ADEPT TECHNOLOGY / ELECTRONIC MANUFACTURING SYSTEMS
Table of Contents
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TITLE PAGE
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REPRESENTATIONS 3
PURPOSE 3
TERM OF AGREEMENT 3
PRODUCTS AND SERVICES 3
PRODUCT AND BUSINESS CONFIDENTIALITY 3
PROPRIETARY DATA 3
TECHNICAL COMMUNICATIONS 3
APPLICABLE DOCUMENTS 4
NO COMPONENT SUBSTITUTION 4
ENGINEERING CHANGE ORDERS, PROCESS CHANGE NOTICE AND DEVIATIONS NOTICES 4
PROCESS CHANGE NOTIFICATION 4
NEW PRODUCT DEVELOPMENT PRICING 4
PURCHASE ORDERS/FORECASTS 4
PURCHASE COMMITMENT 5
ORDER CANCELATION 5
PRICE LIST 5
PREMIUM DELIVERY PERFORMANCE AND CHARGES 5
PAYMENT TERMS 5
COST REDUCTIONS 5
PRICING MODEL 6
SEMI-ANNUAL COST REVIEWS 6
CONTINUOUS PROCESS IMPROVEMENT (CPI) PROGRAM 6
PROGRAM MANAGEMENT REVIEW MEETINGS 6
**** - Indicates confidential information that has been omitted pursuant to a
request for confidential treatement and filed separately with the Securities and
Exchange Commission.
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TITLE PAGE
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JIT KANBAN DELIVERY PROGRAM 7
PRODUCT TESTING 7
PACKAGING AND MARKING 7
SHIPPING RESPONSIBILITIES 7
EARLY/DELIVERIES 7
OVERSHIPMENTS 7
QUALITY ASSURANCE 7
PROCESS CONTROL 7
WORKMANSHIP 7
CONTROL OF PURCHASES 8
RECEIVING INSPECTION 8
IN-PROCESS INSECTION 8
FINAL ACCEPTANCE TEST 8
DATA REPORTING AND RECORDS 8
FIRST ARTICLE DATA 8
CORRECTIVE ACTION 8
WARRANTY 9
REPAIR OF PRODUCT AFTER WARRANTY PERIOD 9
NO TROUBLE FOUND 9
UNAUTHORIZED CHANGES 9
ASSIGNMENT 9
FORCE MAJEURE 9
INDEMNIFICATION AND LIMITATION OF LIABILITY 10
INFRINGEMENT 10
TERMINATION 10
GOVERNING LAW AND ARBITRATION 10
GENERAL 10
EXECUTION OF AGREEMENT 11
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ADEPT TECHNOLOGY / EMS AGREEMENT
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REPRESENTATIONS
This is an Agreement between Adept Technology, Inc. located at 150 Rose
Orchard Way, San Jose, California 95134 ("Buyer"), and Electronic
Manufacturing Systems, Inc., located at 120 9th Avenue, Longmont,
Colorado 80501 ("Seller").
PURPOSE
This Agreement is written and executed in good faith on 8-28-97 (the
"Effective Date") by both parties, with the mutual interest of
developing a long lasting business relationship that will be mutually
profitable and successful. In executing this Agreement the parties
hereto declare they are each independent contractors and the
transactions described in this Agreement constitute the extent and
total relationship of the parties.
TERM OF AGREEMENT
The Term of this Agreement shall be three (3) years from the Effective
Date, unless either party initiates formal notification of termination.
Thereafter, this Agreement may be extended by mutually signed, written
amendment.
PRODUCTS AND SERVICES
Buyer agrees to purchase cable assemblies (the "Products") as specified
by written purchase orders, and Seller agrees to deliver such Products
in compliance with Buyer's purchase order documents, and mutually
agreed specifications and Seller's order acknowledgments. Buyer and
Seller agree to consider other products, assemblies and/or services
that are compatible with each other's business purpose and end products
and services as a means of enhancing and further developing the success
of this business relationship.
PRODUCT AND BUSINESS CONFIDENTIALITY
The partnership, product assembly and working relationship between
Buyer and Seller are mutually considered a special relationship.
Information or disclosed knowledge may be considered by either party to
be Company Confidential, especially related to potential new products,
new or changing product markets and related business actions and
conditions. It is expected, as an integral part of the contractual and
partnership relationship, that such discussions, or transmitted or
otherwise disclosed information, should be treated as strictly Company
Confidential between both parties, their employees and applicable
suppliers. Neither party shall intentionally or unintentionally
discuss, disclose or otherwise transmit any product, product market or
other technical or business information with any third party, whether
company or individual, including marketing or advertising of its
relationship and/or photographs of processes or products, without the
specific advance knowledge and written consent of the other party to
this Contract.
PROPRIETARY DATA
All specifications, drawings or other documents provided by the Buyer
to pursuant to this Agreement are property of Buyer and as such, shall
be considered Company Confidential by Buyer. Seller shall not copy,
duplicate or transfer any such information for purposes other than may
be required to perform to the requirements of this Agreement. This
Agreement and amendments thereto and all documentation, written
procedures, purchase orders, order acknowledgments and/or written
correspondence shall be considered Company Confidential between the
parties regardless of whether or not the written documentation is so
marked. All business and technical discussions between Buyer's and
Seller's employees shall be considered Company Confidential and all
information related to such discussions shall not be discussed with any
other parties.
TECHNICAL COMMUNICATIONS
Technical discussions related to this Agreement between the Buyer's and
Seller's engineering, manufacturing and/or quality personnel, are
hereby authorized to preclude misunderstandings or misinterpretations.
However, all changes in the contractual scope of work, pricing or
delivery schedule, materials or data related to this Agreement shall be
effective only if mutually agreed by a Buyer change order and Seller
order acknowledgment
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APPLICABLE DOCUMENTS
All deliverables under this Agreement shall be manufactured, assembled
or otherwise modified or value added, in accordance with the Buyer's
specifications and/or drawings and other process documentation as
mutually agreed between Buyer and Seller.
NO COMPONENT SUBSITIUTION
Seller shall not deviate from the contractually specified materials,
parts or components designated on by the Buyer's purchase order or
Approved Supplier Listing (ASL) or any related specification, drawing
or other contractual document required in the performance of
manufacturing and delivering the product requirements on the face of
any of the Buyer's purchase order / subcontract, without written fax,
letter or change order approval specifically issued by the Buyer. None
of the Buyer's employees of Adept Technology or its sub-tier suppliers
or subcontractors, shall be authorized to approve any substitute
materials, piece parts, or components, other than the Buyer and/or
Quality Engineer or other duly authorized Purchasing or Quality
personnel of Adept Technology, Inc.
ENGINEERING CHANGE ORDERS, PROCESS CHANGE NOTICES AND DEVIATION NOTICES
It is recognized that Seller will be asked to implement Buyer's
Engineering Change Orders (ECO's), Process Change Notices and Deviation
Notices in a timely manner. Seller shall issue, within 5 (five)
business days, a quotation in response to the foregoing showing all
charges associated with documentation, labor, material and
administrative costs. Implementation will be mutually agreed by the
issuance of Buyer's purchase order or change order and by Seller's
order acknowledgment. Buyer agrees to pay Seller for all costs incurred
by Seller relative to orders released and confirmed by Seller prior to
the implementation of the mutually agreed ECO, deviation or process
change.
PROCESS CHANGE NOTIFICATION
Seller guarantees to Buyer that in the event of a planned process
change by Seller that could potentially affect form, fit or function,
Seller will notify Buyer in writing ninety (90) days prior to the
change. Additionally, Seller guarantees to submit, if requested, a
sufficient sample size to Buyer within a minimum of sixty (60) days
prior to such effective change date, for purposes of Buyer
re-qualifying Seller for this agreement. In the event the Buyer cannot
re-qualify Seller, Seller agrees to continue to supply the items under
the "old" process, to Buyer for the duration of this contract, or until
Buyer can locate an acceptable source for items, whichever occurs
first.
NEW PRODUCT DEVELOPMENT PRICING
Seller agrees to provide facilities, test and related equipment, and
prototyping engineering and test manpower in support of Buyer's
requirements for new product development. Initial piece part and
materials requirements may be secured from Seller's inventory or
through Seller's buying capability, or at the option of the Buyer, as
consigned kits of parts and materials for prototype assembly and later
for initial production runs. In all aspects of design development,
parts and materials procurement and assembly and test, Seller agrees to
provide accelerated fast-turn support to Buyer in new product
development. This activity will provide an opportunity for additional
business and/or or ensure continuation of business to Seller as new
product replacements and/or upgrade design changes obsolete Buyer's
existing products.
PURCHASE ORDERS / FORECASTS FOR PRODUCTION REQUIREMENTS
A. Buyer shall provide Seller with a minimum of six (6) month forecast,
of which the first three (3) months will be covered by signed
purchase orders. Seller will procure parts and materials per Buyer's
purchase order and forecast quantities based on lead-time and lot
size agreements in place.
B. Seller shall promptly respond within five (5) working days to
Buyer's forecasted changes, indicating acceptance and/or any cost
premiums that may be required in materials or labor to satisfy such
changes. Buyer shall acknowledge acceptance and any cost changes, or
negotiated changes thereof, via a written purchase order or change
order.
C. Seller shall provide a list of Long Lead Items and a Lot Size Parts
Exposure Listing to Buyer that supports deliveries beyond 90 days.
Said lists shall be updated, reviewed and signed by Buyer and Seller
every three months.
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D. Buyer authorizes Seller to purchase such Long Lead Items and Lot
Size Parts to support Buyer's forecast and Buyer shall assume
liability for such material until such material is used on a
released order.
PURCHASE COMMITMENT
Buyer shall not be committed to purchase any annual quantity or dollar
volume, nor any estimated or anticipated usage quantities or dollar
volume, regardless of any expressed or implied verbal or written
statements that may be communicated to Seller either before issuance of
this agreement or during the term of this agreement. In the event
Buyer's actual volume of business declines substantially from the
estimated annual quantities on the Approved Price List and this results
in the Seller's supplier(s) invoking a bill-back provision for
purchased parts that are unique to those Products supported by Buyer's
annual blanket orders, Seller may submit supported justification and
request Buyer's acceptance of the cost differential. If buyer
determines Seller has not imposed a commitment beyond Buyer's
commitments, as it pertains to the unique purchase parts supporting
Buyer's annual blanket orders, Buyer will agree to reimburse Seller for
bill-backed cost differential with no burden, mark-up or profit adders
from Seller.
ORDER CANCELATION
Buyer may cancel any order scheduled for delivery more than thirty (30)
days from the date such cancellation notice is given to Seller. Upon
cancellation, Buyer is liable to Seller for all material within the
greater of the ninety (90) day period or the long lead time and lot
size parts exposure list for the material. In addition, Seller will
make every effort to cancel its orders or return materials for credit
without penalty and pass on any recovered cost to Buyer. Buyer will
only be responsible for any restocking fees that Seller fully justifies
its failure to negotiate out of returned materials to its suppliers,
with no mark-up in costs to Seller.
PRICE LIST
The parties will agree to an Approved Price List which will pertain to
the Products sold under this Agreement, which Price List shall be
reviewed on a quarterly basis and be subject to changes to reflect
price changes required under the section titled "Engineering Change
Order, Process Change Notice and Deviation Changes" above or changes in
any statement of work agreed to by the parties. Other than design
changes, the prices shall be firm-fixed for a period of one (1) year.
Buyer and Seller agree to review and resolve any material cost impacts
resulting from extreme changes in the Seller's corresponding suppliers'
commodity markets. Any proposed price increase, with full
justification, must satisfy the following parameters as a minimum in
order to be considered for approval by Buyer:
A. Any increase in the incremental costs of the end product sold to
Buyer shall be prorated to the overall material costs making up the
approved Product pricing in the Price List; and
B. Seller shall demonstrate it has used its best efforts to mitigate
such material cost increases, and has provided Buyer with supporting
financial analysis, prepared in accordance with generally accepted
accounting principles.
PREMIUM DELIVERY PERFORMANCE AND CHARGES
Seller agrees to provide premium delivery on selected end product
requirements specifically requested by Buyer, pending availability of
parts and materials needed to meet the expedited delivery date(s).
Based on Seller's supported justification, Buyer agrees to reimburse
Seller for reasonable premium delivery charges for the specific
quantities of purchased parts and materials required to meet the
expedited delivery date requested.
PAYMENT TERMS
Payment terms shall be Net 30 Days from date of receipt of Product on
Buyer's dock.
COST REDUCTIONS
During the Term hereof the parties will explore measures to reduce
costs. The target goal for such reductions is five percent (5%) per
year. Cost benefits which result from the efforts of both Buyer and
Seller or Seller only will be shared, based on a ratio of forty percent
(40%) to Seller and sixty percent (60%) to Buyer. All of the cost
benefits resulting from the sole efforts of Buyer will be passed on to
Buyer.
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PRICING MODEL
The following Pricing Model shall be utilized as a basis in identifying
and calculating Seller's general overall pricing structure on existing,
changed and new product to be delivered to Buyer, and reflected the
Approved Price List. Upon buyers request, Seller will provide Buyer
with actual Gross Margin calculation utilized in the Approved Price
List. Buyer or Seller may request review of the Pricing Model on a
minimum of twelve (12) month basis.
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ANNUAL GROSS
PURCHASE VOLUME MARGIN
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SEMI-ANNUAL COST REVIEWS
It is agreed that Buyer and Seller shall schedule a standing
Semi-Annual Cost Review Meetings in May and October each year. Seller
shall make available, at Buyer's reasonable request, to Buyer any and
all procurement documents and/or agreements with its suppliers for
review of pricing and negotiated cost reduction efforts. Seller shall
also make available to Buyer any and all labor charge and other
documentation supporting increments of the unit prices and supporting
ancillary charges in the Approved Price List, including any
documentation needed to support any request for Increase in said Price
List.
CONTINUOUS PROCESS IMPROVEMENT (CPI) PROGRAM
Buyer and Seller agree to develop a CPI Program with specific efforts
directed toward process improvements in the following areas:
A. BUYER'S PRODUCT REQUIREMENTS AND CHANGES
Buyers specifications, documentation and communication of
requirements and changes.
B. QUALITY
Including but not limited to purchased parts and materials quality,
Work-In-Process (WIP) workmanship quality and test quality.
C. CYCLE TIME
Including but not limited to overall quoted delivery cycle time and
to incremental cycle time of procurement, WIP, test activities.
D. ON-TIME DELIVERY
Including elements of the turnkey process that impact on-time
deliveries, such as procurement cycle time, schedule loading,
process flow, inspection and program management.
The CPI Program and Buyer's and Seller's planned and resulting efforts
will be a standing agenda item for presentation and discussion at every
Program Management Meeting.
PROGRAM MANAGEMENT REViEW MEETINGS
Buyer and Seller agree to meet quarterly to review performance under
this Agreement and to discuss any significant issues which may arise
during the Term hereof. In addition, Buyer and Seller shall discuss
topics relative to the development of CPI as indicated above.
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JIT KANBAN DELIVERY PROGRAM
Buyer and Seller agree to develop a completed method of JIT KANBAN
Deliveries by Seller to meet Buyer's production demand, with individual
part and assembled product inventory configured within Seller's
operation and both Buyer's and Seller's employees trained, to ensure
implementation of the program within twelve (12) calendar months from
the Effective Date of this Agreement.
PRODUCT TESTING
In addition to Seller's own Company requirements for its end product
testing prior to shipment, all Products to be shipped to Buyer must be
tested and comply fully with Buyer's Test Specification for Cable
Assemblies, Adept 01000-000. Buyer agrees to provide any revisions to
the Test Specification in a timely manner as they are singed off and
released.
PACKAGING AND MARKING
Buyer and Seller agree to formalize a method of defining packaging and
marking requirements covering all Product types and sizes within ninety
(90) days from the date of execution of this Agreement. The final
agreed packaging and marking Specification shall be in the form of the
Buyer's ECO controlled document(s).
SHIPPING RESPONSIBILITIES
All shipments shall be F.O.B. destination (Buyer's receiving dock).
Risk of loss or damage shall remain with Seller during transit. Seller
shall be responsible for any damage or loss relating to packing and
packaging by Seller or it's designated supplier. Seller shall prepay
all freight charges relating to shipment of goods to Buyer. Any and all
insurance shall be the responsibility and account of Seller. Any
premium freight charges incurred to mitigate Seller's delinquent
performance shall be the responsibility and charge to the Seller. Any
premium freight charges incurred by Seller at the specific written
request of the Buyer for expedited delivery in advance of the
contractual delivery schedule, may be invoiced as chargeable to the
Buyer. The freight carrier for said premium delivery shall be specified
by Buyer. Buyer requires all shipments to be made on the scheduled
shipment day or up to two days before the scheduled shipment day.
Seller agrees to make its best efforts to ensure that every shipment
occurs on time.
EARLY / LATE DELIVERlES
Unless mutually agreed in writing Seller shall schedule all shipments
of Product to ensure receipt at Buyer's dock no more than five working
days prior to the mutually agreed upon purchase order due date with no
allowance for any delivery beyond the purchase order due date.
Deliveries outside the allowed delivery window may be returned by Buyer
at the Seller's expense and any invoiced charges will be debited
against Buyer's purchase order.
OVERSHIPMENTS
Unless otherwise mutually agreed in writing all overshipments of
Product shall be considered unauthorized and may be returned at no cost
to Buyer.
QUALITY ASSURANCE PROGRAM
The Seller shall have a documented quality assurance program adequate
to ensure compliance with all specifications and requirements stated in
documents (contracts, DWG's etc.) The Seller's Quality Assurance
Program shall be subject to periodic audit and review by Buyer's
quality organization. The Seller has sole responsibility for the
quality and reliability of the Product produced;. approval by Adept, of
the Seller's Quality Assurance Program does not relieve the Seller of
this responsibility.
PROCESS CONTROL
The Seller shall maintain adequate controls to assure that special
processes i.e., manufacturing workmanship, manufacturing test, cable
crimps, solder process are all performed consistently in accordance
with requirements specified for those special processes. These controls
shall be supported by the use of control charts, logs or other data
collection methods which shall be made available to Adept upon request.
WORKMANSHIP
All work performed by Seller for Products for Buyer shall be
manufactured in accordance with Seller's Workmanship Standards, Number
93840100.
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CONTROL OF PURCHASES
The Seller shall maintain a system to ensure that raw materials
procured by the Seller for use in Buyer products shall conform to Buyer
product specification and drawing requirements.
RECEIVING INSPECTION
The Seller shall maintain a system for the verification of incoming
materials adequate to ensure the quality and correctness of products
shipped to Seller.
IN-PROCESS INSPECTION
The Seller shall perform in-process inspection as required in the
manufacturing/test process adequate to assure early detection of
processes producing defective material. Records of in-process
inspections or tests performed on Adept products shall be maintained by
the Seller and made available to Adept upon request.
FINAL ACCEPTANCE TEST
The Seller shall perform final acceptance tests to assure compliance
with the product specifications on each item shipped to Adept. This
test shall apply to all products and be in conformance with Adept test
specification for cables 01000-00000. This test shall be performed as
the last step prior to shipping. ALL KEYING, LOCKING or OTHER devices
specific to the product BOM shall be present and complete per drawing
and BOM specifications prior to the test. Keying devices shall NOT be
defeated during test.
Each cable tested and accepted shall show evidence of acceptance by
Seller through test stamps or other approved methods. Test stamps
should reference Seller and should be in indelible ink.
Results of all tests including failures, repair and retest information
are to be recorded and available to Buyer upon request.
DATA REPORTING AND RECORDS
The Seller shall maintain records of all tests performed on products
shipped. Data reporting including failure and repair information shall
be furnished to Adept upon request. Information elements required are
as follows:
A. Product build, workmanship and acceptance data check sheets.
B. Summary test data reporting the results of all units undergoing
test. Including in the summary data will be failure and repair data
and implementation of corrective action as deemed required by the
Seller.
FIRST ARTICLE DATA
The Seller is responsible for performing a complete first article
inspection on all new part number purchase orders. This first article
inspection shall be documented and certified as complete by a
responsible Seller employee. A copy of the first article inspection
report is to be submitted with the new cable or lot of cables for
acceptance by Buyer. First article inspection data includes but is not
limited the following:
A. BOM check list items of all bill of material line items.
B. Evidence of Drawing requirements, features, notes, finish etc.
C. Evidence of all electrical tests required.
D. Material certifications applicable to Agency requirements (To be
retained in file by Seller and available for review upon buyer's
request).
CORRECTIVE ACTION
The Seller shall maintain a system for identifying defects in processes
and products and for tracking the action required eliminating the
cause. The Seller shall also provide effective response (within 5
working days of return of Product or viewing by Seller, as applicable)
to corrective action requests that are initiated by Buyer.
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WARRANTY
Seller warrants that the Products will conform in all material respects
to mutually agreed specifications for a period of eighteen (18) months
from receipt by Buyer (the "Warranty Period"). If Buyer, during the
Warranty Period, notifies Seller in writing of a warranty claim, then
upon receipt of such notice, Seller may examine the Products at Buyer's
facility or require Buyer, at Seller's expense, to ship the Products to
Seller per Seller's Return Materials Authorization (RMA) Procedures. If
a Product is found to be non- conforming per the terms herein, Buyer
will notify Seller. Seller shall provide an RMA number within two (2)
working days of written request by Buyer. Seller shall use due
diligence to perform any analysis or examination of the Products in
question in a timely manner. Seller shall not withhold or otherwise
delay providing to Buyer an RMA number for return of the Product for
repair or replacement. Seller shall have no obligation under this
section, if Seller determines reasonably that the Products were not
defective or missing at the time of shipment by Seller or, if the
Products were damaged or misused by Buyer or modified, repaired, or
altered, except as authorized by Seller or subject to accident or
improper installation by Buyer. The liability of Seller under this
warranty is limited to repairing or replacing non-conforming products
at no charge to Buyer, not to exceed the purchase price of the
non-conforming products. Seller shall deliver repaired or replaced
Product within fifteen (15) working days of receipt of the Product
returned by Buyer.
REPAIR OF PRODUCT AFTER WARRANTY PERIOD
lf a non-conformity arises after the expiration of the Warranty Period,
and Buyer notifies Seller in writing of such non-conformity, Seller and
Buyer will cooperate with each other to diagnose the non-conformity.
Seller shall provide an RMA number within two (2) working days of
written request by Buyer. Once such diagnosis is complete, Seller will
provide Buyer with a written quotation for repair of the Product and
Buyer, at its option, may then issue its purchase order to Seller to
effect such repair. Seller shall deliver out of warranty repaired
Product within thirty (30) working days of receipt of the Product and
purchase order from Buyer.
NO TROUBLE FOUND
If during the Warranty Period, Buyer identifies a non-conformity in a
Product but the cause cannot be reasonably determined, Buyer and Seller
will cooperate with each other to diagnose the cause within a
reasonable time and cost ceiling, mutually agreed prior to incurring
any respective labor and material costs. If the final cause is
determined to be covered by the Section titled "Warranty", Seller shall
repair or replace such non-conforming product per the provisions of the
"Warranty" Section and also bear the costs of the diagnosis.
Alternatively, if the final cost is determined to be outside of the
provisions of Warranty section, Buyer shall bear the costs of repair or
replacement and the costs of the diagnosis.
UNAUTHORIZED CHANGES
Any intended changes by the Seller to the delivery, specifications,
price, quantity or other contractual terms and conditions on an open
purchase order / subcontract shall be communicated in writing by the
Seller in advance to such actions. Seller shall not implement any such
changes until confirmation or acknowledgment is received from the
Buyer.
ASSIGNMENT
Neither party hereto shall assign this Agreement except to a successor
of substantially all of such party's business and assets, without first
obtaining the prior written consent of the other party. A party
assigning this Agreement to a successor shall provide prior written
notice of such assignment to the other party.
FORCE MAJEURE
Except for Buyer's payment obligations neither party hereto shall be
liable for delays in performance hereunder if such delay is the result
of causes beyond its reasonable control.
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INDEMNIFICATION AND LIMITATION OF LIABILITY
In no event, whether as a result of breach of contract, warranty, or
tort (including negligence), strict liability, product liability, or
otherwise, shall either party be liable to the other for any special,
indirect, incidental, consequential or exemplary damages of any kind
whether or not such party was advised of the possibility of such
damage. These limitations shall apply notwithstanding any failure of
essential purpose of any limited remedy. Buyer assumes responsibility
for the use and resale of the Products, and agrees to indemnify and
hold Seller harmless from loss of any kind, resulting from such use or
resale. Each party hereto agrees to indemnify and hold the other party
harmless from claims made against it by its own shareholders,
employees, suppliers, customers or the U. S. Government. The provisions
of this Section shall survive the termination of this Agreement.
INFRINGEMENT
As all Products are based on Buyer's specifications, Seller shall have
no liability for any infringement claim which arises from Buyer's
specifications. Buyer shall indemnify and hold Seller harmless from all
costs, fees and expenses incurred by Seller with respect to any such
claim.
TERMINATION
This Agreement may be terminated for convenience or for cause by either
party in accordance with the following:
A. Either party may terminate this Agreement for cause if the other
party breaches a material provision hereof and the defaulting party
fails to cure such breach within thirty (30) days after receiving
written notice thereof.
B. Either party may terminate this Agreement if the other party enters
into or files a petition, arrangement or proceeding seeking an order
for relief under the bankruptcy laws of the United States, or has a
receiver appointed for it or the other party enters into an
arrangement for the benefit of its creditors; or becomes insolvent.
C. Either party may terminate this Agreement for convenience, without
reason given, upon one hundred eighty (180) days written and
confirmed notice to the other party. During the one hundred eighty
(180) day period, all terms and conditions of this Agreement shall
remain in full force and effect. Such termination for convenience
will not affect obligations which arose prior to such termination.
GOVERNING LAW AND ARBITRATION
This Agreement shall be governed by and construed in accordance with
the laws of the State of California. Any general disputes or disputed
termination-for-cause actions will be adjudicated under the laws of the
State of California. Buyer and Seller agree to resolve any disputes
arising out of this Agreement by means of arbitration. Buyer and Seller
shall mutually agree on a specific independent arbitrator, with the
final decision of the independent arbitrator binding of both parties in
cost and action. The cost of any arbitration shall be shared equally by
the parties, except each party shall bear the cost of preparing and
presenting its own case.
GENERAL
The provisions of this Agreement shall take precedence over any
different or conflicting terms of any purchase order or acknowledgment
issued hereunder. This Agreement represents the complete understanding
between the parties hereof. No waiver by either party of the breach of
any provision hereof shall be deemed to be a waiver of any different or
subsequent breach. All notices shall be given in writing and addressed
to the individuals named below.
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ADEPT TECHNOLOGY / EMS AGREEMEN
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Signed and Executed on the dates set forth below:
Adept Technology, Inc. (Buyer) Electronic Manufacturing Systems, Inc. (Seller)
/s/ James E. Kuhl /s/ Steven R. Hewson
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Authorized Representative Authorized Representative
James E. Kuhl Steven R. Hewson
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Typed Name Typed Name
V.P. Operations Vice President--Site Manager
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Title Title
8-28-97 8-26-97
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Date Date
Adept Technology
Provisional
Approval
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/s/ John D. Wooldridge
John D. Wooldridge
Purchasing Manager
8-26-97