EXHIBIT 10.1
SERVICE AGREEMENT
This agreement is effective as of the ____ of ______ 1996 the ("Effective
Date") by and between:
VISCORP
Having a principal place of business at: 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000 XXX,
Represented by Xx. Xxx Xxxxxxxxx acting as Vice President of Engineering,
Hereafter referred to as "Viscorp".
and
SOLECTRON FRANCE SA,
Having a principal place of business at Xxxxxx Xxxxxxxxxxxxx, 000, XX 0,
Xxxxxxx, 00000 Xxxxxx Cedex, France
Represented by Xxxx-Loup Xxxxxxxx acting as Vice President of Sales.
Hereafter referred to as "Solectron"
Solectron is engaged in the business of pre-manufacturing services,
manufacturing, assembling, testing and packaging of electronic products.
Viscorp is a development stage company.
Viscorp wishes Solectron to provide on behalf of Viscorp, pre-manufacturing
services, including the Base Board Printed Circuit layout of Rio Project.
Solectron has agreed to provide these services.
The parties wish to enter into this Agreement to set out their mutual rights and
obligations in respect to the foregoing, and therefore mutually agree as
follows:
1.0 PRECEDENCE:
1.1 The terms and conditions and addenda herein shall govern all services
performed by Solectron pertaining to the subject matter.
1.2 It is the intent of the parties that this Agreement and its addenda
represent the entire agreement and shall prevail over the terms and conditions
of any purchase order, acknowledgment form or other instrument.
1.3 This Agreement may be executed in one or more counterparts, each of which
will be deemed the original, but all of which will constitute but one and the
same document. The parties agree this Agreement and its addenda may not be
modified except in writing signed by both parties.
2.0 TERM
2.1 This Agreement shall commence on the effective date and shall continue
until design participation is completed. For subsequent follow on production
including pilot run and full production ramp-up, both parties agree to enter
into a new agreement.
3.0 SERVICE DESCRIPTION
Solectron will pursuant to the specifications and electrical drawing provided by
Viscorp to Solectron and contained in Addendum A, perform following services on
behalf of Viscorp.
A) Solectron will propose to Viscorp Printed Circuit layout for Base Board,
including
- Netlist import
- Placement and routing
- Design for manufacturing
- Documentation.
This Printed Circuit layout proposal will need to be formally approved by
Viscorp during the placement review scheduled at the end of the printed Circuit
layout stage.
B) Material procurement
Unless otherwise specified, Solectron shall purchase on behalf of Viscorp, all
nonconsigned material necessary to perform the services hereunder according to
Viscorp Approved Vendor List.
Solectron is responsible for monitoring supplier quality, including quality
problem solving, on standard components from Solectron AVL.
For single source product, and or customized product, Viscorp is responsible to
ensure that the supplier can consistently procure the components at the quantity
and quality levels in line with the project requirement.
Any proposal made by Solectron to improve the quality of components will have to
be formally approved by Viscorp prior to implementation.
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C) Assembly and test of 30 Prototypes.
Solectron will assemble and test 30 Prototypes in conformity with the technical
specifications given by Viscorp to Solectron.
Test will be visual test only.
Any additional prototype request from Viscorp will be subject to an Addendum
specifically referencing this Agreement.
4.0 VISCORP'S OBLIGATIONS
Before the start of service, Viscorp will provide Solectron with all necessary
information for the manufacture of Viscorp's prototypes.
- Technical specifications,
- Complete part number data, and data sheets for new components,
- Finalized Xxxx of Material,
- Drawings,
- Approved Vendor List "AVL".
- Viscorp will provide to Solectron such technical support as Viscorp and
Solectron mutually determine necessary to complete performance under this
Agreement.
- Viscorp will provide Solectron with the assistance of an Electronic
designer from Viscorp, during the PCB layout development.
- Viscorp will closely work with Solectron Purchasing Department to find
suitable replacements for obsolete or hard-to-find components, in Solectron AVL
whenever possible.
- Viscorp will provide preliminary component sketch for base PCB layout.
- Viscorp will send finalized Base PCB netlist with IC and connector pin-
numbering information to Solectron.
- Before commencing work hereunder, Viscorp must have issued to Solectron a
purchase order to fund the services herein. Viscorp will issue a purchase order
which shall contain following information:
- service description
- delivery schedule and price as agreed upon by both parties.
3.0 SOLECTRON'S OBLIGATIONS
Solectron will provide service described in section 3 of this Agreement
according to following schedule:
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Five (5) to seven (7) weeks after the receipt of Viscorp's order, Solectron
shall deliver to Viscorp two (2) Prototypes, providing that the Printed Circuit
layout proposed by Solectron has been formally approved by Viscorp during the
placement review as scheduled.
Five (5) to eight (8) additional days, after Viscorp formal approval of the 2
prototypes, Solectron will deliver the remaining 28 prototypes, if no change has
to be implemented.
Solectron will make its best efforts to assume its responsibilities within those
schedule limits.
Service will be fully completed when Solectron delivers to Viscorp the 30
prototypes corresponding to the service described in section 3 of this
Agreement.
4.0 PRICING
Pricing conditions for services sold under this Agreement are as follows:
- PCB layout of Base Board: 48 000 FF.
- 30 Prototypes 183 000 FF.
- Total Service Price is 231 000 FF. (taxes excluded).
5.0 PAYMENT TERMS
5.1 Solectron and Customer agree to following payment terms:
30% net of the total amount upon receipt of order,
30% net of the total amount upon placement review,
40% net of the total amount upon prototypes delivery
Payment will be made in French Francs.
5.2 Until the purchase price and all other charges payable to Solectron have
been received in full, Solectron retains and Viscorp grants to Solectron a
security interest in the prototypes delivered to Viscorp and any proceeds
therefrom.
6.0 DELIVERY
6.1 Delivery is ex works Solectron Canejan (according to Incoterm 1990).
Viscorp is responsible for all transportation, insurance, duties, customs
formalities and charges, applicable to Product sold under this Agreement.
Risk of loss and damage to Products pass to Viscorp upon delivery to Carrier at
Solectron Canejan.
Title to Product(s) pass to Viscorp upon complete payment of Prototypes by
Viscorp.
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7.0 ACCEPTANCE
Solectron will deliver prototypes that will conform to the technical
specifications contained in Addendum A.
Viscorp shall have five (5) working days from the date of receipt within which
to inspect the prototypes prior to Viscorp acceptance thereof.
Viscorp will notify Solectron in writing of all matter deficiencies discovered
during the inspection period. Failure to give notice within the five (5) days
period will result in Viscorp's full acceptance of the Prototypes.
8.0 PROJECT CHANGES
Any change in the concept of the design, features and configuration will be
mutually reviewed and agreed upon. All impacts such as design costs, inventory
costs, development expenses and delay in delivery schedules caused by those
changes will be mutually reviewed and agreed upon prior to implementation.
9.0 CANCELLATION AND LIABILITY
In case of cancellation of the service subject of this Agreement, Viscorp
accepts to pay to Solectron, all services performed prior to such termination,
whether those services are completed or not, all development, and all inventory
expenses as follows,
(i) the contract price of all finished Prototypes in Solectron's
possession,
(ii) the cost of material inventory (including handling charges and
value add), whether in raw form or work in process, and not
returnable to the vendor or usable for other customers,
(iii) the cost of material on order (including handling charges) which
cannot be canceled, and
(iv) any vendor cancellation charges incurred with respect to material
canceled or returned to the vendor.
10.0 CONFIDENTIALITY
Solectron and Viscorp agree to execute, as part of this Agreement, the Non
disclosure Agreement for the reciprocal protection of confidential information
signed on February 26, 1996 by the President and CEO of Viscorp, Xx. Xxxxxxx X.
Xxxx and the President of Solectron France, Xx. Xxxx-Xxxxxxxx Xxxxxxx.
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11.0 INTELLECTUAL PROPERTY
For the purpose of this Agreement "Invention" shall mean any idea, design,
concept, technique, invention, discovery or improvement, whether or not
patentable or registerable, which is conceived or reduced to practice during
this Agreement and in the performance of services hereunder. Those Inventions
will be treated as follows:
Each Solectron Invention shall be Solectron's property and Viscorp will have no
license. Each Viscorp Invention shall be Viscorp's property and Solectron will
have no license (text appears to be missing) joint inventions shall be jointly
owned by Solectron and Viscorp, and each party shall have the right to use it as
it wishes.
No license on patents acquired by one party prior to or after the date of this
Agreement is granted to the other party either expressly or impliedly.
In furnishing any information, or other elements hereunder, the disclosing party
makes no warranty, express or implied that the use or reproduction of any
information or element hereunder shall be free from any patent, trade secret or
copyright infringement.
Solectron shall be deemed to have been granted by Viscorp a non-exclusive,
royalty free license during the term of this Agreement and to use all of
Viscorp's patents, trade secrets, trademarks, copyrights and other intellectual
property required to perform Solectron's obligations under this Agreement.
12.0 PATENT, COPYRIGHT, AND TRADEMARK INDEMNITY
Each party (the "indemnifying party") shall defend, indemnify, and hold
harmless the other party from any claims by a third party of infringement of
intellectual properties resulting from the acts of the indemnifying party
pursuant to this Agreement, provided that the other party,
(i) give the indemnifying party prompt notice of any such claims,
(ii) renders reasonable assistance to the indemnifying party thereon,
and
(iii) permits the indemnifying party to direct the defense of the
settlement of such claims.
13.0 LIMITATION OF LIABILITY
13.1 In all situations involving performance or nonperformance of service
provided hereunder, Viscorp's remedy for defect is repair or replacement of the
defective prototype by Solectron if notified by Viscorp of the defect within the
acceptance period. If Solectron fails to perform its service responsibilities,
Viscorp shall be entitled to recover direct damages limited to the price of the
specific prototype which is purchased by Viscorp and which gives
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rise to the claim. This limitation will apply regardless of the form of action,
including without limitation negligence.
13.2 Under no circumstances including negligence, shall either party be
liable for any indirect, incidental, special or consequential damages resulting
from this Agreement, including but not limited to loss of profit, loss of
production, loss of contracts, even if either party or an authorized
representative has been advised of the possibility of such damages.
13.3 Viscorp warrants Solectron from all claims suits or proceedings of
third parties.
14.0 FORCE MAJEURE
Neither shall be liable for any failure or delay in its performance under this
Agreement due to acts of God, acts of civil or military authority, fires,
floods, earthquakes, riots, wars, sabotage, labor shortages or disputes,
destruction of production facilities, material unavailability or any other cause
beyond the reasonable control of the delayed party provided that the delayed
party:
(i) gives the other party written notice of such cause within fifteen (15)
days of the discovery of the event; and
(ii) uses its reasonable efforts to remedy such delay in its performance.
15.0 TERMINATION
15.1 If either party fails to meet anyone or more of the terms and
conditions as stated in either this Agreement or the addenda, Solectron and
Viscorp agree to negotiate in good faith to resolve such default. If the
defaulting party fails to cure such default or submit an acceptable written
plan to resolve such default within five (5) working days following notice of
default, the nondefaulting party shall have the right to terminate this
Agreement.
15.2 This Agreement shall immediately terminate should either party:
(i) become insolvent;
(ii) enter into or filing a petition, arraignment or proceeding
seeking an order for relief under the bankruptcy laws of its
respective jurisdiction,
(iii) enter into a receivership of any of its assets or,
(iv) enter into a dissolution of liquidation of its assets or an
assignment for the benefit of its creditors.
15.3 In case of termination and unless otherwise stipulated,
Solectron will deliver and Customer will pay all prototypes mentioned on the
purchase order accepted by Solectron before expiration or termination date.
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In the event Viscorp terminates this Agreement before service completion, or in
the event Solectron terminates this Agreement based on Viscorp's default,
Viscorp will compensate Solectron as stipulated in section 9 of this Agreement.
Each party will promptly return to the other party, all technical and / or
Confidential Documents related to the present Agreement.
16.0 GENERAL
16.1 Insurance
Each party to this Agreement will maintain necessary insurance to cover its
liabilities and protect itself from claims.
16.2 Assignment
Neither party shall delegate, assign or transfer its rights or obligations under
this Agreement, whether in whole or part, without the written consent of the
other party.
Failure by either party to enforce any provision of this Agreement shall not be
deemed to be a continuing waiver or a waiver of any other default or other term
and condition.
16.3 Severability.
If any provision of this Agreement is held by a court of competent jurisdiction
to be unenforceable, such provision shall be deemed null and void, and the
remainder of the Agreement shall continue to be in full force and effect, while
the parties shall negotiate in good faith to replace the provision with another
enforceable one reflecting as closely as possible the parties initial intention.
16.4 Relationship of the Parties.
Each of the parties shall at all times during the term of this Agreement act as,
and shall represent itself to be, an independent contractor. Neither party
shall have any right or authority to assume or create any obligations or to make
any representations or warranties on behalf of the other party whether express
or implied, or to bind the other party in a respect whatsoever.
16.5 Governing law
This Agreement shall be governed by and construed in accordance with the French
Laws. Any dispute arising out of or relating to this Agreement not settled
amicably by the parties shall be submitted exclusively to the Commercial Court
in Paris.
16.6 Choice of Language
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The original of this Agreement has been written in English. Both parties waives
any right it may have under the laws of either party's country to have this
Agreement written in the language of either party's country. Further any
notices given to either party as required by this Agreement shall be written in
the English language.
16.7 Notifications
Any and all notices and other communications whatsoever under this Agreement
shall be in writing, sent by registered mail or by telegram, or facsimile to the
address set forth below.
SOLECTRON France S.A.
Chemin Departemental 109E
Xxxxxxx - X.X0
00000 Xxxxxx Xxxxx
Xxxxxx
VISCORP
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
XXX.
Agreed:
SOLECTRON FRANCE VISCORP
Date:________________________________ Date:______________________________
Name:________________________________ Name:______________________________
Title:_______________________________ Title:_____________________________
Signature: Signature:
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ADDENDUM A
Specifications
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