products hereinafter
defined in the Territory hereinafter referred to as "Territory".
NOW, THEREFORE, in consideration of the premises and mutual undertakings
hereinafter set forth the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
1.1 "Products" as used herein shall mean those Products set forth in
Schedule 1.1 of this Agreement.
1.2 "Territory" as used hereinafter shall mean Western Hemisphere.
ARTICLE 2 GRANT OF SALES RIGHTS
2.1 YASKAWA hereby grants SYNETICS (1) an exclusive right to sell the
Products for use in semiconductor manufacturing equipment (including
all components thereof, parts therefor and related services) sold to
customers located in the Territory and (2) a nonexclusive right to sell
the Products for use in semiconductor manufacturing equipment sold to
subsidiaries of customers with world headquarters located in the
Territory.
2,2 Notwithstanding 2.1, even if outside of the Territory SYNETICS may sell
the Products exclusively to existing subsidiaries of Applied
Materials, Inc., KLA-Tencor corporation, and Novellus Systems, Inc.
ARTICLE 3 PRICE AND PAYMENT
3.1 The price of the Products shall be set forth separately including
Standard Exchange Rate (SER).
3.2 Taking into account the changes in the production cost, freight, market
conditions and other factors that may affect the price of the Products,
both parties have a right to propose the revision of the price of the
Products at any time during the term of this AGREEMENT. Any price
changes must be agreed to in writing by both parties. Standard
(non-modified) Products will be priced to SYNETICS on annual basis,
provided that YASKAWA shall give SYNETICS three months notice of any
price increase.
3.3 YASKAWA warrants to SYNETICS that the prices charged to SYNETICS during
the term of this
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Agreement shall be no higher than the prices YASKAWA charges to any
other customer for comparable products and comparable services. In the
event YASKAWA charges any other customer a price lower than the price
YASKAWA charges SYNETICS for comparable products or services, YASKAWA
shall promptly notify SYNETICS of such lower price, and SYNETICS shall
be entitled to such lower price effective as of the date the lower
price was charged to the other customer.
3.4 Unless otherwise mutually agreed, payment terms for the Products
between SYNETICS and YASKAWA shall be in U.S. dollars. Payment from
SYNETICS to YASKAWA will be due one hundred twenty (120) days after the
xxxx of lading date, or at such other date as the parties may mutually
agree.
3.5 In case that there is fluctuation between the applied conversion rate
pursuant to Article 3.1 and exchange rate (yen/dollars) on the date of
actual payment, YASKAWA and SYNETICS will share the exchange rate
pricing impact based on the following formula.
FOB JAPAN X * SER/(SER + A)/2
A = "The average of the closing on buying and selling prices of
New York City's Foreign Exchange Market during the last one
month, which is given in the Chicago edition of The Wall
Street Journal."
ARTICLE 4 SHIPMENT
4.1 YASKAWA shall in good faith make shipments in accordance with YASKAWA's
separate sales acknowledgment to be issued and given to SYNETICS for
each individual order from SYNETICS whose details are discussed and
confirmed beforehand between YASKAWA and SYNETICS.
ARTICLE 5 WARRANTY
5.1 SYNETICS and YASKAWA recognize that the fundamental understanding of
this Article 5 is to recover from failures as soon as possible and
satisfy requirements of both parties' users.
YASKAWA warrants the Products to be free from defects in material,
design and workmanship (hereinafter called the "Warranty") for a period
of twelve (12) months from the date of installation, or for a period of
eighteen (18) months from the date of the Xxxx of Lading, whichever
period expires first (such period shall hereinafter be called the
"Warranty Period").
5.2 This Warranty shall be limited to repair or replacement of the
defective parts by YASKAWA free of charge. In case within Warranty
Period the defective parts will be sent back to YASKAWA for repair, the
transportation fee shall be borne by YASKAWA. After finishing repair,
YASKAWA shall return the repaired parts to SYNETICS at YASKAWA's
expense. However if SYNETICS repairs the defective parts of the
Products with prior written approval of YASKAWA, the necessary expenses
thereof shall be borne by YASKAWA within the Territory.
ARTICLE 6 AFTER-SALES SERVICE
6.1 During the term of this Agreement, SYNETICS shall service all Products
in the Territory sold by SYNETICS during the term of this Agreement.
The domain of such service shall be clarified
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separately.
6.2 YASKAWA agrees to supply SYNETICS with adequate information and service
instructions, manuals and spare parts lists in English, as the same may
be in effect from time to time, and agrees to receive a reasonable
number of technically qualified engineers of SYNETICS to give SYNETICS
training on the service of the Products.
ARTICLE 7 TERM OF AGREEMENT
7.1 This Agreement shall effect five (5) years and thereafter, shall be
renewed every year unless either party gives the other notice of its
intent not to renew at least six (6) months prior to the next renewal
date.
7.2 YASKAWA may change the right of SYNETICS to sell Products in the
Territory from exclusive to non-exclusive if SYNETICS' annual purchase
of robots from YASKAWA numbers less than the number of robots purchased
by SYNETICS in calendar year 2003 (270 robots), provided that such
number is adjusted annually in proportion to changes in the Global
Semiconductor Wafer Fab Equipment Market as published in the Worldwide
Semiconductor Equipment Market Statistics (SEMIS) Report (or successor
thereto).
ARTICLE 8 TERMINATION
8.1 If there is any breach and/or violations of the provisions of this
AGREEMENT by YASKAWA or SYNETICS during the term of this AGREEMENT, the
defaulting party shall first of all endeavor to settle the matter as
soon and amicably as possible to the satisfaction of the non-defaulting
party.
Unless the settlement of relevant matter is done within sixty (60) days
after the notification of such default in writing by the non-defaulting
party, such non-defaulting party has the right to cancel
unconditionally this AGREEMENT in writing without payment of any
compensation.
8.2 A non-involved party may terminate this Agreement by giving a written
notice of termination to the other party if YASKAWA or SYNETICS:
1) makes an assignment for the benefit of creditors,
2) is the subject of any voluntary or involuntary case under the
applicable law regarding bankruptcy, insolvency,
reorganization, adjustment of debt or other form of relief for
debtors in any jurisdiction and, if involuntary, such case is
not dismissed within sixty (60) days,
3) has a receiver, trustee, liquidator for it or for any
substantial part of its property,
4) is the subject of dissolution or liquidation proceedings,
5) completes a consolidation or merger of such corporation with
or into a third party in which the shareholders of such
corporation immediately prior to such transaction or series of
related transactions shall own securities representing less
than a majority of the voting power of the surviving
corporation or entity immediately after such transaction or
series of related transactions,
6) discontinues the business relating to the Products for any
reason,
7) transfers whole or an important part of the business relating
to the Products to a third party,
8) is unlikely to fulfill its obligations under this Agreement
because of significant changes of its assets, credit or
business positions.
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8.3 Upon termination of this Agreement, whether as herein provided or by
operation of law or otherwise, all rights granted, or obligations
undertaken hereunder shall terminate forthwith except:
1) YASKAWA's obligation to deliver to SYNETICS all orders for the
Products accepted by YASKAWA prior to the effective date of
termination,
2) YASKAWA's obligation to warrant such Products pursuant to
Article 5 of this Agreement,
3) SYNETICS' obligation provided for in Article 6 and 8 of this
Agreement,
4) SYNETICS' obligation to pay any amount which was or became due
to YASKAWA prior to termination, or becomes due after
termination, and
5) the licenses granted pursuant to Article 10 of this Agreement.
ARTICLE 9 CONFIDENTIALITY
During the term of this Agreement and thereafter both parties shall not disclose
any confidential information it may acquire in connection with the Products,
this Agreement or performance thereof. The obligations of this paragraph shall
not apply to information that is now or becomes generally known to the public,
information already known at the time of disclosure, information rightfully
received from a third party without obligation of confidentiality, and
information independently developed without use of the other party's
confidential information.
ARTICLE 10 CUSTOM DEVELOPMENTS
YASKAWA and SYNETICS will work together on custom development efforts as
requested by SYNETICS. SYNETICS agrees to bear the reasonable cost of such
development. SYNETICS shall have a perpetual, royalty free license, to use and
commercially exploit the work product in semiconductor equipment manufacturing,
which license shall be exclusive in the Territory.
ARTICLE 11 FORCE MAJEURE
Neither of the parties to this Agreement shall be liable for any obligation
under this Agreement, if fulfillment of such obligation has been delayed,
hindered or prevented by force majeure, including strikes, riots, lockouts,
civil commotion, war, or any circumstances beyond the control of the parties;
provided that if such inability to perform continues for a period in excess of
90 days, the non-involved party may terminate this Agreement upon thirty (30)
days' prior written notice. A party involved in such events shall give the other
party notice of the existence of any condition claimed to excuse the notifying
party's performance promptly upon discovery of same, and promptly upon cessation
of same.
ARTICLE 12 NOTICE
12.1 Any notice in connection with this AGREEMENT or performance thereunder
shall be sent in Japanese or English to the following addresses or such
other addresses as the parties may notify each other from time to time
by a registered air mail or fax.
TO: YASKAWA ELECTRIC CORPORATION
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Robotics Automation Division
0-0 Xxxxxxxxx Xxxxxxxx
Xxxxxx-Xxxxx XX, Xxxxxxxxxx Xxxx
Xxxxx
ATTN: Xxxxxxxxxx Xxxxxx
TO: SYNETICS SOLUTIONS, INC.
00000 XX Xxxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxx, 00000
XXX
ATTN: Xxxx Xxxxxxx
12.2 All notices mentioned above shall be deemed to have been given at the
time of dispatch.
ARTICLE 13 GOVERNING LAW AND ARBITRATION
13.1 The formation, Validity, construction and performance of this Agreement
shall be governed by the laws of Oregon, USA.
13.2 Any disputes and controversies arising out of or relating to this
Agreement or for the breach thereof that can not otherwise be settled
amicably between the parties shall be submitted to arbitration to be
carried out either in Tokyo, Japan or in Portland, Oregon, USA at the
jurisdiction of the defendant. Such arbitration shall be conducted in
accordance with the rules of the Japan-American Trade Arbitration
Agreement of September 16, 1952. The decision of such arbitration
proceedings shall be conclusive and binding upon the parties hereto.
ARTICLE 14 ASSIGNMENT
Neither this Agreement nor any rights or privileges under it shall be assignable
by either of the parties without the prior written consent of the other party.
ARTICLE 15 WAIVER OF BREACH
The failure of either party to require the performance of any terms of this
Agreement or the waiver by either party of any breach under this Agreement shall
not prevent a subsequent enforcement of such terms, nor be deemed a waiver of
any subsequent breach.
ARTICLE 16 ENTIRE AGREEMENT
This Agreement constitutes the entire and only agreement between the parties
hereto in relation to the sale of the Products.
ARTICLE 17 CHANGE OF AGREEMENT
This Agreement shall be changed, modified or amended by the parties, provided
that such change, modification or amendment shall be in writing and be signed by
respective parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement in duplicate
to be executed as of the
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day and year first above written.
Yaskawa Electric Corporation
XXXXXXXXXX XXXXXX
------------------------------
Xxxxxxxxxx Xxxxxx
General Manager
Robotics Automation Division
Synetics Solutions, Inc.
XXXX XXXXXXX
------------------------------
Xxxx Xxxxxxx
President and CEO
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Schedule 1.1 "Products"
"Products" mean with the following type name consisting of the following units
made by YASKAWA used in the semiconductor industry.
1. All of XU-RC series Product
[RC] covers all of SCARA type clean manipulators with those
controllers.
2. All of XU-RV series Product
[RV] covers all of SCARA type vacuum manipulators with those
controllers
3. All of XU-RW series Product
[RW] covers all of SCARA type waterproof and/or chemical proof
manipulators with those controllers.
4. All of XU-ACP series Product
[ACP] covers all of clean Pre-Aligners with those amplifiers and/or
controllers.
5. All of XU-AVP series Product
[AVP] covers all of vacuum Pre-Aligners with those amplifiers and/or
controllers
6. All of XU-ACT series Product
[ACT] covers all of X-Axis Units to be utilized with any RC series
product.
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