EXHIBIT 10.16
BOEING
PURCHASE AGREEMENT
9423JC4548
between
BOEING DEFENSE & SPACE-IRVING CO.
3131 STORY ROAD WEST
IRVING, TEXAS 75038
and
CORY COMPONENTS
2201 ROSECRANS AVENUE
EL SEGUNDO, CA 90245
Period of Performance
January 1, 1995 through December 31, 1999
AGREEMENT #9423JC4548
TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.0 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Products. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Material Representative . . . . . . . . . . . . . . . . . . . 1
1.3 F.O.B . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Specification . . . . . . . . . . . . . . . . . . . . . . . . 2
2.0 ISSUANCE OF ORDERS AND APPLICABLE TERMS. . . . . . . . . . . . . . 2
2.1 Issuance of Orders. . . . . . . . . . . . . . . . . . . . . . 2
2.2 Supplier Scheduling . . . . . . . . . . . . . . . . . . . . . 2
2.3 Acceptance of Orders. . . . . . . . . . . . . . . . . . . . . 2
2.4 Rejection of Orders . . . . . . . . . . . . . . . . . . . . . 3
2.5 Written Authorization to Proceed. . . . . . . . . . . . . . . 3
3.0 TITLE AND RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . 3
4.0 PRICING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.0 NON-RECURRING COSTS. . . . . . . . . . . . . . . . . . . . . . . . 4
6.0 LEADTIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7.0 DELIVERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7.1 Requirements . . . . . . . . . . . . . . . . . . . . . . . . 5
7.2 Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7.3 Expedited Delivery . . . . . . . . . . . . . . . . . . . . . 5
8.0 ON-SITE REVIEW AND RESIDENT REPRESENTATIVES. . . . . . . . . . . . 5
8.1 Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
8.2 Resident Representatives. . . . . . . . . . . . . . . . . . . 6
9.0 PRODUCT CONFORMANCE. . . . . . . . . . . . . . . . . . . . . . . . 6
10.0 QUALITY CONTROL, INSPECTION, REJECTION, AND ACCEPTANCE . . . . . . 6
10.1 Controlling Document. . . . . . . . . . . . . . . . . . . . . 6
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10.2 Inspection and Rejection. . . . . . . . . . . . . . . . . . . 6
10.3 SELLER's Notice of Discrepancies. . . . . . . . . . . . . . . 7
10.4 Right of Entry. . . . . . . . . . . . . . . . . . . . . . . . 7
10.5 Certification . . . . . . . . . . . . . . . . . . . . . . . . 8
10.6 Retention of Records. . . . . . . . . . . . . . . . . . . . . 8
10.7 Source Inspection . . . . . . . . . . . . . . . . . . . . . . 8
11.0 PATENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12.0 EXAMINATION OF RECORDS . . . . . . . . . . . . . . . . . . . . . . 9
13.0 CHANGES TO SPECIFICATIONS. . . . . . . . . . . . . . . . . . . . . 9
14.0 CHANGES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
15.0 INVOICE AND PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . 10
16.0 PACKAGING AND SHIPPING . . . . . . . . . . . . . . . . . . . . . . 10
17.0 WARRANTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18.0 TERMINATION FOR DEFAULT. . . . . . . . . . . . . . . . . . . . . . 11
19.0 TERMINATION FOR CONVENIENCE. . . . . . . . . . . . . . . . . . . . 11
20.0 FORCE MAJEURE. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
21.0 RESPONSIBILITY FOR PROPERTY. . . . . . . . . . . . . . . . . . . . 12
22.0 TECHNOLOGICAL DEVELOPMENTS . . . . . . . . . . . . . . . . . . . . 12
22.1 Proprietary Information . . . . . . . . . . . . . . . . . . . 13
23.0 COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. . . . . . . . . . . 13
23.1 Clean Air Act . . . . . . . . . . . . . . . . . . . . . . . . 13
24.0 BUYER'S RIGHTS IN SELLER'S DATA, PATENTS AND TOOLING . . . . . . . 14
25.0 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
25.1 Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . 14
25.2 Effective Date. . . . . . . . . . . . . . . . . . . . . . . . 15
26.0 PUBLICITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
27.0 FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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28.0 RELIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
29.0 ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
30.0 SUBCONTRACTING . . . . . . . . . . . . . . . . . . . . . . . . . . 16
31.0 NOTICE OF LABOR DISPUTES . . . . . . . . . . . . . . . . . . . . . 16
32.0 NON-WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
33.0 HEADING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
34.0 PARTIAL INVALIDITY . . . . . . . . . . . . . . . . . . . . . . . . 16
35.0 APPLICABLE LAW; JURISDICTION . . . . . . . . . . . . . . . . . . . 16
36.0 TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
36.1 Exclusion of Taxes in Price . . . . . . . . . . . . . . . . . 16
36.2 Tax Claims. . . . . . . . . . . . . . . . . . . . . . . . . . 17
37.0 ENTIRE AGREEMENT; ORDER OF PRECEDENCE. . . . . . . . . . . . . . . 17
ATTACHMENT "A" Specifications and Pricing. . . . . . . . . . . . . . . 19
ATTACHMENT "B" Leadtime. . . . . . . . . . . . . . . . . . . . . . . . 20
ATTACHMENT "C" Supplier Scheduling Program . . . . . . . . . . . . . . 21
ATTACHMENT "D" Supplier Scheduling Report. . . . . . . . . . . . . . . 23
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AGREEMENT NO. 9423JC4548
This Agreement is made this date, February 8, 1995, by and between BOEING
DEFENSE & SPACE - IRVING CO., of 3131 Story Road West, Irving, TX 75038, herein
known as "BUYER", and CORY COMPONENTS, of 2201 Rosecrans Ave., El Segundo, CA
90245, herein known as "SELLER".
This Agreement shall be in effect from January 1, 1995 through December 31, 1999
and for the delivery schedules through June 30, 2000 with option to extend. The
terms of this Agreement may also be extended to compensate for an amount of time
equal to the time the contract is on hold due to quality problems, should any be
encountered.
RECITALS
A. BUYER is currently supporting production of commercial aircraft.
B. SELLER manufactures and sells certain goods and services for use in
the production and support of commercial aircraft.
C. SELLER desires to sell and BUYER desires to purchase certain of
Seller's goods and services for the production and support of
commercial aircraft.
D. SELLER and BUYER desire to enter into an agreement for the sale by
Seller and purchase by BUYER of Products as defined herein.
Now, therefore, in consideration of the mutual covenants set forth
herein, the parties agree as follows:
AGREEMENTS
1.0 DEFINITIONS
1.1 "PRODUCTS" shall mean (a) all goods purchased and described on any
Order and (b) services purchased and described on any Order or
attachments to this Agreement.
1.2 "MATERIAL REPRESENTATIVE" shall mean the employee and his/her
management designated as such by BUYER from time to time, or in the
absence of such designation, BUYER's employee and his/her management
primarily responsible for dealing with SELLER in connection with
administration of the applicable Order.
1.3 "F.O.B." shall mean "Free on Board".
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1.4 "ORDER": Each purchase order accepted by SELLER is a contract between
BUYER and SELLER and shall be referred to herein as an "Order". (See
Article 2.2, "Supplier Scheduling").
1.5 "SPECIFICATION": Specifications shall be defined to mean the
document(s) which are referenced and/or attached hereto, and also
include those incorporated as Attachment "A".
2.0 ISSUANCE OF ORDERS AND APPLICABLE TERMS
2.1 ISSUANCE OF ORDERS
BUYER shall issue Orders to SELLER from time to time. Each Order
shall contain a description of the Products ordered, a reference to
the applicable specifications and drawings, the quantities, the
prices, the delivery schedule, the terms and place of delivery, any
special conditions and the following note:
"This Order is placed in accordance with Agreement No. 9423JC4548
between Boeing Defense & Space - Irving Co. and Cory Components.
Period of performance January 1, 1995 through December 31, 1999 with
deliveries through June 30, 2000."
2.2 SUPPLIER SCHEDULING
In the future, this contract may be modified by mutual agreement to
include Supplier Scheduling disciplines and techniques which may
alter leadtimes, Order releases and reschedule policies.
For Supplier Scheduling disciplines and techniques, this Agreement
shall be modified for Orders released by BUYER as agreed to in
Attachments "C" and "D". Leadtimes, minimum production releases and
order policies may be altered as mutually agreed between BUYER and
SELLER.
2.3 ACCEPTANCE OF ORDERS
Each Order is BUYER's offer to SELLER and acceptance is strictly
limited to its terms. BUYER WILL NOT BE BOUND BY AND SPECIFICALLY
OBJECTS TO ANY TERM OR CONDITION WHICH IS DIFFERENT FROM OR IN
ADDITION TO THE PROVISIONS OF THE ORDER, WHETHER OR NOT SUCH TERM OR
CONDITION WILL MATERIALLY ALTER THE ORDER. SELLER's commencement of
performance or acceptance of the Order in any manner shall
conclusively evidence SELLER's acceptance of the Order as written.
BUYER may revoke, at no charge, any Order/release prior to receipt of
SELLER's written acceptance or SELLER's commencement of performance.
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2.4 REJECTION OF ORDERS
Any rejection by SELLER of an Order shall specify the reasons for
rejection and any changes or additions that would make the Order
acceptable to SELLER; provided, however, that SELLER may not reject
any Order for reasons inconsistent with the provisions of this
Agreement.
2.5 WRITTEN AUTHORIZATION TO PROCEED
BUYER may give written authorization to SELLER to commence
performance before BUYER issues an Order. If BUYER in its written
authorization specifies that an Order will be issued, BUYER and
SELLER shall proceed as if an Order had been issued. This Agreement
and the terms stated in such written authorization shall be deemed to
be a part of BUYER's offer, and the parties shall promptly agree on
any open Order terms. If BUYER does not specify in its written
authorization that an Order shall be issued, BUYER's obligation is
strictly limited to the terms of the written authorization.
If SELLER commences performance (a) before an Order is issued or (b)
without receiving BUYER's prior written authorization to proceed,
such performance shall be at SELLER's expense.
3.0 TITLE AND RISK OF LOSS
Title to and risk of any loss of or damage to the Products shall pass
from SELLER to BUYER at F.O.B. point El Segundo, CA, except for loss
or damage thereto resulting from SELLER's fault or negligence.
Passage of title on delivery does not constitute BUYER's acceptance
of Products.
4.0 PRICING
Pricing for all product(s) purchased under this Agreement shall not
exceed the prices shown in Attachment "A", and shall remain firm
through December 31, 1999 and for deliveries through June 30, 2000,
unless altered by specification changes outlined in Article 13.0,
"CHANGES TO SPECIFICATIONS". Pricing shall be available to all BOEING
locations and subsidiaries should they elect to participate under the
terms of this Agreement.
If during the term of this Agreement, SELLER, in its sales to other
customers, reduces prices or leadtimes of like quantities of
comparable items, below those stated herein, the lowest prices and
reduced leadtimes will be made available to the BUYER and prevail
under this Agreement. SELLER shall promptly, in writing, notify BUYER
of such reductions as they become known and/or effective.
If, during the term of this Agreement, a qualified Supplier offers
BUYER a qualified product which is comparable to a product herein, at
a price which is more than five percent (5%) lower than the price
specified herein, then SELLER shall be offered the
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opportunity to continue providing the product, or comparable product
acceptable to BUYER, under this Agreement at such lower price.
If SELLER is unwilling to meet competition as specified above, then
the product affected may, at BUYER's option, be deleted from this
Agreement and BUYER shall have no further obligations to such product
under this Agreement. Such deletion shall have no effect upon BUYER's
obligation to accept delivery of product already released by BUYER
prior to such deletion. The Agreement, as modified, shall remain in
full force and effect with respect to the remaining products.
All purchases of units shall be made only upon BUYER's standard
Order(s) then in use at its various buying locations. (Reference
Article 2.2 "Supplier Scheduling"). All such Orders shall be
accumulated in calculating quantities. Orders shall specify BUYER's
part numbers, quantities, due dates, and agreement numbers. ESTIMATES
AND REQUIREMENTS USED IN ANY DOCUMENT RELATING TO THIS AGREEMENT ARE
INFORMATIONAL ONLY AND REPRESENT NO COMMITMENT BY BUYER UNTIL A
SPECIFIC ORDER IS RELEASED. BUYER DOES NOT COMMIT TO PURCHASE ALL OR
ANY SPECIFIC PORTION OF ITS TOTAL NEEDS, ESTIMATES, OR REQUIREMENTS
FROM SELLER.
BUYER shall in no event or under any circumstances whatsoever be
liable for raw material, work in process, components, or any other
expenses or damages except as expressly agreed to herein.
BUYER's maximum liability shall not at any time exceed the number of
furnished units for which Orders have been released, times the
furnished unit price specified herein.
Items furnished by SELLER, but not listed on Attachment "A" may be
negotiated and added to this Agreement by written addendum.
5.0 NON-RECURRING COSTS
A. Non-recurring charges, if any, incurred by BUYER in
conjunction with this Agreement shall be an all inclusive,
one-time charge, shown, upon occurrence, in Attachment "A",
to produce the corresponding product(s) listed in Attachment
"A". Such charges shall be itemized and invoiced separately
from product costs.
B. All tooling, jigs, fixtures, drawings, etc. shall become the
property of BUYER at time of payment of the Order invoice for
same, and shall be maintained in an industry acceptable
manner and covered for replacement value by the SELLER while
in SELLER's possession. In the event of termination of this
Agreement BUYER shall provide disposition of such property
to SELLER.
6.0 LEADTIME
SELLER shall maintain "not to exceed" leadtimes as stated in
Attachment "B". BUYER, at its option, may specify longer time
intervals.
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7.0 DELIVERY
7.1 REQUIREMENTS
Deliveries shall be strictly in accordance with the quantities, the
schedule and other requirements specified in the applicable Order.
SELLER may not make early deliveries without BUYER's prior written
authorization. All delivery dates shown on the Order(s) are to be
considered BUYER's on DOCK DATES. SELLER agrees to ship in sufficient
time to meet the required date without preceding it by more than five
(5) calendar days or exceeding it by more than zero (0) days provided
that the quantities and schedules are in accordance with the
requirements of this Agreement.
BUYER reserves the right to reschedule for later delivery any item on
the Order(s) at no charge, by giving notice at least fifteen (15)
working days prior to the date of the original scheduled due date of
that item.
BUYER's expectation is 100% On-Time delivery to SELLER's commitment.
SELLER shall maintain a minimum of 96% on-time delivery to SELLER
commitment as measured by BUYER's performance rating system. It is
understood that BUYER's minimum acceptable performance will increase
during the term of this Agreement.
7.2 DELAY
SELLER shall notify BUYER immediately, in writing, upon learning of
any circumstance that may cause a delay in delivery, stating the
period of delay and the reasons therefore. SELLER shall use
reasonable additional effort, including premium effort, and shall
ship via air or other expedited routing to avoid or minimize delay to
the maximum extent possible. All additional costs resulting from such
premium effort or premium transportation shall be borne by SELLER.
Nothing herein may be construed to prejudice any of the rights or
remedies provided to BUYER in the applicable Order or by law.
7.3 EXPEDITED DELIVERY
In the event BUYER has requirements that necessitate an expedited
delivery date, SELLER will strive to meet this need and any premium
charges shall be negotiated at time of Order. In the event SELLER
fails to exert reasonable effort to meet a delivery date for which
premium charges have been authorized, such charges shall become void.
8.0 ON-SITE REVIEW AND RESIDENT REPRESENTATIVES
8.1 REVIEW
At BUYER's request, SELLER shall provide at BUYER's facility, or at a
place designated by BUYER, a review explaining the status of any
Order, actions taken
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or planned to be taken relating to such Order and any other relevant
information. Nothing herein may be construed as a waiver of BUYER's
rights to proceed against SELLER because of any delinquency.
8.2 RESIDENT REPRESENTATIVES
BUYER may in its discretion and for such periods as it deems
necessary assign resident personnel at SELLER's facilities in
addition to the resident Quality Control personnel provided for in
Article 10.3, "Right of Entry". The resident team will function under
the guidance of BUYER's manager who will provide program coordination
within the scope of the work authorized by any Order. The resident
team will provide communication and coordination to ensure timely
performance of any Order. BUYER's resident team shall be allowed
access to all work areas, Order status reports and management review
necessary to assure timely coordination and conformance with the
requirements of each Order. SELLER, however, remains fully
responsible for performing in accordance with each Order.
9.0 PRODUCT CONFORMANCE
SELLER shall manufacture Product(s) listed in Attachment "A" to the
requirements set forth in the specifications listed in Attachment "A".
SELLER warrants that Products delivered under this Agreement shall conform
100% to the performance and design parameters of BUYER'S Specifications.
10.0 QUALITY CONTROL, INSPECTION, REJECTION, AND ACCEPTANCE
10.1 CONTROLLING DOCUMENT
All work performed under each Order shall be subject to Document
D1-9000 "Advanced Quality System for Boeing Suppliers", latest
revision as revised from time to time. Such document by this
reference is incorporated herein.
10.2 INSPECTION AND REJECTION
Products shall be subject to final inspection and acceptance by BUYER
at destination, notwithstanding any payment or prior inspection. All
Products from all lots received by BUYER shall either be new and
unused Products or Products authorized by BUYER's reject tag
disposition. Final inspection of a Product will be made within a
reasonable time after receipt of such Product. BUYER may reject any
or all of the Products which do not strictly conform to the
requirements of the applicable Order. BUYER may reject an entire lot
of Product based on discrepancies detected in a sample quantity
selected from the lot. BUYER shall by notice, rejection tag or other
communication notify SELLER of such rejection. At SELLER's risk and
expense, all such Products will be returned to SELLER for immediate
rework, replacement or other correction and redelivery or full credit
to BUYER; provided, however, that with respect to any or all of such
Products and at BUYER's election and at SELLER's risk and expense,
BUYER
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may: (a) hold, retain or return such Products without permitting any
rework, replacement or other correction by SELLER; (b) hold or retain
such Products for rework by SELLER or, at BUYER's election, for
rework by BUYER with such assistance from SELLER as BUYER may
require; (c) return such Products for full credit only (d) hold such
Products until SELLER has delivered conforming replacements for such
Products; (e) hold such Products until confirming replacements are
obtained from a third party; or (f) return such Products with
instructions to SELLER as to whether such Products shall be reworked
or replaced and as to the manner of redelivery. Any attempt by SELLER
to salvage Products rejected by BUYER shall be in accordance with the
BUYER's rejection tag disposition. BUYER shall provide rejection tag
documentation to the SELLER to authorize the salvage. Lots delivered
with BUYER's rejection tag deviations shall contain a copy of the
rejection tag authorizing such deviation and must be attached to the
applicable packing sheets. BUYER shall provide a copy of the
rejection tag to the SELLER. SELLER shall strive to complete all
rework, replacement and other corrections and redelivery within
fifteen (15) calendar days. All costs and expenses, loss of value and
any other damages incurred as a result of or in connection with
nonconformance and rework, replacement or other correction may be
recovered from SELLER by a mutually agreeable equitable price
reduction, set-off or credit against any amounts that may be owed to
SELLER under the applicable Order or otherwise.
BUYER may revoke its acceptance of any Products and have the same
rights with regard to the Products involved as if it had originally
rejected them.
10.3 SELLER'S NOTICE OF DISCREPANCIES
The SELLER shall notify BUYER, in writing within five (5) days,
should the SELLER believe and/or have been notified in any manner,
that non-compliant Product has or may have been delivered against
this Agreement. This condition shall survive beyond the performance
period of the Agreement.
10.4 RIGHT OF ENTRY
BUYER's authorized representatives and/or Federal Aviation
Administration may enter SELLER's plant at all reasonable times to
conduct preliminary inspections and tests of the Products and work-
in-process. SELLER shall include in its major subcontracts issued in
connection with an Order a like provision giving BUYER the right to
enter the plants of SELLER's subcontractors. BUYER may assign
representatives at SELLER's plant on a full-time basis. SELLER shall
furnish, free of charge, all office space, secretarial service and
other facilities and assistance reasonably required by BUYER's
representatives at SELLER's plant.
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10.5 CERTIFICATION
A certification that materials and/or finished parts have been
controlled and tested in accordance with and will meet specified
Order requirements and applicable specifications and that records are
on file subject to BUYER's examination shall be included on or with
the packing sheet accompanying each shipment. The drawing or
specification revision will be noted on such packing sheet. Such
packing sheet shall note if BUYER has provided materials. Copies of
manufacturing planning, test and inspection results or certifications
shall be furnished to BUYER on request.
10.6 RETENTION OF RECORDS
Quality Control records shall be maintained on file and available to
BUYER's authorized representatives. SELLER shall retain such records
for a period of not less than three (3) years from the date of final
payment under the applicable Order. Prior to disposal of any such
records, BUYER shall be notified and SELLER shall transfer such
records as BUYER may direct.
10.7 SOURCE INSPECTION
If an Order contains a notation that "Source Inspection" is required,
the Products may not be packed for shipment until they have been
submitted to BUYER's Quality Control representative for inspection.
Both the packing list and SELLER's invoice must reflect evidence of
this inspection.
11.0 PATENTS
SELLER shall defend any suit or proceeding brought against BUYER, insofar
as such suit or proceeding is based on a claim that goods manufactured and
supplied to BUYER constitute direct infringement of any patent or
copyright. SELLER must be notified promptly of such claim in writing and
must be given all necessary authority, information and assistance (at
SELLER's expense). SELLER will pay all damages and costs awarded against
BUYER.
If the use of such Product or part is enjoined, SELLER will, in its sole
discretion and expense, procure for BUYER the right to continue using said
Product or part, replace same with an acceptable non-infringing product or
part or modify it so that it becomes non-infringing, in a manner that is
acceptable to the BUYER.
SELLER shall have no liability for any infringement of patents, copyrights,
trademarks or other intellectual property rights resulting from use of said
Product other than as specified in relevant SELLER publications or from use
of said Product with Products not supplied by SELLER.
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12.0 EXAMINATION OF RECORDS
SELLER shall maintain complete and accurate records showing the sales
volume of all Products. Such records shall support all services performed,
allowances claimed and costs incurred by SELLER in the performance of each
Order, including but not limited to those factors which comprise or affect
direct labor hours, direct labor rates, material costs, burden rates and
subcontracts. Such records and other data shall be capable of verification
through audit and analysis by BUYER and be available to BUYER at SELLER's
facility for BUYER's examination and audit at all reasonable times from the
date of the applicable Order until three (3) years after final payment
under such Order. SELLER shall provide assistance to interpret such data if
required by BUYER. Such examination shall provide BUYER with complete
information regarding SELLER's performance for use in price negotiations
with SELLER relating to existing or future Orders for Products (including
but not limited to negotiation of equitable adjustments for changes and
termination/obsolescence claims pursuant to Article 14.0, "CHANGES"). BUYER
shall treat such information as confidential.
13.0 CHANGES TO SPECIFICATIONS
With respect to each Product, SELLER shall notify BUYER in writing whenever
SELLER's design or development activities indicate the need for any
configuration detail or function of such Product to differ from the Product
that has been qualification tested or previously delivered or from the
configuration in Seller's approved design. With respect to each Product,
SELLER shall obtain BUYER's approval prior to incorporation of:
a. Changes which alter the form, fit or function of such Product;
b. Changes which affect the repair or replacement interchange ability of
such Product;
c. Changes to processes after construction of the qualification test
Product;
d. Changes involving material or component substitution or finish
changes;
e. Changes that effect the downward compatibility of the Product;
f. Changes which alter the weight, center of gravity or moment of
inertia of such Product.
If BUYER requests, SELLER shall submit a supplement to the applicable
qualification report to document and qualify the above changes.
14.0 CHANGES
BUYER's Material Representative may at any time by written change Order
make reasonable changes within the general scope of an Order in any one or
more of the following: (a) drawings, designs or specifications; (b)
shipping or packing; (c) place of
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inspection, delivery or acceptance; (d) adjustments in quantities and
delivery schedules, or both; and (e) the amount of BUYER-furnished
property. SELLER shall proceed immediately to perform the Order as changed.
If any such change causes an increase or decrease in the cost of, or the
time required for, the performance of any part of the work, whether changed
or not changed by the change Order, an equitable adjustment shall be made
in the price of or the delivery schedule for those Products affected, and
the applicable Order and any affected pricing shown in Attachment "A" shall
be modified in writing accordingly. Any claim by SELLER for adjustment
under this Article must be received by BUYER in writing within thirty (30)
days from the date of receipt by SELLER of the written change Order or
within such further time as the parties may agree in writing or such claim
shall be deemed waived. Nothing in this paragraph shall excuse SELLER from
proceeding with an Order as changed, including failure of the parties to
agree on any adjustment to be made under this paragraph.
If SELLER considers that the conduct of any of BUYER's employees has
constituted a change hereunder, SELLER shall immediately notify BUYER in
writing as to the nature of such conduct and its effect on SELLER's
performance. PENDING DIRECTION FROM BUYER'S MATERIAL REPRESENTATIVE, SELLER
SHALL TAKE NO ACTION TO IMPLEMENT ANY SUCH CHANGE.
15.0 INVOICE AND PAYMENT
A separate invoice shall be issued for each shipment of Products. Unless
otherwise specified in the applicable Order, no invoice may be issued prior
to shipment of the Products. Payment shall be Net 30 days. Payment due
dates shall be computed from (a) the date of receipt of the Product, (b)
the date of receipt of a correct invoice or (c) the scheduled delivery date
of such Product, whichever is last, up to and including the date BUYER's
check is mailed. All payments are subject to adjustment for shortages,
credits and rejections. Invoices without this information will be
considered incomplete and return for correction. Mail to:
Boeing Defense & Space - Irving Co.
P.O. Box 152707
Irving, Texas 75015-2707
Attn: Accounts Payable
16.0 PACKAGING AND SHIPPING
SELLER shall prepare for shipment and suitably pack all Products to prevent
damage or deterioration, or comply with any special instructions stated in
the applicable Order. BUYER shall pay no charges for preparation, packing,
crating or cartage unless stated in the applicable Order. BUYER's Order
numbers and part numbers must be indicated on the applicable Bill of Lading
or packing list.
All shipments will be made via UPS GROUND. Any deviation from this method
must be authorized by the BUYER, or the BUYER's Material Representative.
10
17.0 WARRANTY
It is BUYER's expectation to receive 100% defect-free Product. SELLER
warrants that all Products delivered shall: (a) be free from defects in
material and workmanship; (b) conform to the requirements of the Order
including, but not limited to, the applicable descriptions, specifications
and drawings, and (c) be free from defects in design and fit for the
intended purpose for a period of three (3) years from date of delivery.
Products proved to be in non-conformance with the requirements stated above
shall be returned to SELLER pursuant to Article 10.2, "Inspection and
Rejection".
The warranty does not extend to any Product supplied by SELLER which has
been subjected to misuse, neglect or accident.
18.0 TERMINATION FOR DEFAULT
BUYER and/or SELLER may terminate this Agreement by written notice to the
other party upon the happening of any of the following events:
a. The SELLER and/or SELLER's Agent, or BUYER, seeks relief under any
provision of the bankruptcy or insolvency laws, or is adjudicated
bankrupt or insolvent, or in the event a receiver is appointed for
all, or substantially all, of its property;
b. If the SELLER defaults in the performance of its obligations under
this Agreement and fails to correct such default within thirty (30)
days of written notice by BUYER;
c. If SELLER fails to demonstrate to BUYER's satisfaction the ability to
meet the specifications referenced in Attachment "A".
In the event of BUYER's termination for default, SELLER must be notified of
such default in writing and given thirty (30) days from receipt of notice
of default. SELLER shall be liable for all costs and expenses for non-
delivered finished goods, raw material, work in process, components,
SELLER's commitments to its sources of supply and any damages incurred by
SELLER under this Agreement, or Orders released in conjunction with this
Agreement that occur prior to any cancellation.
19.0 TERMINATION FOR CONVENIENCE
BUYER may terminate the performance of the work under this Agreement in
whole at any time, or from time to time in part, by written notice to
SELLER. Upon receipt of such notice, SELLER shall, unless the notice
directs otherwise, immediately discontinue all work and the placing in all
orders for materials, facilities, and supplies in connection with
performance of this order and shall proceed to cancel promptly all existing
orders and terminate all subcontracts insofar as such orders or
subcontracts are chargeable to this order. Upon the termination of work
under this order, full and complete settlement of
11
all claims of SELLER with respect to the termination work shall be made as
follows: (Reference Article 12.0 "EXAMINATION OF RECORDS")
a. Shipments due forty-five (45) calendar days or less from date of
notification are not cancelable.
b. Cancellation of shipments for individual part numbers due forty-six
(46) calendar days or more from date of notification will be at no
charge to BUYER.
Under no circumstances shall BUYER'S cancellation liability for all
materials, subassemblies, or finished goods exceed the agreed to unit price
times the quantity of undelivered units.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT OR CONSEQUENTIAL
DAMAGES.
20.0 FORCE MAJEURE
Neither party shall be liable in damages for delay in delivery due to any
causes beyond the control or without its fault or negligence including,
without limitation, acts of God or the public enemy, acts of the
government, fires, flood, epidemics, quarantine restrictions, strikes,
freight embargo, and unusually severe weather. SELLER and/or BUYER shall
notify the other in writing of such causes within two (2) scheduled working
days after one first learns of same.
21.0 RESPONSIBILITY FOR PROPERTY
On delivery to SELLER or manufacture or acquisition by it of any materials,
parts, tooling or other property, title to any of which is with BUYER,
SELLER shall assume the risk of and be responsible for any loss thereof or
damage thereto. In accordance with the provisions of an Order, but in any
event on completion thereof, SELLER shall return such property to BUYER in
the condition in which it as received except for reasonable wear and tear
and except to the extent that such property has been incorporated in
Products delivered under such Order or has been consumed in the normal
performance of work under such Order.
22.0 TECHNOLOGICAL DEVELOPMENTS
SELLER shall promptly advise BUYER of technological advances which are
known, or become known, to SELLER over the course of performance of its
obligations under this Agreement, which may result in the product(s) having
added value to BUYER. Should BUYER elect to incorporate such advances, it
shall do so pursuant to the conditions of Article 13.0, "CHANGES TO
SPECIFICATIONS".
12
22.1 PROPRIETARY INFORMATION
Proprietary Information Agreement Number 91-3014 dated October 30,
1991, shall remain in force through the term of this Agreement and is
incorporated, by reference, into this Agreement.
23.0 COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
SELLER warrants that in the performance of each Order it has complied with
and will comply with all applicable federal, state and local laws and
ordinances and all Orders, rules and regulation thereunder. In SELLER's
invoice or other form satisfactory to BUYER, SELLER shall certify that the
Products covered by the applicable Order were produced in compliance with
Sections 6, 7, and 12 of the Fair Labor Standard Act (29 U.S.C. 201-219),
as amended, and the regulations and Orders of the U.S. Department of Labor
issued under Section 14 thereof.
The "Equal Opportunity" clause in FAR 52.222-26,-35, -36 is incorporated
herein by this reference, except "Contractor" shall mean SELLER.
23.1 CLEAN AIR ACT
The item(s) to be delivered under this Agreement may be manufactured
using Class 1 ozone depleting substances and the following warning
statement shall apply to such items(s):
WARNING: MANUFACTURED WITH CFC-11, 12, 13, 111, 112, 113, 114, 115,
211, 212, 213, 214, 215, 216, 217, HALONS 1211, 1301, 2402, CARBON
TETRACHLORIDE OR METHYL CHLOROFORM SUBSTANCES WHICH HARM PUBLIC
HEALTH AND ENVIRONMENT BY DESTROYING OZONE IN THE UPPER STRATOSPHERE.
The item(s) to be delivered under this Agreement may contain Class 1
ozone depleting substances and the following warning statement shall
apply to such item(s):
WARNING: MANUFACTURED WITH CFC-11, 12, 13, 111, 112, 113, 114, 115,
211, 212, 213, 214, 215, 216, 217, HALONS 1211, 1301, 2402, CARBON
TETRACHLORIDE OR METHYL CHLOROFORM SUBSTANCES WHICH HARM PUBLIC
HEALTH AND ENVIRONMENT BY DESTROYING OZONE IN THE UPPER STRATOSPHERE.
It is agreed that the above warning statements satisfy the
requirement of the Clean Air Act Amendments of 1990 (Section 611),
Title 40 CFR Part 82. Accordingly, no method of marking or tagging
items shall be used unless the item is a chemical or chemical
compound.
13
24.0 BUYER'S RIGHTS IN SELLER'S DATA, PATENTS AND TOOLING
BUYER shall have an irrevocable, nonexclusive, free license to use, and
license others to use on BUYER's behalf, all of SELLER's patents, designs,
processes, drawings, technical data and tooling related to the development,
production, maintenance or rework of any Product; provided, however, that
such license is conditioned upon the occurrence of one or more of the
following events:
a. Institution of reorganization, arrangement or liquidation proceedings
by or against SELLER;
b. Failure of SELLER's trustee in bankruptcy or SELLER as debtor in
possession to assume any Order within sixty (60) days after a
bankruptcy petition was filed;
c. SELLER's insolvency;
d. Appointment of a trustee or receiver for SELLER's property or
business;
e. Assignment for the benefit of creditors of SELLER;
f. SELLER's suspension of production of all or any of such Product;
g. SELLER's suspension of business operations;
h. Cancellation of any Order in whole or in part pursuant to Article
18.0, "TERMINATION FOR DEFAULT"; or
i. The acquisition of SELLER by, or SELLER's sale of any or all of its
rights to manufacture such Product to, a third party, when the sale
of any or all of those rights precludes in any way, shape, or form
the SELLER's ability to manufacture and deliver any or all of those
Products listed on Attachment "A".
In support of the license granted herein, and without further cost to
BUYER, SELLER shall provide all assistance BUYER requires to permit the
immediate transfer of the patents, designs, processes, drawings, technical
data and tooling to BUYER in a manner that satisfies BUYER's production
requirements.
25.0 NOTICES
Notices and other communications shall be given in writing to the
respective party as follows:
25.1 ADDRESSES
To BUYER: BOEING DEFENSE & SPACE - IRVING CO.
3131 STORY ROAD WEST
IRVING, TEXAS 75038
ATTN: PROCUREMENT REPRESENTATIVE
MAIL STOP: TR-41
14
To SELLER: CORY COMPONENTS
2201 ROSECRANS AVE.
EL SEGUNDO, CALIFORNIA 90245
ATTN: MR. BRIAN GAMBERG
25.2 EFFECTIVE DATE
The date on which any such communication is delivered to the
addressee is the effective date of such communication.
26.0 PUBLICITY
SELLER may not, and shall require that its subcontractors and suppliers of
any tier may not, cause or permit to be released any publicity,
advertisement, news release, public announce, or denial or confirmation of
the same, in whatever form, regarding any aspect of any Order without
BUYER's prior written approval.
27.0 FACILITIES
SELLER shall bear all risk of providing adequate facilities and equipment
to perform each Order in accordance with the terms thereof. If any
contemplated use of government or other facilities or equipment is not
permitted by the government or is not available for any other reason,
SELLER shall be responsible for arranging for equivalent facilities and
equipment at no costs to BUYER. Any failure to do so does not excuse any
deficiencies in SELLER's performance or affect BUYER's right to cancel
under Article 18.0 "TERMINATION FOR DEFAULT", or under any provision of
law.
28.0 RELIANCE
SELLER acknowledges that SELLER is an expert in all phases of the work
involved in producing and supporting the Products, including but not
limited to the designing, testing, developing, manufacturing, improving,
and servicing of the Products. SELLER agrees that BUYER and BUYER's
customers may rely on SELLER as an expert and SELLER will not deny any
responsibility or obligation hereunder to BUYER or BUYER's customers on the
grounds that BUYER or BUYER's customers provided recommendations or
assistance in any phase of the work involved in producing or supporting the
Products, including but not limited to BUYER's acceptance of
specifications, test data or the Products.
29.0 ASSIGNMENT
This Agreement shall insure to the benefit of and be binding on each of the
parties hereto and their respective successors and assigns, provided
however, that no assignment of any rights or delegation of any duties under
such Agreement is binding on either party unless the other party's written
consent has first been obtained. Notwithstanding the above, SELLER may
assign claims for monies due or to become due under any Order provided that
BUYER may recoup or setoff any amounts covered by any such assignment
against any indebtedness of SELLER to BUYER, whether arising before or
after the date of the
15
assignment or the date of this Agreement, and whether arising out of any such
Order or any other agreement between the parties. BUYER may settle all claims
arising out of any Order, including termination claims, directly with SELLER.
BUYER may unilaterally assign any rights or title to property under this
Agreement to any wholly-owned subsidiary of The Boeing Company.
30.0 SUBCONTRACTING
SELLER may not procure any Product from a third party in a completed or a
substantially completed form without BUYER's prior written consent.
31.0 NOTICE OF LABOR DISPUTES
SELLER shall immediately notify BUYER of any actual or potential labor
dispute that may disrupt the timely performance of an Order. SELLER shall
include the substance of this Article, including this sentence, in any
subcontract relating to an Order if a labor dispute involving the
subcontractor would have the potential to delay the timely performance of
such Order. Each subcontractor, however, shall only be required to give the
necessary notice and information to its next higher-tier subcontractor.
32.0 NON-WAIVER
Neither party's failure at any time to enforce any provision of this
Agreement does not constitute a waiver of such provision or prejudice the
other party's right to enforce such provision at any subsequent time.
33.0 HEADING
Article and paragraph headings used in this Agreement are for convenience
reference only and do not affect the interpretation of the Agreement.
34.0 PARTIAL INVALIDITY
If any provision of this Agreement is or becomes void or unenforceable by
force or operation of law, the other provisions shall remain valid and
enforceable.
35.0 APPLICABLE LAW; JURISDICTION
This Agreement shall be governed by, subject to and construed according to
the laws of the State of Texas. For purposes of applying Texas law, this
Agreement shall be deemed to have been entered into and wholly performed in
Texas.
36.0 TAXES
36.1 EXCLUSION OF TAXES IN PRICE
All items purchased will be exempt from Texas State and local sales
and use taxes under certificate number 1-91-0840170-4.
16
36.2 TAX CLAIMS
In the event that SELLER invoices and collects a tax for a state or
local taxing authority that SELLER should not have collected from
BUYER because of 36.1 above, SELLER shall promptly refund to BUYER
the amount of tax collected by SELLER.
37.0 ENTIRE AGREEMENT; ORDER OF PRECEDENCE
This Agreement sets forth the entire agreement, and supersedes any and all
other agreements, understandings, representations, and communications
between BUYER and SELLER, whether written or oral, related to the subject
matter of such Order. In addition to the documents previously incorporated
herein by reference, the documents listed below are by this reference made
a part of this Agreement:
A. Specification Control Documents.
B. Any other exhibits or documents agreed to by the parties to be a part
of this Agreement.
In the event of a conflict or inconsistency between any of the terms of the
following documents, the following order of precedence shall control:
A. Purchase Agreement
B. Order
C. Specification Control Drawing (if applicable)
D. Any other exhibits or documents the parties agree shall be part of
this Agreement.
17
EXECUTED in duplicate as of the date and year first written above by the duly
authorized representatives of the parties.
BUYER: SELLER:
BOEING DEFENSE & SPACE -
IRVING CO. CORY COMPONENTS
/s/ John Chiarello /s/ Brian Gamberg
- ---------------------------- ------------------------------
John Chiarello Brian Gamberg
Contract Administrator/Buyer President
3-21-95 3-15-95
- ---------------------------- ------------------------------
Date Date
/s/ T.D. (Tim) Fehr
- ----------------------------
T.D. (Tim) Fehr
Vice President - CAS
5 May 95
- ----------------------------
Date
18
ATTACHMENT "A"
SPECIFICATIONS AND PRICING
TO AGREEMENT NO. 9423JC4548
5 YEAR
SPEC NUMBER EST. USAGE PRICE
----------- ---------- -----
S906-70293-111 * 13,800 EA $20.58 EA
S906-70293-112 30,900 EA $16.44 EA
S906-70293-113 * 10,200 EA $45.95 EA
S906-70293-114 * 10,200 EA $23.85 EA
S906-70293-115 30,900 EA $26.55 EA
S906-70293-210 30,900 EA $ 7.77 EA
S906-70297-16 49,500 PR $20.79 EA
S906-70297-28 148,500 PR $ 2.88 PR
S906-70297-29 49,500 EA $22.97 EA
S906-70297-30 49,500 EA $53.22 EA
S906-70293-221 *USAGE EST. $21.58 EA
SHARED WITH
S906-70293-111
S906-70293-222 *USAGE EST. $24.85 EA
SHARED WITH
S906-702093-114
S906-70293-225 * USAGE EST. $46.95 EA
SHARED WITH
S906-70293-113
NOTE:
QUANTITIES SHOWN ARE ESTIMATES FOR PLANNING PURPOSES ONLY AND DO NOT
REPRESENT A FIRM COMMITMENT.
19
ATTACHMENT "B"
LEADTIME
TO AGREEMENT NO. 9423JC4548
LEADTIME IN WEEKS
SPEC NUMBER 1995 1996 1997 1998 1999
S906-70293-111 10 8 8 8 8
S906-70293-112 10 8 8 8 8
S906-70293-113 10 8 8 8 8
S906-70293-114 10 8 8 8 8
S906-70293-115 10 8 8 8 8
S906-70293-210 10 8 8 8 8
S906-70297-16 10 8 8 8 8
S906-70297-28 10 8 8 8 8
S906-70297-29 10 8 8 8 8
S906-70297-30 10 8 8 8 8
S906-70293-221 10 8 8 8 8
S906-70293-222 10 8 8 8 8
S906-70293-225 10 8 8 8 8
20
ATTACHMENT "C"
SUPPLIER SCHEDULING PROGRAM
TO AGREEMENT NO. 9423JC4548
BUYER (Irving, Texas Plant) shall implement a Supplier Scheduling Program
("Program") with SELLER based on BUYER's Program's disciplines and techniques.
BUYER and SELLER have agreed to the following terms and conditions relating to
BUYER's Program:
1. BUYER shall provide SELLER with educational training on BUYER's Program.
2. BUYER shall eliminate the processing of formal, individual Purchase Orders.
3. BUYER shall, on a weekly basis, process and provide SELLER with BUYER's
Supplier Scheduling Reports ("Reports"). An example of this Report is
provided in Attachment "D".
4. Each Report provided to SELLER by BUYER shall contain the following
information:
A. Each Report shall identify BUYER's and SELLER's part number.
B. On each report an asterisk ("*"), if any, shall precede each line item
that identifies quantities and specific dates which represents BUYER's
confirmed release requirements, and shall be construed as SELLER's
authorization to manufacture and ship such products to BUYER in the
quantities and in accordance with the dates specified on the Report.
C. Line items that contain quantities and specific dates, and are not
preceded with an asterisk, represent BUYER's offer to purchase such
quantities of product(s). SELLER shall indicate its acceptance,
acceptance with modification or rejection to BUYER's offer within
three (3) business days of receipt of BUYER's Report. If, through no
fault of the BUYER, SELLER fails to respond by the close of business
on the third (3rd) working day after receipt of the BUYER's Report,
BUYER shall proceed as though the SELLER had accepted. ("Silence is
acceptance/approval").
On an existing committed receipt, SELLER shall have three (3) working
days from date of BUYER's notification to SELLER to accept BUYER's
reschedule in, reschedule out or cancellation. If, through no fault of
the BUYER, SELLER fails to respond by the close of business on the
third (3rd) working day after receipt of the BUYER's Report, BUYER
shall proceed as though the SELLER had accepted.
21
Upon SELLER's verbal or written acceptance to BUYER's offer to
purchase products, BUYER shall immediately modify the Report by adding
an asterisk ("*") to the appropriate line item(s) to signify
confirmation of order release.
D. Those quantities listed in monthly and/or quarterly columns without an
asterisk and/or specific date are to be used by the SELLER for
"PLANNING" purpose ONLY. This information is subject to automatically
change as our Material Requirements Planning (MRP) changes. These
quantities shall be referred to as projected forecasts and/or planned
orders.
5. For Item 4 refer to Attachment "D" which represents an example report.
6. SELLER shall reference the master agreement number and the contract number
(See Attachment "D" on the packing lists and invoices issued under this
Supplier Scheduling Section. See Article 15.0 "Invoice and Payment" and
16.0 "Packaging and Shipping" for additional references required.
7. SELLER agrees to be bound by BUYER's Supplier Scheduling program in the
area of offer and acceptance (Refer to Item 4[C]).
8. SELLER agrees all terms and conditions of this Agreement shall apply to
Supplier Scheduled part numbers, (i.e., selling price, lead-time, payment
terms, FOB, warranties, etc.) as modified in this Supplier Scheduling
section.
9. To the best of BUYER's knowledge, all fields of information on the Report
are correct. If SELLER discovers any discrepancies or errors in the Report,
SELLER shall notify BUYER in within three (3) working days of such
discovery.
22
ATTACHMENT "D"
AGREEMENT NO. 9423JC4548
PMS-SSS-B02 (VERSION: 10/22/92) BOEING AEROSPACE AND ELECTRONIC - IRVING 02/03/95 09:43 PAGE: 1
DELIVER TO: PCR
SUPPLIER SCHEDULE REPORT
FOR: CORY COMPONENTS
Supplier Name
Scheduler
Report
02/03/95
CORY COMPONENTS BA&E-I
2201 ROSECRANS AVENUE 3131 STORY ROAD WEST
EL SEGUNDO, CA 90245 IRVING, TX 75038
9423JC4548 SARAH HART
310-536-0034 214-659-2681
310-536-0206 214-659-4198
REFERENCE: MASTER AGREEMENT 9423JC4548
23
ATTACHMENT "D"
BOEING DEFENSE & SPACE - IRVING CO.
SUPPLIER SCHEDULE REPORT
for XYZ CORPORATION
P/N: DESC: P. O. XX-XXXXX START: 9-1-94 STOP: 8-31-99
SUPPLIER P/N: U/M: EA ABCD: A PRICE: L/T: 30 S/C AA
REL TO DATE: 398 QTY TO STOCK: 298 QTY PAST DUE: 100 QTY ON DOCK: 0 LAST RCVD DATE: 04/24/91
NEXT NEXT
JUN/91 JUL/91 AUG/91 SEPT/91 OCT/91 NOV/91 DEC/91 JAN/92 FEB/92 MAR/92 APR/92 MAY/92 QTR QTR
- ----------------------------------------------------------------------------------------------------------------------------------
100 150 195 0 0 235 0 0 85 205 0 150 70 55
06/10* 07/15
70 75
100 0 0 0 0 0 0 0 0 0 0 0
06/22 *
- ----------------------------------------------------------------------------------------------------------------------------------
200 150 195 0 0 235 0 0 85 205 0 150 140 130
- ----------------------------------------------------------------------------------------------------------------------------------
EXTERNAL NOTES: SHP: SPECIAL SHIPPING INSTRUCTIONS
CXL: CANCEL IDENTIFIED SCHEDULE/QUANTITY
R/I: RESCHEDULE-IN REQUEST
R/O: RESCHEDULE-OUT REQUEST
24
AGREEMENT NO. D&SG/PIA-91-3014
PROPRIETARY INFORMATION AGREEMENT
Effective October 30, 1991, The Boeing Company, Defense & Space Group, acting
through its Electronics Systems Division, having an office at Seattle,
Washington, and Cory Components, having an office at El Segundo, California,
agree as follows:
1. The parties may exchange information, some of which may be Proprietary
Information, as defined below, for the purposes of review, evaluation, new
Boeing parts development and source selection in connection with 777 development
efforts (hereinafter referred to as the "Project"). The parties desire to
protect such Proprietary Information from unauthorized disclosure and use under
the terms and conditions herein.
2. For purposes of this Agreement, Proprietary Information means information
related to connectors and connector technology, including compliant pin
connectors; and which is disclosed hereunder by one party to the other in
connection with the Project; provided that, when disclosed, such information is
in written or other permanent form and is identified as proprietary to the
originating party by clear and conspicuous markings. Information not in written
or other permanent form shall be considered Proprietary Information from time of
disclosure, provided originating Party identifies such information as
proprietary at the time of disclosure and sends receiving Party a detailed
written description of the information, with such clear and conspicuous
markings, within thirty (30) days of the disclosure.
Page 1 of 5
3. Each party shall preserve Proprietary Information (other than Boeing parts
drawings) received from the other party in confidence for a period of five (5)
years from the effective date of this Agreement. During this period, each party
shall not disclose such Proprietary Information to any third party without
written authorization from the originating party. Proprietary Information in the
form of a Boeing parts drawing shall be preserved in confidence, and shall not
be disclosed to any third party without written authorization from Boeing, until
such time as Boeing gives written notice to the other party that the drawing is
no longer proprietary to Boeing.
4. Until such time as this Agreement shall terminate pursuant to paragraph 9,
each party may use Proprietary Information received from the other party, but
only for the purposes set forth in paragraph 1. Upon the expiration of the
period set forth in paragraph 3, all limitations on use of Proprietary
Information shall cease.
5. The obligations of this Agreement regarding disclosure and use of
Proprietary Information shall be satisfied by each party through the exercise of
the same degree of care (provided the degree of care is reasonable) used to
restrict disclosure and use of its own information of like importance.
6. This Agreement shall not restrict disclosure or use of Proprietary
Information that is:
A. Known to the receiving party without restriction as to further
disclosure when received, or thereafter is developed
independently by the receiving party; or
B. Obtained without restriction as to further disclosure from a
source other than the originating party through no breach of
confidence by such source; or
Page 2 of 5
C. In the public domain when received, or thereafter enters the
public domain through no fault of the receiving party; or
D. Disclosed by the originating party to a third party, including
the United States Government, without restriction as to further
disclosure.
7. Proprietary Information shall remain the property of the originating party.
Neither this Agreement nor the disclosure of Proprietary Information shall be
construed as granting any right or license under any inventions, patents,
copyrights, or the like, now or hereafter owned or controlled by either party.
Any such disclosure shall not constitute any representation, warranty,
assurance, guaranty or inducement concerning the infringement of any patent or
other rights of others. No warranty of accuracy or completeness of any
Proprietary Information is provided herein.
8. Proprietary Information, as well as notices and authorizations under this
Agreement, shall be transmitted between the parties addressed as follows:
Boeing Defense & Space Group Cory Components
P.O. Box 3999 2201 Rosecrans Ave.
Seattle, WA 98124-2499 El Segundo, CA 90245
Attention: J. Chiarello Attention: Brian Gamberg
M/S OU-34
Telephone: (206) 342-3324 Telephone: (213) 536-0034
A party may change its address or designee by written notice to the other party.
9. This Agreement may be terminated by either party upon thirty (30) days
written notice to the other. Unless thus earlier terminated, this Agreement
shall terminate upon completion of the Project or upon
Page 3 of 5
expiration of a period of three (3) years from the effective date set forth
above, whichever occurs first. Termination of this Agreement for any reason
shall not relieve either party of any obligation to preserve Proprietary
Information received prior to termination in confidence pursuant to paragraph
3, and all such obligations shall continue until expiration of the period set
forth in paragraph 3.
10. Upon termination, each party shall cease use of Proprietary Information
received from the other party, and shall, upon request, utilize its best efforts
to destroy all Proprietary Information, including copies thereof, then in its
possession or control. Alternatively, at the request of the originating party,
the receiving party shall return all such Proprietary Information and copies to
the originating party. Notwithstanding the other provisions of this paragraph,
each party may retain one copy of such Proprietary Information, but only for
archival purposes.
11. Each party shall bear all costs and expenses incurred by it under or in
connection with this Agreement. Nothing in this Agreement creates an obligation
by either party to enter into a contract, subcontract, or other business
relationship with the other party in connection with the Project.
12. The rights and obligations provided by this Agreement shall take precedence
over specific legends or statements associated with Proprietary Information
when received.
13. This Agreement contains the entire understanding between the parties,
superseding all prior or contemporaneous communications, agreements, and
understandings between the parties with respect to the disclosure and protection
of Proprietary Information in connection
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with the Project. This Agreement shall not be amended except by further written
agreement executed by duly authorized representatives of the parties.
IN WITNESS WHEREOF, the duly authorized representatives of the parties execute
duplicate originals of this Agreement.
THE BOEING COMPANY CORY COMPONENTS
Defense & Space Group
Electronics Systems Division
By /s/ John Chiarello By /s/ Brian Gamberg
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Title Buyer Title President
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Date 10-30-91 Date 11/4/91
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