10.62
SUPPLY, MARKETING AND CONSULTING SERVICES AGREEMENT
This Joint Marketing and Supply Agreement (the "Agreement") is made and entered
into as of January 9, 1998, by and between Arnold Circuits, Inc., a California
corporation with principal offices located at 310 E. Fourth Avenue, La Habra,
California 90631 ("Arnold"), and XCEL Etch-Tek with principal offices located at
2455 Bates Avenue, Concord, California 94520 ("Etch-Tek"), a division of XIT
Corporation, a New Jersey corporation.
RECITALS
WHEREAS, Arnold and Etch-Tek are both a manufacturers of printed circuit boards
and suppliers of related products and services and;
WHEREAS, Arnold and Etch-Tek desire to purchase from each other certain product
or services supplied by the other and;
WHEREAS, Arnold and Etch-Tek desire to exchange information in order to procure
certain potential sales opportunities and;
WHEREAS, Etch-Tek desires to avail itself of the technical and business
expertise of Robert J. Bertrand who desires to provide Etch-Tek with such
expertise;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements set forth herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows.
1. PRODUCT AND SERVICE PURCHASES. The parties hereto recognize that, from time
to time, each may encounter a situation in which they would purchase
manufactured products or materials, completed products or related products or
services (collectively the "Products") from a third party which Products are
also available from the other party hereto. In such situations, the parties
hereto agree to offer the other the opportunity to sell such Products to the
purchasing party before attempting to purchase such Products from any third
party. If the selling party is able to provide the desired Product to the
purchasing party at a price equivalent to that available from a third party, the
purchasing party shall purchase the Product from the selling party. All
standard terms of sale of the selling party shall apply to such transactions.
By way of example only and without limitation, if Arnold required multiple
laminated materials which are manufactured by Etch-Tek and if the price of such
Product from Etch-Tek is equivalent to that of a third party from whom Arnold
would other purchase such Product, then Arnold shall purchase such Product from
Etch-Tek on Etch-Tek's standard terms and conditions.
2. EXCHANGE OF MARKETING INFORMATION. The parties hereto recognize that, from
time to time, each may encounter a potential sales opportunity from a customer
or potential customer for a product which it does not manufacture but which is
manufactured or distributed by the other party hereto. In such situations, each
party hereto agrees to provide the other with
all reasonably relevant information regarding such potential order, including
without limitation the customer name, address, telephone number, contact name
and description of the product. The parties hereto agree that the intent of
this Section 2 is to provide the each other with potential sales leads which
cannot be developed by the party providing the information. Sales leads
provided are to be developed by the recipient at the recipient's sole cost and
the parties hereto agree that no commission or other compensation shall be
payable to the party providing such potential sales leads information unless a
specific arrangement or agreement for a specific referral is established in
writing by the parties. The parties hereto further agree that each may
reference this relationship as an "affiliation" to any customer or potential
customer in order to enhance the likelihood of generating sale to such customer
or potential customer.
3. TECHNICAL ADVISOR. Arnold shall make available the services of Robert
Bertrand as a technical and business advisor to the general manager of Etch-Tek
during the term this Agreement remains in effect. Mr. Bertrand shall receive no
direct compensation from Etch-Tek but shall be reimbursed by Etch-Tek for any
reasonable travel or related expenses incurred as a direct result of specific
requests for such advisory services.
4. TERM. This Agreement shall become effective on the date first written above
and shall remain in full force and effect for three (3) years. Thereafter, this
Agreement shall automatically renew for one (1) year until one of the parties
hereto delivers to the other written notice of termination of this Agreement at
least sixty (60) days in advance of the renewal date. The parties hereto agree
this Agreement may only be terminated by the delivery of such notice or based
upon the provisions of Section 4 hereof.
5. TERMINATION. It is agreed that in case of a material breach (violation) by
either party of any of the provisions contained in this Agreement, the other
party shall have the right to terminate this Agreement at its option.
Furthermore, if either party becomes insolvent, makes a general assignment for
the benefit of creditors, has a petition or any proceeding under the bankruptcy
laws filed by or against it or under any other law relating to debtor's relief,
or if a receiver is appointed to take control of the business of either party,
the other party may, at its option, immediately cancel this Agreement. Notice
of cancellation shall be in writing.
6. CONFIDENTIALITY. Both parties hereto acknowledge that during the term of
this Agreement, each may obtain confidential information regarding the other
party's business. Both parties agree to treat all such information and the
terms of this Agreement as confidential and to take all reasonable precautions
against disclosure of such information to unauthorized third parties during and
after the term of this Agreement. Upon request by an owner thereof, all
documents relating to confidential information in the possession of the other
party will be returned to such owner.
7. ASSIGNMENT. Neither party to this Agreement may assign any of its rights or
delegate any of its duties under this Agreement. Any attempted or purported
assignment or delegation in violation of this provision shall be voidable at the
option of the nonassigning and/or nondelegating party and shall entitle that
party to terminate this Agreement.
8. ARBITRATION. Any controversies or disputes arising out of or relating to
this Agreement shall be resolved by binding arbitration in accordance with the
then current Commercial Arbitration Rules of the American Arbitration
Association, except that no discovery shall be permitted. The parties shall
endeavor to select one (1) mutually acceptable arbitrator knowledgeable about
issues relating to the subject matter of this Agreement. In the event the
parties are unable to agree to such a selection, each party will select an
arbitrator and the arbitrators in turn shall select a third arbitrator who shall
be arbitrator designated to resolve the dispute. The arbitration shall take
place at a location that is reasonably centrally located between the parties, or
otherwise mutually agreed upon by the parties.
The arbitrator shall not have the authority, power, or right to alter, change,
amend, modify, add, or subtract from any provision of this Agreement or to award
punitive damages. The arbitrator shall have the power to issue mandatory orders
and restraining orders in connection with the arbitration. The award rendered
by the arbitrator shall be final and binding on the parties, and judgment may be
entered thereon in any court having jurisdiction. The agreement to arbitration
shall be specifically enforceable under the prevailing arbitration law. During
the continuance of any arbitration proceeding, the party shall continue to
perform their respective obligations under this Agreement. The prevailing party
shall have its reasonable attorney's fees paid by the non-prevailing party which
payment shall be made immediately following the arbitrator's final award.
9. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other agreement
whether oral or written. This Agreement supersedes any prior written or oral
agreements between the parties.
10. AMENDMENT. This Agreement may be modified or amended if the amendment is
made in writing and is signed by both parties.
11. NOTICE. Any notice, request, demand, waiver, consent, approval or other
communication which is required or permitted hereunder shall be in writing and
shall be deemed given only if delivered personally or sent by registered or
certified mail, postage prepaid, as follows:
If to Arnold, to:
Arnold Circuits, Inc.
Attn: President
310 E. Fourth Avenue
La Habra, California 90631
If to Etch-Tek, to: With a required copy to:
Xcel Etch-Tek MicroTel International, Inc.
Attn: General Manager 4290 East Brickell Street
2455 Bates Avenue Ontario, California 91761-1551
Concord, California 94520 Attn: Carmine T. Oliva
12. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall continue
to be valid and enforceable. If a court finds that any provision of this
Agreement is invalid or unenforceable, but that by limiting such provision it
would become valid and enforceable, then such provision shall be deemed to be
written, construed, and enforced as so limited.
13. WAIVER OF AGREEMENTUAL RIGHT. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver or limitation of
that party's right to subsequently enforce and compel strict compliance with
every provision of this Agreement.
14. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be governed
and construed in accordance with the laws of the State of California without
regard to principles of conflicts of law. Each party hereby irrevocably submits
to the jurisdiction of an California state court or federal court in the State
of California in respect of any suit, action or proceeding arising out of or
relating to this Agreement and irrevocably accept for themselves and in respect
of their property, generally and unconditionally, the jurisdiction of the
aforesaid courts.
The parties hereto have executed this Agreement at Ontario, California, on the
day and year above written.
ARNOLD CIRCUITS, INC.
By: /s/Robert Bertrand
-------------------------
Its: President and CEO
-------------------------
XCEL ETCH-TEK
By: /s/ Carmine T. Oliva
-------------------------
Its: President and CEO
-------------------------