[LOGO] GS S/ARRAY
SPECTRIAN TECHNOLOGY
MANUFACTURING AGREEMENT
Revision 98
This MANUFACTURING AGREEMENT (hereinafter referred to as "Agreement") is made
and entered into as of the date that the last signature below is affixed
(hereinafter "Effective Date"), by and between GSS/ARRAY Technology (hereinafter
"Seller"), having a principal place of business at 00 Xxx 0, Xxxx-Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Bang pa-in, Ayudhaya, 00000, Xxxxxxxx, and
Spectrian, having a principal place of business at 000 Xxxx Xxxx Xxxxx,
Xxxxxxxxx, XX. 00000 (hereinafter "Buyer").
WITNESSETH:
WHEREAS, Buyer desires to manufacture and sell Products, which include
subassemblies and components (hereinafter "Products"); and
WHEREAS, Buyer desires to have manufactured and to purchase such Products
further described in Exhibit A and as mutually agreed upon by both parties from
time to time in accordance with Section 3.2; and
WHEREAS, Seller is in the business of providing electronic manufacturing
services of high technology electronic equipment and Seller desires to
manufacture such products further described in Exhibit A;
NOW THEREFORE, in consideration of the premises and undertakings hereinafter set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1.0 TERM
The term of this Agreement shall commence upon the Effective Date, and shall
continue for twelve (12) months, shall automatically renew for another 12-month
period unless either party gives the other party 30 (thirty) days written notice
of its intent not to renew this Agreement or until either party gives thirty
(30) days advance notice of its intent to terminate pursuant to section 11.0, or
until all the products are delivered by the Seller.
2.0 TERMS OF SALE
2.1 Orders.
During the term of this Agreement, Seller shall sell to Buyer, and Buyer shall
purchase from Seller, the Products as identified in Exhibit A. It is
contemplated that the ordering of Products shall be by means of individual
purchase orders and amendments, which are issued from time to time by Buyer.
Each purchase order shall specify the quantity, model number and description of
Products to be purchased. Upon acceptance by Seller, each purchase order shall
constitute a firm and binding contract, consisting of the terms of: (1) this
Agreement, (2) exhibits to this Agreement, (3) any terms conspicuously
typewritten on the face of the purchase order that are not inconsistent with the
terms of this Agreement, and (4) any terms in Seller's written acceptance that
are not inconsistent with this Agreement. Such terms in Seller's written
acceptance are subject to review end acceptance by Buyer. Seller will notify
Buyer of the acceptance or rejection of an
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000 Xxxx Xxxx Xxxxx x Xxxxxxxxx, XX 00000 > Phone 000-000-0000
Corporate Fax 000-000-0000 > Human Resource Fax 000-000-0000 >
Sales & Marketing Fax 000-000-0000
order within five (5) business days of its receipt. This Agreement sets forth
the terms and conditions applicable to all purchase orders issued during the
term of this Agreement, irrespective of whether this Agreement is referenced by
the purchase orders. The terms and conditions of this Agreement replace in their
entirety any and all of the pre-printed purchase order terms and conditions
appearing on Buyer's purchase order forms or Seller's written acceptances.
2.2 Precedence.
In the event of any conflict between the terms of this Agreement and the terms
of any exhibit or purchase order, the order of precedence is as follows:
(1) The terms of this Agreement;
(2) The terms of any exhibits to this Agreement
(3) The terms on the face of Buyer's purchase order.
2.3 Increases, Rescheduling and Cancellation.
(a) Buyer shall provide Seller with purchase orders covering a minimum of the
first (3) weeks of the forecast. The delivery schedule for Products covered by
blanket purchase orders is controlled via the forecast. Buyer shall provide
Seller, on a weekly or bi-weekly basis, a written (6) to (12) month rolling
forecast of products to be released. In any week which Buyer does not provide a
forecast, the prior forecast issued by Buyer shall be considered for the
purposes of this agreement as having been issued during the then current week.
The forecast is stated in weekly increments for the first (12) weeks and monthly
(or weekly) increments thereafter.
(b) Buyer may increase, reschedule, or cancel the quantity of any Products
specified in a purchase order by delivering to Seller, by mail or facsimile, a
written change order in accordance with the provisions of section 2.3(a)-(e)
(hereinafter "Change Order"). No Change Order shall be effective until it is
actually received and accepted by Seller's authorized representative. However,
if Seller fails to acknowledge acceptance or provide a counter offer of the
Change Order within (5) business days following its receipt, then such Change
Order shall be presumed to be unconditionally accepted by Seller.
(c) The first (8) weeks of Buyer's Forecast for a Product shall become a binding
commitment, provided Seller confirms its ability to meet such forecast. Buyer
may increase or decrease quantities of forecasted product, with advance
notification pursuant to the requirements of Section 2.3(b) and adjustments, as
specified below:
Weeks of Advance Ceiling for Ceiling for
Notification Percentage Increase Percentage Decrease
------------ ------------------- -------------------
0 (occurs during current week) 10% 0%
1-2 weeks 25% (See note 1) 0%
3-8 weeks 25% (See note 1) 40%
9-12 weeks 50% 100%
13-16 weeks 125% 100%
>16 weeks Unlimited 100%
At Buyer's risk, Seller is authorized to:
1. Stock (1) week (average of first (8) weeks of rolling forecast) of Buffer
FGI for all forecasted
2. Products. Buyer may request increases greater than 25% during weeks one
through four under conditions where the authorized quantity of Buffer FGI
covers said increases.
3. Carry a mutually agreeable (in writing) level of piece part inventory to
enable Seller's response to allowable schedule increases. Seller must
identify in a separate attachment (Exhibit F, Buffer Inventory) those parts
which are required to meet the first 8 weeks of forecast flexibility.
Supplemental Note: Buyer is not responsible for any material beyond the
forecasted, first (8) weeks unless
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Seller identifies in Exhibit G, Long Lead Materials (and obtains Buyer's written
concurrence) the price and lead times of long lead parts necessary to meet the
forecasted volume beyond the (8) week window. Buyer shall pay Seller 1% per
month carrying charge for Buffer Inventory. There is no carrying charge for the
authorized Buffer FGI.
(d) In the event of Buyer's cancellation of a forecasted Product for a reason
other than Seller's breach of the terms of this agreement, all completed
products, assemblies in process, components and any tooling, test and burn-in
equipment owned by Buyer and furnished to Seller, shall be disposed of, at
Buyer's expense in accordance with written instructions furnished by Buyer.
Furthermore, in the event of such cancellation, Buyer shall:
1. Purchase all finished products and work-in-process materials. For any model
(Part Number), the quantity of items shall not exceed the equivalent of the
first (3) weeks of scheduled forecast plus the one week of authorized
Buffer FGI.
2. Purchase any materials (including only the material xxxx up per Exhibit B)
which were procured by Buyer in accordance with the forecast, which are not
usable on other products manufactured by Seller and are not cancelable or
returnable to the vendor. This liability is limited per the provisions of
2.3c.
3. Subject to the limitations of paragraph 2.3c, reimburse Seller for any
reasonable cancellation and/or related costs from its vendors as a result
of Buyer's cancellation. Seller must exercise "best in class" procurement
practices in attempting to cancel orders and/or minimize Buyer's liability.
3.0 STATEMENT OF WORK
3.1 Manufacturing Standards
Products shall be manufactured and assembled in compliance with Seller's
workmanship standards and Buyer's specifications, IPC-610B Class II and meet the
Buyer's quality control practices and standards. If Buyer's specifications and
Seller's workmanship standards conflict, Buyer's specifications shall take
precedence. Buyer may request that Seller purchase specific material or parts
for the manufacture or assembly of the Products, or change the manufacturing
process. Adjustments, if any, to the price of the Products caused by the
requirement to use a specific part, material, or manufacturing process must be
agreed upon by Buyers in advance, in writing.
3.2 Specifications
Buyer shall provide Seller with all Specifications except where the
specifications are standards issued by a national or international standards
body. From time to time, Buyer and Seller may agree to add additional Products
to this Agreement by attaching an Addendum to the Exhibits containing required
specifications and price information, which is signed by both parties.
3.3 Configuration Control.
Seller shall not make or incorporate any change in the specifications for the
Products which affects form, fit, function, regulatory approvals, interface,
interchange-ability, reliability or maintainability without prior written
approval of Buyer, which approval shall not be unreasonably withheld. All
components used in production of Buyer's Products are listed on Buyer's Approved
Vendors List (hereinafter "AVL"), with Buyer's part number and approved vendors
for that component. It is the responsibility of Seller to obtain an up-to-date
copy of the AVL. Seller must put systems in place within its quality system to
ensure that all components purchased for use in production of Buyer's Products
are in compliance with the AVL. Material purchased by Seller or any third party
purchasing agent on behalf of Seller that is at variance with the Buyer's AVL is
explicitly prohibited. Seller is accountable for any and all liabilities
resulting from unauthorized deviations from Buyer's AVL or quality control
requirements.
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4.0 CHANGES
4.1 Seller Changes.
(a) Seller shall not incorporate any engineering change to the Products without
Buyer's prior written consent. Seller shall notify Buyer of any engineering
change proposed by Seller to the Products, and shall supply a written
description of the expected effect of the engineering change on the Products,
including the possible effect on price, performance, reliability and
serviceability as part of the proposed engineering change and any anticipated
costs for obsolete materials. Buyer, at its discretion, may elect to incorporate
or not to incorporate any Seller-proposed engineering change to the Product
design and shall notify Seller of its decision within 30 (thirty) days of
receipt of Seller's proposal. If any Seller-proposed engineering change is
accepted by Buyer and is incorporated into the Product design resulting in
reduced Product price, Seller and Buyer will share in the resulting cost
savings, based on the following schedule (days are represented as calendar days
following Buyer's approval):
0 - 60 days 100% to Seller
61 - l20days 50% to Seller: 50% to Buyer
121 - 180 days 25% to Seller: 75% to Buyer
after 180 nays 100% to Buyer
(b) If a Seller-proposed engineering change is accepted by Buyer, the parties
agree to amend the unit price and pending purchase order accordingly, and the
new product price shall apply to all Products delivered hereunder which include
the Seller-proposed engineering change.
(c) Seller agrees that any and all Seller-proposed engineering changes shall
belong to and be the property of the Buyer. Once the proposed engineering change
is accepted by Buyer, Buyer assumes all liabilities for the change (including
obsolete materials previously identified by Seller) as if it had been proposed
and adopted by the Buyer.
4.2 Buyer Changes.
(a) Buyer may make engineering changes to the Products from time to time during
the term of this Agreement by written notification to Seller describing the
details of the engineering change. Drawings, designs, and/or specifications
required for the change shall also be supplied by Buyer. Buyer shall assume all
liability for obsolete materials and products as if such changes resulted from
the Buyer's cancellation of its forecast pursuant to Section 2.3(c). Once the
parties have agreed upon any resulting unit price change as determined in
Section 4.2(b), Seller shall incorporate the proposed engineering change into
the Products on a schedule to be agreed to by the parties. Seller shall not
proceed to implement any proposed engineering change without Buyer's written
authorization.
(b) Within fifteen (15) days of Buyer's notification of a proposed engineering
change, Seller shall provide Buyer with a written quotation which includes any
proposed increase or decrease in the unit price of the Products and a costed
summary of obsolete material. The parties shall make a good faith effort to
agree upon any change which may apply to the unit price of the Product within
thirty (30) days from the date of Buyer's notification of the proposed
engineering change, and this Agreement shall be amended accordingly.
5.0 AUTOMATIC TEST EQUIPMENT, TOOLING AND TEST FIXTURES
5.1 Tooling and Test Fixtures
Upon written authorization by Buyer, Seller shall order and purchase for Buyer,
at Buyer's expense, all of the process tooling, assembly tools and test fixtures
necessary or appropriate to manufacture the Products, except for tools consigned
by Buyer and listed on Exhibit D. Seller shall submit any request for
authorization to
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purchase tooling and test fixtures to Buyer, in writing. At Buyer's option, it
shall provide Seller with the process tooling, assembly tools and test fixtures
from Buyer's existing supplies of those items. Buyer shall grant or deny the
request in writing within fifteen (15) days after the date of the request. If
Buyer does not respond to Seller within the prescribed period or delivers a
timely denial of any request, then any purchase orders for the periods affected
shall be appropriately adjusted by the parties. Seller's receipt and use of
Buyer-approved tooling and test fixtures shall be deemed as Buyer's acceptance
of the process tooling, assembly tools and test fixtures. Upon termination of
this Agreement or upon Buyer's written request, Seller shall ship to Buyer
F.O.B., Seller's Manufacturing Plant, and at the expense of Buyer, all of the
design drawings, "as-built" drawings, process tooling and test fixtures paid for
by the Buyer or consigned to Seller. Notwithstanding the foregoing, process
tooling, assembly tools, test fixtures, and all intellectual property rights
with respect to such tooling and test fixtures which are developed solely at the
expense of Seller in connection with performance of this Agreement shall be the
property of the Seller.
5.2 Automatic Test Equipment
Beginning in Q4 of 1998, Seller will consider Buyer's request that Seller
purchase automatic test equipment (ATE) required to manufacture products for
Buyer. Seller will make a proposal to Buyer as to how the cost of said ATE
equipment would be recovered by Seller.
5.3 Protection of Equipment
Regardless of whether equipment is owned by Buyer or Seller, all equipment which
is in the physical custody of Seller shall be adequately protected against loss
or damage. Seller is responsible to maintain insurance for said equipment and
all repair, maintenance, and calibration expenses.
6.0 PURCHASE PRICE AND PAYMENT TERMS
6.1 Purchase Price.
The prices for the Products are listed on the attached Exhibit B. If, during the
term of this Agreement, changed prices are put into effect by mutual written
agreement of the parties; such prices shall apply only to all purchase orders
issued by Buyer after the effective date of the changed prices.
6.2 Payment Terms.
The purchase price for the Products, and all other related charges contemplated
by this Agreement shall be due and payable thirty (30) days after the later of
(i) the date of Seller's invoice or (ii) the date of shipment of the Products
and shall not be subject to any set-off claims of Buyer.
6.3 Sales and Use Tax.
Buyer shall pay all applicable sales or use taxes, or provide Seller with a
resale tax certificate to support any exemption. If the Products are to be
exported after delivery to Buyer, Buyer shall arrange for payment by its
customer(s) or end-user(s) of all applicable import duties at the destination
country.
7.0 PACKAGING, SHIPPING AND DELIVERY
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7.1 Packaging.
All Products shall be packaged for shipment so as to protect the Products from
loss or damage, in conformance with good commercial practice, Buyer's
specifications, government regulations and other applicable standards.
7.2 Shipping.
All shipments shall be made F.O.B. Seller's Manufacturing Plant, Title to
Products and risk of loss, damage or destruction shall pass from Seller to Buyer
upon Seller's delivery of the Products to the common carrier specified by the
Buyer, or, if no instructions are given, Seller shall select the least expensive
carrier. Any such loss, injury or destruction shall not release Buyer from any
obligation under this Agreement.
7.3 Delivery.
(a) All orders shall be shipped complete. Seller shall immediately give Buyer
oral and written advice of any prospective failure to ship the specified
quantity of Products in time to meet the scheduled delivery date. Should only a
portion of the Products be available for shipment by the delivery date, Seller
shall consult with Buyer to obtain authorization to make a partial shipment and
to obtain delivery instructions. Where Buyer allows Seller to make partial
shipments, the shipments shall be applied against completion of the oldest open
order first.
(b) If Seller ships any Product by a method other than as specified in the
corresponding purchase order, Seller shall pay any resulting increase in the
cost of freight incurred over the cost of freight which would have been incurred
had Seller complied with Buyer's shipping instructions.
(c) If, due to Seller's failure to make a timely shipment, the specified method
of transportation would not permit Seller to meet the scheduled delivery date,
the Products affected shall be shipped by air transportation or other expedient
means acceptable to Buyer. Seller shall pay for any resulting increase in the
freight cost over that which Buyer would have been required to pay if the
specified method of transportation was used.
(d) If Seller ships more Products than ordered in the purchase order, the amount
of over-shipment may, at Buyer's option, either be kept by Buyer for credit
against future shipments or returned to Seller at Seller's risk and expense,
shipped FOB Origin. If Buyer elects to keep the over shipment, payment for such
overshipment shall be due 30 (thirty) days from the later of (i) the date of
invoice, (ii) the date of shipment and (iii) the date of the Buyer's acceptance
of the overshipment.
(e) Seller shall obtain Buyer's approval before making any delivery more than
five (5) working days prior to the scheduled delivery date. If Seller ships more
than three working days in advance of the scheduled delivery date without
Buyer's approval, Buyer may return the Products to Seller at Seller's risk and
expense and Seller shall re-ship the Products when due at Seller's risk and
expense. If the Buyer elects to keep the advance shipment, the payment for such
advanced shipment shall be due 30 (thirty) days from the later of (i) the date
of invoicing, (ii) the date of shipment or (iii) the date of acceptance by Buyer
of the advance shipment.
8.0 INSPECTION AND ACCEPTANCE
8.1 Inspection.
All items shall be subject to inspection by Buyer at its expense within fifteen
(15) working days after Buyer receives a shipment of the Products from Seller.
Failure to inspect the Products within such time frame shall constitute a waiver
of Buyer's right to inspect prior to payment and shall also constitute a waiver
of any defect or quantity shortages that reasonable inspection prior to payment
would have revealed. None of these provisions shall be interpreted as limiting
Buyer's right to seek redress against Seller for products that prove
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to be defective in subsequent use by Buyer or Buyer's eventual customers due to
causes reasonably under Seller's control.
8.2 Acceptance.
Acceptance of the Products shall be based upon compliance of the Products with
Buyer's specifications. The Products shall be deemed irrevocably accepted unless
Buyer gives Seller written notice of the failure within thirty) (30) working
days of receiving the Products from Seller unless such deviation of the Product
from the Buyer's specifications would not be reasonably determinable from
Buyer's inspection.
8.3 Rejection.
Buyer shall give Seller written notice of any rejection based upon the
condition, quality, quantity or grade of the Products. Failure to give such
written notice within thirty (30) working days of receipt shall constitute
irrevocable acceptance of the Products. If Buyer provides the written notice
specified in Section 8.2 and rejects Products within the thirty (30) working-day
acceptance period. Seller, at its sole option, shall either repair or replace
any Products which fail to meet the contractually imposed Product
specifications. Seller agrees to pay all shipping costs related to the return of
such Products to Seller and the shipping costs related to redelivering the
replacement Products to Buyer and/or Buyer's customers. The mode of shipment
shall be via a standard commercial carrier.
9.0 WARRANTIES, REMEDIES AND LIMITATION OF LIABILITY
9.1 Warranty.
Seller warrants that each Product shall be free from defects in workmanship and
materials and shall have been produced in accordance with the manufacturing
processes specified by Buyer and shall conform to the Product specifications for
twelve (12) months from the date of delivery to the Buyer. During such warranty
period, Seller shall, at its sole discretion and at its expense, repair or
replace the defective Products.
9.2 Limitation of Warranty.
EXCEPT AS EXPRESSLY STATED IN SECTION 8.1 AND 9.1, SELLER HEREBY DISCLAIMS ANY
EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER SHALL
NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED BY PRODUCT MISUSE.
9.3 Limitation of Liability.
(a) Seller's entire obligation under this warranty is exclusive to Buyer, and
shall be limited to repair or replacement of any parts or Product, of which the
Buyer gives the Seller written notice as defective within the warranty period.
Buyer shall be entitled to a remedy hereunder only if it notifies Seller, in
writing, of the alleged breach of warranty within a reasonable period, not to
exceed thirty (30 working) days, after Buyer discovered or has been informed in
writing of a defect in workmanship or materials.
(b) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY
OTHER PERSON, FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES BASED
UPON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STATUTORY CLAIM, OR ANY OTHER
LEGAL THEORY PERTAINING TO ITS PERFORMANCE UNDER THIS AGREEMENT.
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10.0 INDEMNIFICATION
10.1 Seller Indemnification.
Seller represents and warrants that the manufacturing processes employed in the
manufacture of the Products do not infringe on any patent, trademark, trade
secret, copyright or other proprietary right and that Seller is unaware of any
claim of infringement, either threatened or pending. Seller agrees to indemnify,
defend and hold Buyer harmless from and against any claim for such infringement.
In the event that any such process is found to so infringe, Seller shall, at its
option and sole expense, either make such process non-infringing and replace the
infringing Products at its sole expense, or shall procure the rights to continue
to use such infringing process. The foregoing remedies are the sole and
exclusive remedies of the Buyer in the event of an infringement. Buyer shall not
be entitled to recover from Seller any lost profits or any other consequential
damages suffered as a result of such infringement or alleged infringement. It is
agreed that Seller shall undertake the defense of any such claim through counsel
of its own choice and at its expense. However, the provisions of this section
shall not apply with respect to any claim of patent, trademark, or copyright
infringement made solely with respect to the incorporation of specific
components into the Products at the express direction of Buyer, including such
incorporations made in express compliance with Product specifications.
10.2 Buyer Indemnification.
(a) Buyer represents and warrants that it owns, or has the legal right to use,
the designs and specifications needed to manufacture the Products, that the
designs and specifications do not infringe on any patent, trademark, trade
secret, copyright or other proprietary right, and that Buyer is unaware of any
claim of infringement, either threatened or pending. Notwithstanding the
language in Section 10.1 above, Buyer shall defend, indemnify and hold Seller
harmless against any claims or liabilities for, or by reason of, any alleged
infringement of any patent, trademark, trade secret, copyright or other
proprietary right caused by Seller's use and reliance upon the Product
specification in manufacturing the Product, or arising out of the Products being
incorporated by Buyer into another Product or system which infringes upon any
patent, trademark, trade secret, copyright or other proprietary right.
(b) Buyer agrees that it will indemnify and hold Seller harmless against and
from any and all claims, damages and liability suffered by Seller resulting from
personal injury and/or property damage to third parties, including without
limitation to Seller's employees, due to defects in the design of the Product or
the Product specifications or in any specific component incorporated into the
Product at the express direction of the Buyer (including any such incorporation
made in express compliance with specific Product specifications).
11.0 TERMINATION
11. 1 Termination by Seller.
Seller shall have the right to cancel this Agreement and/or any active purchase
orders:
1. Upon Buyer's failure to pay outstanding invoices within 90 days of becoming
due according to theterms of this Agreement; or
2. Upon thirty (30) days advance written notice to Buyer regarding Buyer's
material nonperformance or repudiation of any other substantive obligations
of this Agreement (other than failure to pay any invoice) and Buyer's
failure to cure such nonperformance or repudiation within thirty (30) days
after the written notice is received, or such additional cure period as the
Seller may authorize in writing; or
3. Upon written notice from the Seller in the event the Buyer has elected to
close or dissolve its operation
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or is wound up and dissolved, becomes insolvent, or repeatedly fails to pay
its debts as they become due, makes an assignment for the benefit of
creditors, files a voluntary petition in bankruptcy or for reorganization
or is adjudicated as bankrupt or insolvent, or has a liquidator or trustee
appointed over its affairs and such appointment shall not have been
terminated and discharged within thirty (30) days thereof.
11.2 Termination by Buyer.
Buyer shall have the right to cancel this Agreement and/or any active purchase
orders:
1. For the convenience of Buyer if such cancellation is done in compliance
with Section 2.3 of this Agreement; or
2. Upon thirty (30) days advance written notice to Seller regarding
Seller's material nonperformance or repudiation of any substantive
obligations of this Agreement and Seller's failure to cure such
nonperformance or repudiation within thirty (30) days after the written
notice is received or such additional cure period as the Buyer may
authorize in writing; or
4. Upon written notice from the Buyer in the event the Seller has elected
to close or dissolve its operation or is wound up and dissolved,
becomes insolvent, or repeatedly fails to pay its debts as they become
due, makes an assignment for the benefit of creditors, files a
voluntary petition in bankruptcy or for reorganization, or is
adjudicated as bankrupt or insolvent, or has a liquidator or trustee
appointed over its affairs and such appointment shall not have been
terminated and discharged within thirty (30) days thereof; or
5. Upon ninety (90) days prior written notice to the Seller for any or no
reason whatsoever
11.3 Termination by Both Parties.
This Agreement may be terminated at any time upon the mutual written agreement
of both parties hereto.
11.4 Other.
Notwithstanding any provisions to the contrary, Sections 2.3(d), 6.0, 9.0, 10.0
and 12.12 shall survive the termination of this Agreement. In the event of
termination or expiration of this Agreement, except for a termination as
described in Sections 11.1 and 11.2, the provisions of this Agreement will
continue to apply to purchase orders accepted by Seller prior to the effective
date of such termination or expiration within ninety (90) days of the
termination effective date unless Buyer notifies Seller of its intent to change
such purchase order in connection with its notice of termination and pursuant to
the provisions set forth in Section 2.3.
12.0 MISCELLANEOUS
12.1 Entire Agreement.
This Agreement and its attachments constitute the entire agreement between the
parties regarding the contemplated transactions and supersede all prior
agreements and understandings between the parties relating thereto.
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12.2 Descriptive Headings.
The descriptive headings and sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
12.3 Interpretation.
Should any provision of this Agreement require judicial interpretation, it is
agreed that the court interpreting or construing the same shall not apply a
presumption that the terms hereof shall be more strictly construed against one
party by reason of the rule of construction that a document is to be construed
more strictly against the party who itself or through its agent prepared the
same, it being agreed that all parties, directly or through their agents, have
participated in the preparation or negotiation hereof.
12.4 Severability.
In case any one or more of the provisions contained in this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any respect,
except in those instances where removal or elimination of such invalid, illegal,
or unenforceable provision or provisions would result in a failure of
consideration under this Agreement, such invalidity, illegality, or
non-enforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
12.5 Amendments.
No modification, termination, extension, or renewal of any provision of this
Agreement shall be binding upon either party unless made in writing and signed
by an authorized representative of each of the parties.
12.6 Waiver.
No waiver of any breach of any provision of this Agreement shall constitute a
waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, nor shall it constitute a course of dealing and no waiver
shall be effective unless made in writing.
12.7 Notice.
All notices which either party hereto is required to or may desire to give to
the other party shall be in writing and shall be given by sending such notice to
the party signing this Agreement at the address set forth on the signature page
of this Agreement, or such replacement address as such party may supply in
accordance with this notification provision, by either: (i) personal delivery,
(ii) recognized overnight delivery service, or (iii) depositing such notice in
the United States Mail, properly addressed and postage prepaid for delivery.
12.8 Force Majeure.
(a) Performance of this Agreement shall be pursued with due diligence. However,
neither party shall be liable to the other for nonperformance or delay in
performance due to causes not reasonably within its control, including, but not
limited to, acts of civil or military authority, acts of God, war, riot or
insurrection, blockades, embargoes, sabotage, epidemics, fires, or floods.
(b) In the event of any force majeure occurrence, the disabled party shall use
its best efforts to meet its obligations as set forth in this Agreement. The
disabled party shall promptly, and in writing, advise the other party if it is
unable to perform due to a force majeure event, the expected duration of such
inability to perform and of any developments that appear likely to affect the
ability of that party to perform any of its obligations hereunder, in whole or
in part. Upon receipt of such notice, all obligations under this Agreement shall
be immediately suspended. If the period of nonperformance exceeds sixty (60)
days from the receipt of the
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notice of the force majeure occurrence, the party whose ability to perform has
not been so affected may terminate this Agreement by giving written notice to
the disabled party.
12.9 Third Party Beneficiary.
This Agreement is intended for the benefit of the parties and their permitted
assigns, and no other persons shall be entitled to rely upon this Agreement or
be entitled to any benefits under this Agreement.
12.10 Assignment.
Neither Buyer or Seller shall have the right to assign any of its rights under
this Agreement without the prior written consent of the other party hereto, and
no purported assignment shall be binding upon the non-consenting party.
Notwithstanding the above, Buyer may assign its rights under this Agreement to
any person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Buyer or a
successor in interest to the Buyer in the event of a merger or change in control
of the Buyer.
12.11 Independent Contractor.
Neither party shall, for any purpose, be deemed to be in a joint venture with,
or an agent of, the other party and the relationship between the parties shall
only be that of independent contractors.
12.12 Confidential Information.
Neither party shall use, or disclose to any third party, any confidential
information of the other party which has been disclosed to it in connection with
this Agreement including, without limitation, designs, plans, methods, processes
or specifications, provided, however, that Seller has the right to furnish
confidential information of Buyer to third parties if it is needed by such
parties in order to make parts for the Products, and provided further that the
third parties first agree in writing to hold such information in confidence and
use it only for the purpose of making such parts. Seller shall require all of
its employees, consultants and contractors to execute an invention assignment
and non-disclosure agreement in a form provided by or approved by the Buyer.
12.13 Advertising.
No advertising by Seller or Buyer shall display or contain any trademarks or
references to the other party or its customers without the prior written
approval of all parties referenced therein.
12.14 Compliance with the Laws.
Each of the parties shall comply with all federal, state, local and foreign
laws, rules and regulations applicable to its obligations under this Agreement
or to the Products supplied hereunder.
12.15 Applicable Laws.
This Agreement shall be construed in accordance with the laws of the State of
California, in the United States of America.
12.16 Jurisdiction and Venue.
The parties hereby agree that (a) venue for any legal action authorized
hereunder shall be in Santa Xxxxx County, California, and (b) jurisdiction shall
be vested exclusively in the Circuit Court of the Judicial Circuit in and for
Santa Xxxxx County, California, or if appropriate, in the United States District
Court for the Northern District of California.
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12.17 Attorney's Fees.
In the event that either party shall retain counsel to enforce any of the terms
hereof, the losing party shall pay the prevailing party all costs of
enforcement, including attorney's fees, court costs and expert witness fees,
whether or not suit is filed and whether incurred at trial, on appeal, in
bankruptcy or otherwise.
12.18 Full Payment Checks.
Seller may accept and deposit any checks marked "Payment in Full" or words to
the like effect without waiving its right to the payment in full under this
Agreement, UNLESS BUYER SHALL GIVE WRITTEN NOTICE TO SELLER IN COMPLIANCE WITH
SECTION 12.7 SPECIFYING THE AMOUNT IN DISPUTE AND THE BASIS THEREFORE, AND
STATING THAT THE CHECK IS BEING TENDERED AS FULL PAYMENT.
12.19 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the duly authorized representative of Buyer and Seller have
executed this Agreement on the dates shown below:
SELLER: BUYER:
GSS/ARRAY Technology SPECTRIAN
00 Xxx 0, Xxxx-Xxxx Xxxxxxxxxx Xxxxxx, 000 Xxxx Xxxx Xxxxx
Xxxxxxx, Bang pa-in, Ayudhaya, 13160 Xxxxxxxxx, XX 00000
Thailand Phone: (000) 000-0000
Phone: 000-00-00 350890
By: /s/ Xxxxx A Menues By: /s/ Xxxxxxx X. Greenslan
---------------------------------------- ----------------------------
(Signature of authorized representative)
NAME: Xxxxx X. Menues NAME: Xxxxxxx X. Greenslan
-------------------------------------- --------------------------
(type or print)
TITLE: COO--Asia/Envelope TITLE: Exec. VP and COO
------------------------------------- -------------------------
DATE: 20 July 98 DATE: July 31, 1998
------------------------------------- -------------------------
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