Confidential treatment has been requested as to portions of this exhibit
**** Indicates portions of text that have been redacted and filed separately
with the Securities and Exchange Commission.
DIVISION PURCHASE AGREEMENT
THIS DIVISION PURCHASE AGREEMENT (the "DPA") is made as of the 30TH day
of October, 1998 (the "Effective Date") by and between Hewlett-Packard Company,
a Delaware Corporation ("HP") and Multilayer Technology, Inc., a California
corporation ("Multek").
RECITALS:
HP and Multek wish to provide for the purchase by HP's Enterprise
Server Group HP-UX Server Manufacturing Business (ESG), an HP division that
manufactures high performance server products, of Printed Circuit Boards (PCBs)
from Multek's manufacturing facility in Boeblingen, Germany, Multilayer
Technology GmbH & Co. KG ("Multek/Europe").
The parties hereto hereby agree as follows:
1.0 DEFINITIONS OF TERMS USED:
The following terms shall have the meanings given for the purposes of
the DPA and any Schedule:
1.1 "DPA" shall have the meaning set forth in the introductory
paragraph of this agreement and includes all Schedules.
1.2 "PPM" shall mean parts per million and is used in the
calculation of Multek/Europe's quality performance to indicate
the amount of projected PCB failures based on one million PCB
units shipped.
1.3 "Engineering Changes" shall mean any electrical or mechanical
changes to the PCBs proposed by HP which would affect, among
other things, the performance, reliability, safety,
serviceability, appearance, dimensions, tolerances or
composition of the PCBs.
1.4 "NRE Costs" shall mean those non-recurring engineering project
development costs identified by Multek/Europe and agreed upon
by HP, whose agreement shall not be unreasonably withheld,
including, but not limited to, test development, manufacturing
process development and all tooling and fixture development
requirements.
1.5 "Specifications" shall mean HP's product drawings, parts list,
bills of materials, and other documentation relating to the
PCBs. The intent of the Specifications is to include all data
necessary for the proper manufacture, packaging and delivery
of the PCBs. HP agrees to provide Multek/Europe with its most
current Specifications and any updates thereto; provided,
however that any changes to the Specifications may only be
made subject to the terms and conditions of the DPA.
1.6 "Schedules" shall mean the schedules and addenda attached
hereto and incorporated herein by reference.
1.7 "Term" shall have the meaning set forth in Section 4.0 of this
DPA.
1.8 "TAM" shall mean ESG's total available market for PCBs,
excluding any prototype PCBs, calculated as ESG's
expenditures, in dollars, to procure PCBs over a one-year
period.
1.9 "CAPEX" shall mean capital equipment expenditures.
1.10 "Review Period" shall mean each of the following three
twelve-month periods: November 1, 1998 - October 31, 1999,
November 1, 1999 - October 31, 2000 and November 1, 2000 -
October 31, 2001.
1.11 "Contract Manufacturer" shall mean any third party company
contracted by HP to perform contract manufacturing services
for HP.
1.12 "TQRDC-E" shall mean technology, quality, responsiveness,
delivery, cost and environmental objectives.
1.13 "Panel" shall mean a production panel of PCBs.
1.14 "Acknowledge", "Acknowledged" or "Acknowledgment" shall refer
to the process by which Multek/Europe will notify ESG that it
is accepting ESGs purchase order for PCBs without any changes
or changes which comply with the terms and conditions of this
DPA.
2.0) ADMINISTRATION AND NOTICES:
This DPA is administered on behalf of HP by HP's ESG. Any notice sent by Multek
or Multek/Europe pursuant to this DPA is to be sent to the HP address specified
in the General Provisions Addendum of this DPA and to the attention of the
appropriate HP designee. Other HP entities may be added with mutual agreement of
both HP and Multek/Europe. This DPA is administered on behalf of Multek by
Multek/Europe. Any notice sent by HP or ESG is to be sent to the Multek address
specified in the General Provisions Addendum of this DPA and to the attention of
the appropriate Multek designee. Other Multek entities may be added with mutual
agreement of both HP and Multek.
3.0) PRODUCT SCOPE:
This Agreement covers the purchase of blank PCBs. A complete list
of these components and their price(s) are provided in the
attached Addendum IV. Additional components may be added to this
Agreement by an amendment, upon the mutual written agreement of
both HP and Multek/Europe.
4.0) TERM:
Unless earlier terminated pursuant to Section 20, this DPA will
be a (TERM) Agreement with an initial term of three years
commencing November 1, 1998 and ending October 31, 2001 the
"Initial Term"). This DPA may be renewed for additional one year
extensions (each a "Renewal Term") upon written agreement of the
parties. The parties agree to meet no less than sixty days prior
to the expiration of the Initial Term to consider the first
Renewal Term. Subsequently, both parties shall meet at least
sixty days prior to the expiration of any Renewal Term to
consider additional Renewal Terms. If the parties have not agreed
in writing to renew the DPA prior to the expiration of the
Initial Term or any subsequent Renewal Term then the DPA shall
terminate.
5.0) ****REDACTED****
5.1)****REDACTED****
5.2)****REDACTED****
6.0) LOCATION OF OPERATIONS:
6.1) Multek/Europe commits to continuing to supply HP during the duration
of this DPA from Boeblingen unless mutually agreed upon in writing by
HP and Multek/Europe. If Multek or Multek/Europe initiates a request
to qualify an additional Multek location to supply ESG with PCBs
pursuant to this DPA then Multek shall pay any associated
qualification costs unless otherwise mutually agreed to by
Multek/Europe and HP.
6.2) A minimum of twelve (12) months advance notice will be provided by
Multek/Europe to HP if any production is to be discontinued from
Multek/Europe, or any other Multek Facility which is supplying PCBs to
ESG pursuant to this DPA, unless mutually agreed to by Multek/Europe
and HP.
7.0 ) LEAD-TIME AND FLEXIBILITY:
7.1) Multek/Europe's lead-time between Acknowledgment of a purchase order
for PCBs and the shipment date for the PCBs (the "Lead-time") will be
five weeks with a long-term goal of reducing the Lead-time to four
weeks. Lead-times are subject to the Performance Measures as outlined
in Addendum V.
7.2) ****REDACTED****
7.3) Multek/Europe will allocate **** to ESG (the "Allocation"). Subject to
Section 7.4 below, Multek/Europe shall not be obligated to satisfy the
five-week Lead-time requirement for any portion of a purchase order
that is in excess of the Allocation and such failure to satisfy the
Lead-time requirement will not be included in the calculation of
Multek/Europe's performance pursuant to Addendum V.
7.4) ESG may submit increases to existing purchase orders which would be in
excess of the Allocation as follows:
i) 3 weeks prior to the requested delivery date - no flexibility
ii) weeks prior to the requested delivery date - increase by ****
iii) or more weeks prior to the requested delivery date - increase by ****
7.5) ESG's forecast for PCBs and the Allocation will be reviewed on a
monthly basis or at any other time that Multek/Europe or ESG is aware
that ESG's demand will not meet or will exceed the Allocation. ESG
acknowledges and agrees that any Allocation that it does not use in a
Lead-time period will be lost. If ESG consistently fails to use the
Allocation and the order forecast supports the order trend, then the
parties will agree to meet to adjust the Allocation to reflect the
business trend. If ESG's ongoing demand for a current PCB exceeds the
Allocation and if Multek/Europe cannot meet ESG's demand,
Multek/Europe will pay for all costs to qualify another Multek
manufacturing facility. Qualification costs will be limited to NRE,
tooling costs and any unrecoverable material as outlined in Addendum
VI.
8.0) DELIVERY:
8.1) General Orders. Multek/Europe will use their best efforts to satisfy
all delivery dates as identified in ESG's purchase order as
Acknowledged and as further set forth in the On Time Delivery
provisions of Addendum V. Multek/Europe will notify HP if any order
will be greater than five days late and HP may elect to reschedule
such purchase order as further set forth in Section 19 of this DPA.
8.2) ****REDACTED****
8.3) Prototype Orders. Multek/Europe agrees to pay HP's direct costs
arising from its inability to use the prototype assembly services
which it schedules with its Contract Manufacturers due to
Multek/Europe's shipment of prototype PCBs more than two days after
the originally Acknowledged delivery date. These costs will be the
actual amount billed HP by the Contract Manufacturer up to ****. HP
will provide Multek/Europe copies of invoices or charges from its
Contract Manufacturers upon Multek/Europe's request.
9.0) PRICING:
9.1) ****REDACTED****
9.2) ****REDACTED****
9.3) ****REDACTED****
9.4) All PCB prices will be in U.S. Dollars.
10.0) PAYMENT TERMS:
10.1) All payments will be made in U.S. Dollars
10.2)Payment terms are net 35 from date of invoice provided that the PCBs
reflected on the invoice have been received by HP or HP's Contract
Manufacturer.
11.0) TECHNOLOGY:
11.1)Multek/Europe and HP will collaborate on the preparation of, and
updates to, a technology roadmap for the continued technical
development of the PCBs (the "Technology Roadmap"). The Technology
Roadmap shall be similar to the Technology Roadmap format being used
by HP prior to the sale of the PRCO to Multek. **** The measure of
Multek/Europe's commitment will be based on an evaluation of staffed
engineering projects and timely CAPEX commitments. HP will have the
right to audit Multek/Europe's performance under the Technology
Roadmap.
11.2)If HP requests a unique CAPEX investment in a technology that may not
be useful for Multek/Europe's non-ESG customers, then Multek/Europe
may request a financial commitment from HP for the required CAPEX
investments. Multek/Europe understands and agrees that HP must agree
in writing to these requests prior to initiating resources or
financial commitments. HP acknowledges and agrees that Multek/Europe
will not be required to make any CAPEX investments pursuant to this
Section 11.2 if HP requests such investments and does not agree to pay
for all or a portion of those commitments.
12.0) QUALITY:
12.1)Multek/Europe's manufacturing output quality will be based evaluated
based upon the PPM levels and other performance measures set forth in
Addendum V.
12.2)Quality Program. Multek/Europe shall institute and maintain a quality
program substantially in accordance with the quality program
requirements outlined in Addendum III.
13.0) TQRDC REVIEWS:
13.1)HP and Multek/Europe agree to work together to achieve the
technology, quality, responsiveness, delivery, and cost (TQRDC-E)
targets. Both parties shall meet every six months to review the
progress made on the stated TQRDC-E objectives.
Technology:
Quality:
Responsiveness:
Delivery:
Cost:
Environment:
13.2)Multek/Europe and HP will establish performance goals and review
dates for continuous improvement. Existing performance and goals are
outlined in Addendum V.
14.0) SHIPMENT AND DELIVERY:
14.1)Shipments should be Delivered Duty Unpaid (DDU). Multek/Europe will
fulfill their obligation of shipments when the goods have been made
available at the named place in the country of importation. HP shall
retain Country of Origin Duty Drawback rights.
14.2)Multek/Europe agrees to pay for any premium freight charges if
Multek/Europe cannot meet HP's shipment date.
14.3)HP agrees to pay for any premium freight charges resulting from HP's
expedite or HP's request to deviate from Multek/Europe standard
carriers
14.4)Responsibility For Loss. Multek/Europe shall be liable for any loss
or damage due to its failure to properly preserve, package, handle, or
pack Multek/Europe's PCBs. HP shall not be required to assert any
claims for such loss or damage against the common carrier involved.
Further, HP shall not be liable for any loss or damage due to a
release of chemicals or other hazardous materials to the environment
prior to Multek/Europe's delivery of the PCBs at the named place in
the country of importation.
15.0 ) WARRANTY:
15.1)Warranty. Subject to the limitations set forth in Section 15.2 below,
Multek/Europe shall warrant to HP that all PCBs manufactured by
Multek/Europe will conform to the Specifications and be free from
defects in workmanship under normal use and service for a period of
one year from the date of manufacture by Multek/Europe.
Multek/Europe's obligation under this warranty shall be exclusive to
HP and HP's Contract Manufacturers and shall survive any inspection,
delivery, acceptance, or payment by HP or HP's Contract Manufacturer.
15.2)****REDACTED****
15.3)Epidemic Failure Warranty and Product Recall. In addition to the
warranties specified in Sections 15.1 and 15.2, Multek/Europe shall
warrant all Multek/Europe supplied PCBs sold to HP or HP's Contract
Manufacturer, against epidemic failure for a period of **** after date
of manufacture by Multek/Europe. ****
15.4)This warranty shall not apply to any PCBs which shall have been
repaired except by Multek/Europe or which shall have been subject to
misuse, negligence or accident. A prior written authorization must be
obtained from Multek/Europe as further set forth in Section 17.2 below
before any items can be returned to Multek/Europe pursuant to a
warranty claim.
15.5)****REDACTED****
15.5)1.****REDACTED****
15.5)2.****REDACTED****
15.5)3.****REDACTED****
15.5)4. HP represents and warrants to Multek/Europe that to the Best of its
Knowledge the amount of defective PCBs for which Multek/Europe is
assuming the warranty obligations set forth in this Section 15.5 is
not material in scope or amount.
15.6)THE WARRANTIES SET FORTH IN THIS SECTION 15 ARE IN LIEU OF ALL OTHER
WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE AND
FOR ALL OTHER OBLIGATIONS OR LIABILITIES ON MULTEK/EUROPE'S PART.
16.0) THIS SECTION DELIBERATELY OMITTED
17.0) REMEDY:
17.1)****REDACTED****
17.2)****REDACTED****
18.0) PROCESS AND DESIGN CHANGES:
18.1)Multek/Europe shall not effect the process or material changes
specified in Addendum X.
18.2)HP may make Engineering Changes to the PCBs as required during the
Term of the DPA by giving Multek/Europe prior written notification.
Any changes requested with respect to a PCB design within the
Lead-time for delivery of PCBs by Multek/Europe pursuant to an
Acknowledged purchase order will require Multek/Europe's prior written
approval. The parties will negotiate a new delivery date for any
purchase orders which have been accepted and for which the
manufacturing time will be delayed due to an Engineering Change.
18.3)****REDACTED****
18.4)If an Engineering Change is initiated by Multek/Europe, Multek/Europe
will provide qualification PCBs to HP at no cost to HP.
18.5)****REDACTED****
19.0) PURCHASE ORDER CHANGES:
19.1)Any purchase orders that are within two weeks of the delivery date
are firm and cannot be rescheduled by HP or ESG without the prior
written consent of Multek/Europe. HP may without charge, reschedule
the delivery date of all other purchase orders for a period of up to
30 calendar days.
19.2)****REDACTED****
20.0) DEFAULT:
20.1)Notice of Breach. If either party materially breaches any provision
of this Agreement, the other party may, by notice to the breaching
party, and except as otherwise prohibited by the United Sates
bankruptcy laws, terminate the whole or any part of this DPA or any
purchase order, unless the breaching party cures the breach within
fifteen business days after receipt of the notice of breach.
20.2)Causes of Breach. For purpose of Section 20.1 above, the term
"breach" shall include without limitation any:
(a) Proceeding, whether voluntary or involuntary, in bankruptcy or
insolvency by or against the party;
(b) Appointment, with or without the party's consent, of a receiver or an
assignee for the benefit of creditors;
(c) In the case of Multek/Europe, Multek/Europe's material failure to
deliver PCBs in accordance with the requirements of this DPA or any
purchase order;
(d) In the case of Multek/Europe, Multek/Europe's material failure to
replace, rework, or credit non-complying PCBs in a timely manner as
required in Section 17.0 above; and/or
(e) In the case of either party, the failure to comply with any material
provision of this Agreement and with the additional failure to provide
the non-breaching party, upon request, with reasonable assurances of
future performance.
20.3)HP's Rights Upon Breach. In the event HP terminates this Agreement in
whole or in part as provided in Section 20.2 above, HP may procure
upon such terms and in such manner as HP reasonable deems appropriate,
PCBs from another source as to which this Agreement is terminated.
Multek/Europe shall reimburse HP upon request for all additional costs
incurred by HP in purchasing from a second source. Multek/Europe shall
continue the performance of this Agreement to the extent not
terminated under the provisions of this Article 23.
20.4)Notwithstanding anything to the contrary set forth in this DPA,
Multek/Europe's obligations to perform under this DPA shall be
suspended at any time that it is unable to perform due to HP's failure
to adequately perform its obligations under the Transition Services
Agreement between Multek/Europe and HP, dated of even date herewith.
21.0) INDEMNITY:
21.1)Each party (the "indemnifying party") shall indemnify and hold
harmless the other party (the "indemnified party") against all
expenses, losses, reasonable attorney's fees, costs, damages or
liabilities arising out of or in connection with any claims or actions
for defects of PCBs where the alleged defect relates to (i) design,
labeling or manufacture in accordance with the specification supplied
by the indemnifying party, or (ii) any alteration, or modification, of
PCBs made by the indemnifying party without the prior approval of the
indemnified party. At the request of the indemnified party, the
indemnifying party shall defend at its own expense all such claims or
actions, provided that the indemnified party shall party shall be
entitled, at its election to participate in such defense.
Notwithstanding anything to the contrary herein, Multek/Europe shall
not be obligated to indemnify HP with respect to any design, labeling
or manufacture in accordance with any specification which
Multek/Europe acquired from HP pursuant to the Master Asset Purchase
Agreement between the parties of even date herewith.
21.2)Duty to Notify. Each party shall give the other party prompt notice of
any infringement action, and shall give the indemnifying party the
authority, information, and assistance (at the indemnifying party's
expense) to handle the defense of the infringement action. The
indemnifying party shall pay all damages and costs awarded in any
infringement action against the indemnified party or its its
customers. If the use of any products or Specifications provided
hereunder is enjoined (the "Infringing Product or Specifications"),
the indemnifying party shall, at its sole expense and option, and the
indemnified party's sole remedy shall be that the indemnifying party
shall:
(a) Procure for the indemnified party and its customers the
right to continue using the Infringing Products or
Specifications;
(b) Replace the Infringing Product or Specifications with a
non-infringing product of equivalent function and
performance; or
(c) Modify the Infringing Product or Specifications to be
non-infringing, without detracting from function or
performance.
22.0) SCHEDULES ATTACHED:
The following Schedules are hereby made a part of this DPA:
Addendum I General Provisions Exhibit
Addendum II Confidentiality Agreement
Addendum III Multek/Europe Quality Systems Requirements
Addendum IV Part Description, Quantities, and Price
Addendum V ****
Addendum VI ****
Addendum VII ****
Addendum VIII ****
Addendum IX ****
Addendum X ****
Addendum XI ****
By signing and dating this document, the parties below indicate their agreement
with and acceptance of this Division Purchase Agreement, including all
Schedules.
Multilayer Technology, Inc. Hewlett-Packard Company
/s/ Xxxxx Xxxxxxx /s/ Xxx Xxxxxx
-------------------------------- ------------------------------
By: Xxxxx Xxxxxxx By: Xxx Xxxxxx
Title: President, Multek Manager, Corporate Development
Date: October 30, 1998 Date: October 30, 1998
ADDENDUM I
General Provisions Addendum
A. Order of Precedence. In the event of any conflict between the terms and
conditions of any other document or agreement, the terms and conditions
of this DPA shall take precedence over the terms and conditions. In the
event of any conflict between the provisions of the DPA and any PO or
Schedule, the order of precedence shall be:
1. Addendum's to this DPA
2. this DPA
3. any instructions in a written or electronic purchase order
B. Entire Agreement and Modifications. This DPA comprises the entire
understanding between the parties with respect to the subject matter
hereof and supersedes any previous communications, representations, or
agreements, whether oral or written. General terms and conditions of
either Party which conflict with this DPA are expressly excluded hereby
and shall not apply. No modification of this DPA and/or any Addendum
hereof shall be binding on either Party unless executed in writing and
signed by an authorized representative of each Party.
C) Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered
when delivered personally or five (5) days after being sent, when sent
by registered or certified mail, or one (1) day after being sent, when
sent by overnight private courier, addressed as follows:
If to Multek/Europe:
TO:
President of Multek
00 Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
COPY TO:
Executive Vice President DII Group
And
Managing Director, Multek/Europe
IF to HP:
TO:
Materials Manager
0000 Xxxxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
COPY TO:
Purchasing Manager
Hewlett-Packard
0000 Xxxxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Or to such other address as such party may indicate by a notice delivered to the
other party hereto. Either party may change its address for purposes of notice
by notice given to the other party.
D) Assignment. Neither party may delegate, assign or transfer its right or
obligations under this DPA, in whole or in part, to any third party, unless
the other Party has given its prior written approval. Any such attempted
delegations or assignment shall be void. ****
E) Statutory Requirements. Multek/Europe agrees to comply with all local and
foreign laws, rules and regulations applicable to its obligations under
this DPA and in relation to its manufacture or its use of the PCBs and to
its delivery of the PCBs to HP at the named place in the country of
importation and agrees to indemnify HP against all loss or damage arising
from any breach of this condition.
F) Force Majeure. Except for payments due hereunder, neither party will be
liable for any failure or delay in its performance under this DPA due to
causes including, but not limited to, an act of God, an act of civil or
military authority, fire, epidemic, flood, earthquake, riot, war, sabotage,
labor dispute, and governmental action, which are beyond its reasonable
control; provided, that, the delayed party: (i) promptly gives the other
party written notice of such cause and, in any event, within fifteen (15)
calendar days of discovery thereof; and (ii) uses diligent efforts to
correct such failure or delay in its performance.
G) Governing Law. This DPA shall be governed by and construed in accordance
with the laws of the United States of America and the State of California.
H) Survival of Provisions. Upon the expiration or termination of this DPA, the
terms and condition contained herein shall apply to all purchase orders
previously transmitted to Multek/Europe and to all PCBs shipped by
Multek/Europe thereunder. Notwithstanding the expiration or early
termination of this DPA, the provisions regarding Warranties and Product
Recall in Section 15, Remedy in Section 17 and Infringement Indemnity in
Section 21 shall each survive in accordance with their terms.
I) LIMITATION OF LIABILITY.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE
FOR ANY INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT
LIMITED TO LOSS OF PROFITS) ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT OR
IN FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF
WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL
THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
J) Confidentiality. For the purposes of this DPA, all Confidential Information
shall be enforced as specified in Addendum II.
K) Dispute Resolution.
(a) Each party agrees to negotiate in good faith to promptly resolve any
dispute regarding the terms and conditions specified in the DPA.
(b) If the negotiations do not produce prompt or mutually satisfactory results,
the matter will be deferred to the Officers of Multek/Europe and the ESG
Materials Manager, who will then attempt in good faith to promptly resolve
the dispute.
(c) If the Multek/Europe Officers and the HP Materials Manager are unable to
resolve the dispute, each party agrees to the ruling of a third party
arbitrator. The arbitrator will be mutually agreed upon by Multek/Europe
and HP.
ADDENDUM II
NEW CONFIDENTIAL DISCLOSURE AGREEMENT
[DPA]
This New Confidential Disclosure Agreement is entered into and
effective as of the 30th day of October, 1998 by and among Hewlett-Packard
Company, a Delaware corporation ("HP") and Multilayer Technology, Inc., a
California corporation ("Multek").
RECITALS
WHEREAS, HP and Multek, of the date hereof, have entered into a
Division Purchase Agreement pursuant to which HP shall purchase from Multek
certain printed circuit boards (the "DPA").
WHEREAS, in order to effect the transactions contemplated by the DPA,
HP and Multek may provide one another with certain confidential information.
WHEREAS, HP and Multek desire to keep confidential, as provided herein,
the terms and conditions of the DPA and certain information disclosed by or to
each of them pursuant to the DPA.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, HP and Multek agree as follows:
1. General Obligation. Each party which receives Confidential
Information (as defined herein) (the "Recipient") agrees that it shall treat
such information in strict confidence and, except as permitted or required in
carrying out the terms of the DPA or as required by law, it shall not use or
disclose such information, either during the term of the DPA or thereafter,
without the prior written approval of the party who originally disclosed such
Confidential Information (the "Disclosing Party"). Without limiting the
foregoing, the Recipient shall use at least the same procedures and degree of
care which it uses to prevent the disclosure of its own confidential information
of like importance to prevent the disclosure of Confidential Information
disclosed to it by the Disclosing Party, but in no event less than reasonable
care.
2. Confidential Information. For purposes of this Agreement,
"Confidential Information" shall mean any information disclosed by one party to
the other in connection with activities under the DPA, including but not limited
to technical, engineering, product and financial information; provided, that
information will be "Confidential Information" only if it is marked as
confidential at the time of disclosure or, if the material is not in written
form (e.g., orally disclosed), it is treated as confidential at the time of
disclosure and is designated as confidential in a written memorandum sent to the
recipient within thirty days of disclosure, summarizing the confidential
information sufficiently for identification.
3. Exceptions. The above obligations of non-disclosure and non-use
shall not apply to information which (i) was in the public domain at the time it
was communicated to the Recipient by the Disclosing Party, (ii) entered the
public domain subsequent to the time it was communicated to the Recipient by the
Disclosing Party through no fault of the Recipient, (iii) was rightfully
communicated to the Recipient free of any obligation of confidence subsequent to
the time it was communicated to the Recipient by the Disclosing Party, (iv) was
independently developed by employees or agents of the Recipient who had no
knowledge of any Confidential Information communicated to the Recipient by the
Disclosing Party, or (v) was communicated in response to a the order or
requirement of a court, administrative agency or other governmental body;
provided, that the Recipient shall provide prompt, advanced notice thereof to
enable the Disclosing Party to seek a protective order or otherwise prevent such
disclosure.
4. Authorization: No Representation of Accuracy. Each Disclosing Party
warrants that it has the right to provide to the Recipient any Confidential
Information so disclosed to the Recipient under this Agreement. Each party
understands and acknowledges that, neither party nor any of its representatives
or affiliates makes herein any representation or warranty, express or implied,
as to the accuracy or completeness of the Confidential Information made
available by it or to it. Each party agrees that neither party nor any of its
representatives or affiliates shall have any liability hereunder to the other
party or to any of its representatives or affiliates relating to or resulting
from the use of such other party's Confidential Information (other than for a
use of such Confidential Information in violation of this Agreement) or any
errors therein or omissions therefrom. UNLESS SPECIFICALLY PROVIDED OTHERWISE
HEREIN,NO OTHER WARRANTIES ARE MADE BY ANY PARTY UNDER THIS AGREEMENT.
ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED "AS IS."
5. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE, FOR BREACH OF OR FAILURE TO PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT AND EVEN IF ANY LIMITED REMEDY PROVIDED HEREIN FAILS TO
ACHIEVE ITS ESSENTIAL PURPOSE.
6. Government Regulations. Subject to applicable law, Recipient shall
adhere to the U.S. Export Administration Laws and Regulations and shall not
export or reexport any technical data to any proscribed country listed in the
U.S. Export Administration Regulations unless properly authorized by the U.S.
Government.
7. Waiver. No failure or delay by either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, and no single or
partial exercise thereof shall preclude any other or future exercise thereof or
the exercise of any other right, power or privilege hereunder.
8. Miscellaneous
(a) Each party shall be responsible for any breach of this Agreement by
any of its representatives or affiliates.
(b) This Agreement contains the entire understanding of the parties hereto
with regard to the subject matter contained herein and supersedes all
prior agreements and understandings or memoranda of understanding
between or among any of the parties hereto.
(c) In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions of the Agreement shall not in any way be affected
or impaired thereby.
(d) This Agreement shall enure to the benefit of and shall be binding on
and enforceable by the parties and their respective successors and
permitted assigns. Neither party may assign any of its rights or
obligations hereunder without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed .
(e) No failure or delay by either party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, and no single
or partial exercise thereof shall preclude any other or future
exercise thereof or the exercise of any other right, power or
privilege hereunder.
(f) This Agreement shall be governed by and construed in accordance with
the laws of California without giving effect to choice of law
doctrines.
IN WITNESS WHEREOF, the parties have executed this New Confidential
Disclosure Agreement as of the date first written above.
HEWLETT-PACKARD COMPANY
/s/ Xxx Xxxxxx
--------------------------
By: Xxx Xxxxxx
Title:Manager, Corporate Development
MULTILAYER TECHNOLOGY, INC.
/s/ Xxxxxx X. Xxxxxxx
October 30, 1998 --------------------------
By: Xxxxxx X. Xxxxxxx
Title: President
ADDENDUM III
Multek/Europe Quality Systems Requirements
HEWLETT-PACKARD MULTEK/EUROPE QUALITY SYSTEMS REQUIREMENTS
0000-0000-0 Rev C. October 1, 1994
ARTICLE 1.
PURPOSE
This exhibit defines the requirements for a quality system that must be
maintained by a Multek/Europe of Products to Hewlett-Packard Company (HP)
ARTICLE 2.
REFERENCES
2.1 ****REDACTED****
2.2 ****REDACTED****
2.3 ****REDACTED****
2.4 ****REDACTED****
ARTICLE 3.
DEFINITIONS
For the purposes of this exhibit, the definitions given in **** apply.
ARTICLE 4.
SCOPE
This exhibit is applicable to all products supplied to HP including the
processes and procedures necessary to produce and support those products. These
requirements are in addition to those included in the applicable drawings,
specifications and other contractual documents.
QUALITY SYSTEM REQUIREMENTS
5.1 Multek/Europe shall meet or exceed the requirements for Management
responsibility, Quality system, Contract review, Design control, Document
control, Purchasing, Purchaser supplied product, Product identification and
traceability, Process control, Inspection and testing, Inspection measuring
and test equipment, Inspection and test status, Control of non-conforming
product, Corrective Action, Handling storage packing and delivery, Quality
records, Internal quality audits, Training, Servicing, and Statistical
Techniques, as stated by ****.
Additionally, Multek/Europe shall:
5.2 Develop a documented quality plan establishing product and process goals
and action plans for continuous quality improvement.
5.3 Identify the critical processes and parameters, and monitor each for
conditions of "statistical control" and process capability.
5.4 Implement a company-wide continuous improvement program focusing on
customer satisfaction, teamwork, universal participation and driven by
data.
5.5 ****REDACTED****
5.6 ****REDACTED****
5.7 ****REDACTED****
ADDENDUM IV
****REDACTED**** (2 pages)
ADDENDUM V
****REDACTED**** (7 pages)
ADDENDUM VI
****REDACTED**** (29 pages)
ADDENDUM V II
****TABLE REDACTED****
[GRAPHIC OMITTED]
ADDENDUM VIII
****REDACTED****
Year 2000:
Multek/Europe agrees to work in good faith to assure all internal systems will
be year 2000 compliant so as not to affect assurance of supply to TMO HP.
Progress toward compliance will be reviewed during the quarterly business review
meetings, lead by the ESG team as agreed to in the ESG DPA. These reviews will
cease once both HP and Multek/Europe agree that compliance has been met.
APPROVED, AGREED TO AND EFFECTIVE AS OF THE 30th DAY OF October, 1998.
MULTILAYER TECHNOLOGY, INC HEWLETT-PACKARD COMPANY
/s/ Xxxxx Xxxxxxx /s/ Xxx Xxxxxx
------------------------------- -------------------------------
BY:Xxxxx Xxxxxxx BY:Xxx Xxxxxx
TITLE: President, Multek Manager, Corporate Development
DATE: October 30, 1998 DATE: October 30, 1998
****TABLE REDACTED****
ADDENDUM IX
****REDACTED**** (3 pages)
ADDENDUM X
****REDACTED****
ADDENDUM XI
PROTOTYPE PRICING
