MANUFACTURING AGREEMENT
between
TANISYS TECHNOLOGY, INC.
00000 Xxxxxxxxxx Xxxx.
Xxxxxx, XX 00000
U.S.A.
and
SIEMENS COMPONENTS, INC.
00000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
U.S.A.
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INDEX TO AGREEMENT
1. BASIC AGREEMENT: SIEMENS - TANISYS
2. ATTACHMENT A: SIEMENS SPECIFIED MODULES AND LOOSE PARTS
3. ATTACHMENT B: ASSEMBLY, TEST AND REPAIR PRICES: MEMORY
MODULES (MM)
4. ATTACHMENT C: LOGISTICS/TECHNICAL TERMS OF DELIVERY
5. ATTACHMENT D: SIEMENS Rolling Forecast
6. ATTACHMENT E: SIEMENS Processing and Quality Specification
7. ATTACHMENT F: EDI Agreement
8. ATTACHMENT G: SIEMENS and TANISYS Listing of Contacts
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MANUFACTURING AGREEMENT
This Agreement made effective November 1st, 1996 between Tanisys Technology,
Inc. 00000 Xxxxxxxxxx Xxxx., Xxxxxx, XX 00000, U.S.A (TANISYS) and SIEMENS
Components, Inc. 00000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (SIEMENS)
(see Article 1.16).
WHEREAS, SIEMENS wants and TANISYS is willing to assemble quantities of
certain products exclusively for SIEMENS in accordance with these terms and
conditions, the parties agree:
1. PARTS OF AGREEMENT: DEFINITIONS
In this Agreement, the following expressions, except where the context
otherwise requires, shall have the following meanings:
1.0 "Affiliates" shall mean those corporate entities controlled
by or controlling, directly or indirectly, by capital or votes, either
SIEMENS or TANISYS, but only so long as the entities are so related.
1.1 "Contract products" (Products) shall mean those specific
Memory Modules (equipped printed circuit boards) defined in Attachment A.
1.2 "CONFIDENTIAL Information" shall mean all such
technical information as well as know-how (given orally, in writing or in
other tangible form) necessary for the manufacture of Products, which one
party shares with the other. "Confidential Information" includes the
specification necessary for the procurement of the components required for
the manufacture of Products, with the exception of DRAMs, as defined in
Attachment A.
1.3 "Effective Date" shall mean the date on which this Agreement
enters into force as set forth at the beginning of this Agreement.
1.4 "Date of Shipment" shall mean the date on which the Products
are shipped out "Ex-Works" TANISYS by SIEMENS' appointed forwarder.
1.5 "Purchase orders" (Orders) shall mean the order(s) issued by
SIEMENS confirming purchase of Products from TANISYS requiring delivery
within the time frame indicated in the order.
1.6 "Specification" means the technical description of goods
contained or referred to in the order.
1.7 "Allowed Capacity" is the capacity TANISYS has dedicated for
SIEMENS.
1.8 "Golden Devices" shall mean Products, tested by SIEMENS using
the Tester and the Test Programs as well the test protocols containing the
respective results.
1.9 "Subsidiaries" shall mean legal entities controlled directly
or indirectly, by capital or votes, by fifty percent or more by SIEMENS or
TANISYS, but only as long as the entities are so controlled.
1.10 "Requirements for Quality Assurance" shall mean the general
quality requirements for processing of Devices enclosed as Attachment E to
this Agreement, including any future updates or modifications of Attachment E.
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1.11 "Packing Specification" shall mean the specification
according to which the Products shall be packed and labelled by TANISYS using
the material as specified in the "Packing specification", which is part of
the "Processing specification".
1.12 "Processing specification" (see Attachment E) shall mean the
specification and documentation for testing, burn-in and packing as well as
specific quality requirements agreed upon in the written form between the
parties for processing of the Products. For each type of Products or a family
of Products, a "Processing specification" shall be agreed upon between the
parties.
1.13 "Electronic Mail", "Internet" or "Electronic Data
Interchange" (EDI) shall mean those communications governed by the EDI
Agreement attached as Attachment F.
1.14 "Ex Works TANISYS" shall mean that title and risk of loss to
the Products will be transferred FROM TANISYS at the time at which TANISYS
deposits the properly packed Products with the freight carrier designated by
SIEMENS at TANISYS' facilities, or delivered to customer location. TANISYS
will use SIEMENS' shipping accounts when possible.
1.15 "FCA (Free Carrier) TANISYS" shall mean that SIEMENS will
provide the DRAMs to TANISYS' facilities for use per this Manufacturing
Agreement with all related charges until they reach that site paid by SIEMENS.
1.16 "SIEMENS" means legal entity, and means the list of contacts
as specified in Attachment G.
2. SCOPE OF WORK
Subject to these terms and conditions, TANISYS shall, in accordance to
instructions from SIEMENS, manufacture, test and ship quantities of Products
to SIEMENS or to those companies or locations to which SIEMENS directs
(Customers). On acceptance by SIEMENS or upon receipt by the Customer of
those Products, TANISYS shall be paid the amounts specified in Attachment B
for such Products.
Upon TANISYS receiving products and signing a "Warehouse Receipt" for any
given shipment, the quantity and description thereon will be deemed an
absolute indication that TANISYS has accepted risk of loss for that quantity
of that item. The only exception will be that TANISYS will be allowed until
the close of business twenty-four (24) hours after receipt of any given
shipment to advise in writing (by FAX) as to any discrepancies at the carton
level; within forty-eight (48) hours at the part number and ident number
detail level.
3. DELIVERY BY SIEMENS
3.1 SIEMENS or its "affiliates" shall deliver to TANISYS free of
charge, subject to respective orders (on the basis "FCA" TANISYS) the
quantity of DRAMs (as defined in Attachment A) necessary to fulfill the
Contractor Manufacturer's obligation according to Article 4 and the Orders
placed by SIEMENS as per Article 7 or 8 below.
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4. QUALITY ASSURANCE
4.1 QUALITY ASSURANCE MANUAL AND WORKMANSHIP STANDARD
TANISYS shall prepare and submit to SIEMENS, within 30 days following the
Effective Date of this Agreement, an official quality assurance Manual and
workmanship standard and shall implement such standard. SIEMENS may request
alterations to the manual and workmanship standard in order to improve the
overall product quality of the Products. Notwithstanding the above, the
responsibility for such Manual and workmanship standard shall rest with
TANISYS.
4.2 GENERAL INSPECTION SYSTEM
TANISYS shall provide and maintain an inspection system acceptable to SIEMENS
Quality Assurance covering the Products. Records of all inspections shall be
kept complete and available for review by the SIEMENS Quality Assurance
representative in accordance with the data retention periods specified in the
Processing and Quality specification (Attachment E).
4.3 FIRST ARTICLE TEST
If SIEMENS chooses to perform a first article test upon the Products, then
such test may be performed at TANISYS' premises before delivery of the first
quantity shipment of each type or any modified version thereof and further
deliveries shall be subject to successful performance of such test.
Such tests shall be performed at no cost to SIEMENS by TANISYS and under
the observation of the SIEMENS Quality Assurance representative where
necessary.
4.4 QUALIFICATION
Reference devices for the various packages will be submitted by TANISYS
during the initial production to SIEMENS for qualification. The production
shall not start until approval is given by SIEMENS after the qualification
tests on these parts.
4.5 AUDITS
SIEMENS reserves the right to conduct an audit of the Quality Assurance
system or Process Conformance of manufacturing and other fields with respect
to quality, reliability and reporting.
4.6 RECORD RETENTION
Records of all Production and quality data shall be kept for tracking and
available for review by SIEMENS. The data retention period to be as specified
in the Processing and Quality specification (Attachment E).
4.7 FINAL INSPECTION / TEST
TANISYS shall conduct a final inspection test on each Product (100% test)
prior to shipment. Such test shall demonstrate compliance with the applicable
specification of the Products in question. The parties will agree on the
details of such final inspection tests and document same in a writing signed
by both parties (Attachment E).
4.8 SIEMENS PERSONNEL
SIEMENS shall be responsible for the expense of sending any SIEMENS personnel
to TANISYS' premises.
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4.9 SIEMENS ACCEPTANCE AT DESTINATION All
Products ordered are subject to final acceptance at SIEMENS
or its Customers. SIEMENS or its customers may perform an
incoming inspection test based on random samples according
to the quality assurance instructions. If any Products
should fail to pass such test as a result of TANISYS' work,
SIEMENS will notify TANISYS of such defects in writing,
i.e. by E-Mail or FAX. If the Products fail to pass such
test based upon an agreed and correlated test method,
SIEMENS may return the failed Products for rework by
TANISYS free of charge with all handling, packing,
forwarding transport cost and insurance cost incurred to be
paid by TANISYS, and
a) TANISYS shall, upon request, promptly supply replacement, or
b) TANISYS shall, if SIEMENS requests it, replace the failed Products
delivery lot free of charge on an emergency basis, or
c) SIEMENS may return the failed Products to TANISYS at no cost to SIEMENS
for respective credit if the failed Products cannot be reworked to conform
with the agreed specification.
5. CHANGE IN PRODUCTS
5.1 SIEMENS may request technical changes of the Products
relating to improvement, reliability, serviceability or to requests of the
market, customers, or requirement of authorities and TANISYS must comply with
such change request. TANISYS will inform SIEMENS within ten (10)
working-days after receiving such requests of the result of its evaluation of
the change in writing. The parties shall mutually agree upon prices and
implementation schedules for such changes.
5.2 If TANISYS proposes to modify or change the Products so as to
deviate from the specifications set forth in Attachment A to this Agreement,
TANISYS shall inform SIEMENS in writing. SIEMENS may approve or disapprove
such modifications or change request and will inform TANISYS in writing
thirty (30) working days after receipt of notice of such a change in request.
Such a proposed modification or change may only be implemented by TANISYS
upon the express approval by SIEMENS. When modification or changes are
approved and introduced into manufacturing, TANISYS shall inform SIEMENS as
to final technical version of change and when the first shipment may be
expected. SIEMENS will then determine how many units of the ordered or
forecasted amount shall be shipped without the modifications or changes until
first shipment takes place according to the new revision level.
5.3 Regarding changes as per Article 5.2 above, TANISYS shall,
upon request, submit to SIEMENS free of charge, samples of the modified
Products at least thirty (30) days before first delivery of said products,
for testing purposes.
6. PURCHASE OF PRODUCTS
The scope of TANISYS' delivery and SIEMENS' purchase obligations shall depend
on the forecasts and Orders placed by SIEMENS in writing.
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6.1 Issue of "Purchase forecast"
a) Two weeks before the end of each quarter, SIEMENS shall forward a
"Purchase Forecast" (Forecast) setting forth the anticipated demand for
Products by SIEMENS for the succeeding six (6) quarters. The Forecasts are
projections for planning purposes only (see Attachment C).
b) TANISYS shall ensure sufficient material (such as Printed Circuit Boards
(PCBs) and Packing Material) as specified in Attachment C. If any change in
the design of the Products requires sudden change of PCBs or packing
material, or if a Products is terminated and that circumstance then renders
TANISYS' specific SIEMENS' stock as obsolete or unusable, SIEMENS shall be
financially responsible for TANISYS' stock of PCB and Packing Material IN the
quantities specified in Attachment C.
6.2 Issuing of Order
a) SIEMENS shall issue to TANISYS a firm Order to purchase the quantity and
type of Products. Each Order shall be placed in writing via EDI, fax or
Internet. See Attachment C.
b) The Order shall govern all requirements of the Products by SIEMENS and
deliveries by TANISYS. Only the quantities and type of Products given therein
are firm order commitments.
c) All Orders have to be confirmed within one (1) working day by EDI, fax or
Internet (see Attachment C).
7. LEAD TIMES, EMERGENCY ORDERS
Lead times, "Ex-Works" TANISYS shall for either Products or Replacement
products as specified in Attachment C.
Leadtimes for Emergency orders are separately defined in Attachment C. Any
delay in delivery or pre-scheduled Products to SIEMENS affected by the
emergency order shall not be construed as a delay under Article 9.3, unless
total deliveries made within the relevant period concerned is less than the
quantity deliverable by TANISYS fully utilizing the declared capacity of
TANISYS which is dedicated for SIEMENS' Products. In such case of
under-utilization and delays in delivery, TANISYS shall be liable under
Article 9.3 for the portion short delivered.
Deliveries under emergency orders shall be effected separately. TANISYS shall
notify SIEMENS of the dispatch date (flight number, AWB number) by EDI, fax
or Internet.
8. DELIVERY OF PRODUCTS/LATE DELIVERIES
8.1 Delivery shall be effected on the basis delivered "Ex-Works"
TANISYS to SIEMENS' appointed forwarder. Each delivery shall be accompanied
with appropriate shipping papers. All dispatch notes and/or invoices must
include the Order number, the part numbers of Products shipped and any other
information specified in the Order.
8.2 Title and risk of loss shall pass upon delivery of product to
SIEMENS' specific customer locations or to SIEMENS' appointed freight
forwarder. SIEMENS shall indicate, in writing, a specific freight forwarder
or means of transportation or routing to TANISYS and TANISYS shall comply
with such directions. The Products shall be packed suitable for road / air
transportation as agreed with the SIEMENS' appointed freight forwarder.
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8.3 DELAYS
a) TANISYS shall make its best effort to ensure on-time delivery of the
Products. If TANISYS is in default with the delivery of Products except by
reasons of Force Majeure, Article 15, and/or delayed delivery of parts and
components supplied by SIEMENS, SIEMENS may claim liquidated damages in the
amount of 0.2% (two-tenths percent) of the Tanisys invoice as per Attachment
B "Assembly Pricing" for the respective late delivered Products for every
calendar day of the delay from the "Date of Shipment" which is confirmed or
deemed accepted by TANISYS according to Section 6.2. The liquidated damages
may accrue up to a maximum amount of 5% (five percent) in total or five
thousand dollars ($5,000.00) maximum, notwithstanding any other rights
SIEMENS may have.
b) In addition to these rights, any delays extending for more than a week,
regardless of the cause (even if caused by late deliveries of TANISYS'
subcontractors), SIEMENS shall be entitled to cancel the order wholly or in
part without incurring any liability, and shall re-order the quantities
according to then existing needs of SIEMENS after the circumstances
interrupting the delivery have ended.
8.4 If any circumstances should arise which could result in a
delayed delivery of parts to TANISYS or of Products by TANISYS, the parties
shall promptly notify each other.
8.5 TANISYS shall only deliver full boxes of Products. Any
incompletely filled boxes shall be retained by TANISYS and delivery made
together with Products in the next Production Lot.
TANISYS shall deliver to SIEMENS on the 15th of each month:
a) All incomplete filled boxes of Products, and
b) All scrap DRAMs and modules for disposal by SIEMENS.
9. PRICES AND TERMS OF PAYMENT
9.1 Prices for the Products as stated in Attachment B to this
Agreement are in U.S. Dollars, on the basis of delivery "Ex-Works" TANISYS
and including appropriate packaging as specified by SIEMENS.
9.2 PRICING ADJUSTMENTS
a) The prices stated in Attachment B are fixed for the period stated in
Attachment B except in the case of changes under Article 5. The parties will
review the market conditions, currency effect, material and labor cost
influencing the price to be fixed for the next SIEMENS fiscal year (October
through September) in good faith, on an annual basis, within the period of
the last quarter of each SIEMENS fiscal year and mutually agree and decide
the price applicable for the next SIEMENS fiscal year which price shall
reflect the result of reviewing the aforesaid factors.
b) However, the parties will review, in good faith, the market conditions,
currency effect, material and labor cost specifically costs affecting printed
circuit board and packing material and volumes influencing the prices, on a
quarterly basis, three weeks before the end of each quarter and will mutually
update the price applicable for the next SIEMENS' quarter to reflect the
result of reviewing these factors.
c) If the parties cannot work out a mutually acceptable solution, either
party may terminate this Agreement with six (6) months written notice.
Notwithstanding such right of termination, TANISYS shall continue to deliver
Products at the most recent contractual prices during this six months'
period. However, if the parties come to an agreement for solution within such
six (6) months from the notice of termination, then the new price shall be
supplied retro-actively from
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the date of termination notice and the respective party shall compensate the
other party the difference of the Purchase Price accrued from that date.
9.3 TERMS OF PAYMENT
Payment shall be due thirty (30) days net after receipt of the respective
invoice from TANISYS.
10. WARRANTY / DEFECTS OF EPIDEMIC NATURE
TANISYS warrants that the Products conform with the applicable specifications
and are free from defects in material and workmanship subject to these
conditions:
10.1 The warranty period for the Products shall end at the
earlier of thirty-six (36) months after the delivery to Customers or receipt
of the Products by SIEMENS.
10.2 If any Products supplied by TANISYS fails to conform with
this warranty due to manufacturing defects, TANISYS shall replace at its sole
cost and expense such defective Products without delay after receipt of
SIEMENS' return shipment. The expenses required for returning such defective
Products to TANISYS shall be borne by SIEMENS; the expenses required for
re-sending Products to SIEMENS or to its Customer shall be borne by TANISYS.
If, within thirty (30) days after receipt at TANISYS, such replacement
Products are not shipped, SIEMENS shall have the right to replace the
defective Products with products from TANISYS' latest shipment or SIEMENS'
stock which shall then be deemed as replacement under warranty. TANISYS
shall ship on an emergency basis and on its own account such number of
Products as to make up for the thus diminished SIEMENS stock.
10.3 Replacements shall be subject to a new 36 month warranty
period, beginning with the receipt of the product by SIEMENS or its Customer.
10.4 If defects or malfunctions which appear to be excessive or
of an epidemic nature result from the manufacturing or use of unsuitable
materials by TANISYS, then TANISYS shall take appropriate actions to remedy
such defects in agreement with SIEMENS and in accordance with reasonable
standards applicable to the individual circumstances. TANISYS shall inform
SIEMENS about its actions to be taken within two (2) weeks after notification.
10.5 The provisions of this Article 10 shall also apply after
termination of this Agreement.
10.6 If any technical problem, defect or malfunction occurs,
SIEMENS will promptly be informed by TANISYS. TANISYS will immediately start
investigations and supply a first substantial answer within five (5) working
days after receipt of SIEMENS' notification.
10.7 TANISYS does not warrant consigned DRAMs, except as to
damage or defects which result from TANISYS' storage or use of the consigned
DRAMs.
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10.8 TANISYS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES EXCEPT
THOSE SPECIFICALLY PROVIDED HEREIN, INCLUDING WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE AND OF MERCHANTABILITY.
11. LIABILITY, RESPONSIBILITY
11.1 It is SIEMENS' responsibility to defend and resolve at
SIEMENS' expense any dispute arising from a claim that the Products infringe
a third party's patent to the extent that the alleged infringement is due to
the use of SIEMENS Information and/or DRAMs supplied by SIEMENS and
incorporated in Products manufactured by TANISYS.
11.2 Notwithstanding Section 11.1 above, it is TANISYS'
responsibility to defend or otherwise resolve at TANISYS' expense any
dispute arising from a claim that the Products infringe a third party's
patent, due to specific components in Products manufactured by TANISYS or
purchased by TANISYS from any third source or due to the manufacturing
process employed by TANISYS unless directly specified by SIEMENS'.
11.3 If a third party alleges an infringement of its patent, then
the party to this Agreement against which this claim is raised shall
immediately inform the other party and both parties shall discuss how to
handle such claim or lawsuit in the best way possible; such discussion
limited to consultations only.
11.4 SIEMENS shall indemnify and hold TANISYS harmless against
any claims, costs and expenses due to non-patent claims related to the
Products which arise from TANISYS' use of SIEMENS SUPPLIED Information or
DRAMs supplied by SIEMENS.
11.5 TANISYS shall indemnify and hold SIEMENS (and/or SIEMENS'
Subsidiaries/Affiliates and/or its Customers) harmless against any claims,
costs and expenses due to any other liability than SIEMENS liability as per
Sections 11.1 and 11.4. TANISYS may at SIEMENS' request maintain general
comprehensive liability insurance in a minimum amount of $------; in such
case SIEMENS shall be named as an additional insured. SIEMENS reserves the
right to carry such general comprehensive liability insurance concurrent with
existing SIEMENS insurance policies in effect.
11.6 These indemnities are conditioned upon the party seeking
indemnification promptly notifying the other party; making no admissions of
liability and cooperating in the defense of the claim.
11.7 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM PERFORMANCE
UNDER THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
12. ARBITRATION
12.1 SIEMENS and TANISYS shall attempt in good faith to resolve
any dispute arising out of or relating to this Agreement promptly by
negotiation between executives who have authority to
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settle the controversy. The executive will be at the CEO, CFO or COO level
and will not have had direct responsibility for administration of this
Agreement. Either party may give the other written notice of any dispute not
resolved in the ordinary course of business. Within fifteen (15) days after
delivery of the notice the party receiving the notice shall submit to the
other a written response.
The notice and response shall include a statement of the party's positions
regarding the matter in dispute, a summary of arguments in support, and the
name and title of the executive who will represent that party and any other
person who will accompany that executive. Within 30 days after delivery of
the initial notice, the designated executives shall meet at a mutually
acceptable time and place, and thereafter as often as they reasonably deem
necessary to attempt to resolve the dispute. All reasonable request for
information made by one party to the other shall be honored in a timely
fashion.
All negotiations conducted pursuant to this Section 12 (and any of the
party's submissions in contemplation hereof) shall be kept confidential by
the parties and shall be treated by the parties and their respective
representatives as compromise and settlement negotiations for purposes of the
Federal Rules of Evidence and any similar state rules.
12.2 If any matter in dispute arising under this Agreement has
not been resolved within sixty (60) days after delivery of the notice or if
the parties fail to meet within thirty days (30) days, the matter will be
submitted to binding arbitration. Either party may initiate binding
arbitration as contemplated herein.
Either party (the claimant) may give written notice to the other
(respondent) of its intention to arbitrate, which notice shall contain a
statement setting forth the nature of the dispute, the amount involved, if
any, and the remedy sought, and file with the appropriate office of the
American Arbitration Association three copies of the notice and three copies
of the arbitration provision of this Agreement, together with the appropriate
filing fee as provided in the Schedule on page 21 of the AAA Commercial Rules
as Amended and Effective on November 2, 1993.
The AAA shall give notice of such filing to the respondent which may file an
answering statement in duplicate with the AAA within ten days after notice
from the AAA, in which event the respondent shall at the same time send a
copy of the answering statement to the claimant. If a counterclaim is
asserted, it shall contain a statement setting forth the nature of the
counterclaim, the amount involved, if any, and the remedy sought. If a
counterclaim is made, the appropriate fee shall be forwarded to the AAA with
the answering statement. If no answering statement is filed within the
stated time, it will be treated as a denial of the claim. Failure to file an
answering statement shall not operate to delay the arbitration.
12.3 The AAA Commercial Arbitration Rules, as modified or
revised by the provisions herein, shall govern these proceedings. The
arbitration shall be conducted by three arbitrators, one selected by each
party and the third selected by those two arbitrators. After the arbitrators
are selected, the parties agree to try in good faith to settle the dispute by
mediation administered by the American Arbitration Association under its
Commercial Mediation Rules.
12.4 The place of the arbitration proceedings shall be San
Francisco, California if TANISYS initiates the arbitration and in Austin,
Texas if SIEMENS initiates the arbitration. The decision of the arbitration
panel shall be rendered in writing.
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12.5 The parties agree that procedural rules will be those of the
State in which the arbitration is to OCCUR, as amended by this Agreement. In
addition, the parties agree that discovery will take place informally to the
extent possible through document production, interrogatories limited to
identification of witnesses and documents and no more than five (5)
depositions per side.
13. SUBSTANTIVE LAW
All disputes shall be settled in accordance with the provisions of this
Agreement and all other Agreements regarding its performance, in accordance
with the substantive law of the State identified in Section 12.4 (except for
its conflict of laws provision) without reference to other law. The United
Nations Convention on contracts for the International Sale of Goods of April
1, 1980 shall not apply.
14. CONFIDENTIALITY
14.1 The parties undertake to keep secret, even after termination
of this Agreement, Confidential Information furnished hereunder insofar as,
and as long as, it has not otherwise lawfully come into the public domain or
the party which disclosed the information has not consented in writing that
it may be disclosed to third parties.
14.2 The parties further agree that it will only use Confidential
Information supplied under this Agreement for purposes set forth in this
Agreement.
14.3 Information shall not be subject to the above
confidentiality provisions to the extent that a party can demonstrate that
the information
- is known to or is in the possession of that party before transmission by
the other party;
- became legally available to that party from a source other than the other
party or is in or passed into the public domain other than by reach of this
Agreement;
- is developed independently by that party;
- the disclosure of which is expressly authorized by the other party.
14.4 Except as required by law, neither party shall disclose the
existence of this Agreement, including insurance coverage and values
thereunder, except as mutually agreed.
15. FORCE MAJEURE
Neither party shall be liable to the other for failure or delay in the
performance of any of its obligations under this Agreement for the time and
to the extent such failure or delay is caused by Force Majeure such as, but
not limited to, riots, civil commotion, wars, hostilities between nations,
governmental laws, orders or regulations, actions by the government or any
agency thereof, storms fires, strikes, lockouts, sabotages, explosion or any
other contingencies beyond the reasonable control of the respective party and
of its sub-contractors or supplier. In such events, the affected party shall
immediately inform the other party of such circumstances together with
documents of proof, if any, and the performance of obligations hereunder
shall be suspended during, but not longer than, the period of existence of
such cause and the period reasonable required to perform the obligations in
such cases.
Should a circumstance of Force Majeure continue without interruption for a
period of more than six (6) months, then either party has the right to
forthwith terminate this Agreement and/or the respective
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individual orders by registered letter. The parties may also negotiate for a
reasonable extension or adjustment of this Agreement.
16. TERM AND TERMINATION
16.1 This Agreement shall be in effect for a period of two (2)
years and shall be extended automatically by periods of one year each unless
terminated by written notice at least six (6) months before the end of such
2 year period or the end of a one year extension period. The term of notice
shall be six (6) months.
16.2 This Agreement may by written notice be prematurely
terminated with immediate effect by the party having such right as herein
provided, and notwithstanding any other rights such party may have, upon the
occurrence of either one or more of the events stated below:
- by either party if the other party voluntarily files a petition in
bankruptcy or has such a petition involuntarily filled against it (which
petition is not discharged within ninety (90) days after filing), or is
placed in an insolvency proceeding, or if an order is entered appointing a
receiver or trustee for a levy or attachment is made against a substantial
portion of its assets which order shall not be vacated, set aside or stayed
within thirty (30) days from date of entry, or if any assignment for the
benefit of its creditors is made.
- by either party if the other has failed substantially in the performance of
any material contractual obligation, provided that such default is not
remedied to the other party's satisfaction, within sixty (60) days after
written notice to the other party specifying the nature of such default and
requiring remedy of the same.
16.3 A waiver of any default by either party of any of the terms
and conditions of this Agreement but shall apply solely to the instances to
which such waiver is granted.
16.4 In the event of termination of this Agreement, SIEMENS shall
be entitled to request delivery of, and TANISYS shall be obliged to deliver,
subject to the terms of this Agreement, all quantities of Products ordered
from TANISYS before the Effective Date of termination.
17. PROVISIONS COVERING THE TIME AFTER TERMINATION
17.1 After termination of this Agreement, TANISYS shall continue
to supply to SIEMENS according to the terms of this Agreement Products which
SIEMENS needs in order to fulfill contractual delivery obligations which have
been entered into on the basis of quotations before termination of this
Agreement; SIEMENS will continue to meet its payment obligations under this
Agreement.
17.2 When this Agreement is terminated, either party shall, upon
written request by the other, return all Confidential Information received,
as well as all copies made of such Confidential Information.
17.3 This Article 17 shall survive the termination of this
Agreement.
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18. MISCELLANEOUS
18.1 For orders placed by SIEMENS under this Agreement no other
conditions than those specified herein shall be applicable.
18.2 All changes and amendments to this Agreement must be in
writing to be valid. This requirement of written form can only be waived in
writing.
18.3 Notices and communications between TANISYS and SIEMENS shall
be given in writing or by FAX or E-Mail in English Language to the following
addresses of the parties or to such other address as the party concerned may
subsequently notify in writing to the other party:
If to TANISYS: TANISYS Technology, Inc.
00000 Xxxxxxxxxx Xxxx.
Xxxxxx, XX 00000
FAX: 512/000-0000
If to SIEMENS: SIEMENS Components, Inc.
00000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxxx Du Preez,
Director, Memory Products
FAX: 408/000-0000
18.4 TANISYS shall not be permitted to assign this Agreement, or
parts thereof, or any right or obligation hereunder, wholly or partially to
any third party (which term includes "Subsidiaries") without the prior
written consent of SIEMENS. SIEMENS shall not be permitted to assign this
Agreement, or rights or obligations hereunder, wholly or partially to any
third party, without the prior written consent of TANISYS. However, SIEMENS
shall be permitted to assign the contract to any entity formed by or
resulting from changes in the structure of SIEMENS activities in the U.S., so
long as the resulting entity continues to be part of the Siemens family.
18.5 If for any reason a court of competent jurisdiction finds
any provision of this Agreement, or portion thereof, to be unenforceable,
that provision of this Agreement shall be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder of
this Agreement shall continue in full force and effect.
18.6 The titles to the Articles of this Agreement are for
convenience or reference only and are not part of this Agreement and shall
not in any way affect its interpretation.
18.7 When this Agreement becomes effective, it shall constitute
the entire understanding and agreement between the parties with respect to
the manufacture of Products, and shall supersede and cancel all previous
agreements, negotiations and commitments, either oral or written.
18.8 All rights and remedies conferred under this Agreement or by
any other instrument or law shall be cumulative, and may be exercised
singularly or concurrently. Failure by either party to enforce any
provision of this Agreement shall not be deemed a waiver of further
enforcement of that or any other provision.
18.9 THE PARTIES agree to comply with all U.S. federal, state,
and local laws and regulations that are applicable to the Products.
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19. EXPORT REGULATIONS
SIEMENS Information and supplies and products to be provided under this
Agreement are subject to governmental export regulations and the obligations
to provide same are subject to receipt of appropriate approvals.
TANISYS agrees to use the freight carrier so designated by SIEMENS which will
handle all coordination, brokerage and customs activities for all export
activity.
20. ORDER OF PRECEDENCE
In the event of any contradiction occurring between the various documents
contained in this Agreement, the order of precedence shall follow the order
listed below with the first item (1) having first precedence and the last
item enjoying lowest precedence.
1. This AGREEMENT: SIEMENS TANISYS
2. ATTACHMENTs: In ascending Order (A, B, ....)
15
IN WITNESS THEREOF, the parties hereto have caused this Manufacturing
Agreement to be executed by their duly authorized representatives as of the
date first written above.
TANISYS TECHNOLOGY, INC. SIEMENS COMPONENTS, INC.
__________________________ __________________________________
/s/ XXXX X. XXXXXXXXX /s/ XXXXXXXX DU PREEZ
__________________________ __________________________________
By By
XXXX X. XXXXXXXXX XXXXXXXX DU PREEZ
__________________________ __________________________________
Printed Name Printed Name
PRESIDENT & CHIEF OPERATING OFFICER DIRECTOR, MEMORY PRODUCTS
___________________________________ __________________________________
Title Title
11/20/96 11/20/96
___________________________________ __________________________________
Date Date
/s/ Xxx X. Xxxxx /s/ Xxxxxxxxxx Xxxxxx
XXX XXXXX XXXXXXXXXX XXXXXX
___________________________________ __________________________________
Printed Name Printed Name
CHIEF FINANCIAL OFFICER DIRECTOR CORPORATE CONTROLLING
___________________________________ __________________________________
Title Title
11/20/96 11/21/96
___________________________________ __________________________________
Date Date
16