CONTINUOUS SALES AND PURCHASE AGREEMENT
This Agreement, entered into this 1st day of December, 1996 by and
between Nagano Keiki Seisakusho, Ltd. a corporation duly organized and
existing under the laws of Japan and having its principal office of business
at 0-00-0 Xxxxxxxxxxxxx, Xxxx-xx, Xxxxx, Xxxxx (hereinafter referred to is
"Seller"). and Integrated Sensor Solutions, Inc. a corporation duly organized
and existing under the laws of the State of California, U.S.A. and having its
principal office of business at 000 Xxxxx Xxxx Xxxxxxx, Xxx Xxxx, XX 00000,
X.X.X. (hereinafter referred to as "Buyer").
WITNESSETH THAT:
WHEREAS, Seller has various types of superior pressure sensor products
and desires to establish a firm position and increase its share in the US
market, while Buyer desires import and sell such pressure sensor products in
US markets.
NOW, THEREFORE, it is agreed between the parties as follows:
ARTICLE 1
PRODUCTS
The object product covered by this Agreement refers to the various kinds
of Pressure Sensor related Products, Sub-Assembly and/or Parts manufactured
by Seller which Buyer has requested Seller to sell and which Buyer shall
purchase (hereinafter called "Products").
ARTICLE 2
CONTINUOUS SALES
Seller shall continuously sell Buyer Products manufactured by Seller
under the terms and conditions hereinafter stipulated, provided that each
model of products transacted from time shall be separately specified in
writing by the parties hereto.
ARTICLE 3
TERM AND TERMINATION
This Agreement shall be valid and in force for a period of Five(5) years
commencing from the date appearing at the first above written page upon the
singing of both parties. When either of
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two parties hereto intends to terminate this Agreement, a notice in writing
shall be given to the other party one hundred and twenty(120) days before the
date of expiration of this Agreement. If no notice is given, this Agreement
shall be automatically renewed for a further one(l) year. The same procedure
shall apply for subsequent renewals.
ARTICLE 4
PURCHASE ORDER
Each individual contract under this Agreement shall be subject to this
Agreement but such contract shall be, on the basis of Buyer's purchase order
release, concluded and carried out by Seller's confirmation of sale, the
current version of which is attached hereto as Exhibit 1, which shall set
forth the terms and conditions, and rights and obligations of the parties
hereto except those stipulated in this Agreement, or by such other conditions
as may be notified and added thereto or substituted therefore by Seller and
confirmed by Buyer in writing from time during the life of this Agreement.
ARTICLE 5
PRICE
Price of Products delivered from Seller to Buyer shall be decided upon
in each individual contract or at yearly basis mutually agreed.
ARTICLE 6
PAYMENT
Payment shall be made by Buyer by remitting the invoice amount to the
bank account designated by Seller, against Seller's Commercial Invoice in
Japanese Yen currency, unless otherwise agreed, in full within 60 days after
the date of each commercial invoice. Such contract shall permit partial
shipments and transshipments, and shall provide for any freight increase, war
risk premium, consular fee, etc., to be added in invoice, if necessary.
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ARTICLE 7
SHIPMENT
1. Seller shall manufacture, procure and supply Products to Buyer from
time to time. The delivery terms and conditions for the sale of Products
shall be F.O.B. Japan under the International Commercial Terms (Incoterms) of
the International Chamber of Commerce.
2. As soon as possible after shipment, Seller shall submit Buyer a
shipping advice and shipping documents so as to enable Buyer to be ready for
unloading Products.
ARTICLE 8
PACKING AND MARKING
Packing and marking of Products shall be made in accordance with
Seller's standard export packing procedures. The necessary instructions for
shipping xxxx shall be given by Buyer to Seller at the time of purchase order
release. The country of origin shall be clearly marked on Products and / or
packing.
ARTICLE 9
SPECIFICATIONS AND INSPECTION
All Products to be supplied by Seller to Buyer hereunder shall comply
with the relevant quality specifications established by Seller and approved
by Buyer. Seller shall inspect Products prior to shipment in accordance with
its established quality control procedures.
ARTICLE 10
WARRANTY
Seller warrants that Products are free from any defects of design,
material and workmanship and conform to its specifications. Liability under
this warranty is limited to, at Seller's option, repairing, replacing or
giving credit for the purchase price of portion or part which proves to be
defective, provided that Buyer has given reasonably prompt notice of the
defect and an opportunity of inspection for the defective Products.
ARTICLE 11
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CLAIM
Buyer is entitled to make a survey of quantity and quality of Products
at the port of discharge and to lodge first claim by fax or cable with Seller
as soon as possible, if Buyer finds any defect in Products. Within 90 days
after the arrival of Products at the said port Buyer shall make a formal
claim with supporting documents.
If failing to comply with the above, no claim of Buyer shall be
entertained by Seller. If complied with the above, then Buyer's claim must
be settled by the Seller at the latest within 60 days from the date of
acknowledgment of Buyer's claim.
ARTICLE 12
PATENT
Seller assumes no responsibility for any infringement or unauthorized
use with regard to patent, utility model, trademark, design, copyright or any
other industrial right of a third party. Nothing herein contained shall be
construed to be transfer of any patent, utility model, trademarks, design,
copyright or any other industrial property right contained in Products, and
all such rights are to be reserved to true and lawful owners thereof. In
case any dispute or claim arises in connection with the above right or
rights, Seller is entitled to cancel, and make null and avoid this contract
at its discretion and hold itself free from any liability for dispute or
claim except for the Products or part(s) furnished by the Seller.
The Seller is responsible for any infringement under a certain
reasonable financial limit when the infringement is held or constituted by
the Seller's Product or part(s). This exception does not apply to any
infringement resulting from Seller's compliance with detailed designs or
part(s) provided by Buyer or its customer(s).
ARTICLE 13
CONFIDENTIALITY
Buyer shall keep in confidence all information including technology
relating to Products furnished by Seller, and shall not at any time during
the life of this Agreement or any extension or renewal thereof or for a period
of three (3) years following the termination of this Agreement for any reason
whatsoever, divulge to any person, firm or corporation other than to its own
employees who may require such information in order to perform Buyer's
obligations under this Agreement, any such information without prior written
approval of Seller.
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ARTICLE 14
TERMINATION
Seller is entitled to terminate or cancel this Agreement upon the
occurrence of any of the following events:
(a) In the event Buyer shall fail to perform any of the terms or
conditions contained herein and such failure shall continue to exist for
thirty (30) days after the date of written notice of such failure;
(b) In the event of the insolvency of Buyer or in the event a voluntary
or involuntary petition in bankruptcy is field by, against or on behalf of
Buyer;
(c) In the event Buyer makes a general assignment for the benefit of
its creditors, or a receiver or trustee is appointed for its business or
property; or
(d) In the event Buyer shall fail to perform any of the terms or
conditions contained herein by reason of other than or similar to the above
a), b) and c).
ARTICLE 15
PENDING ORDER
Even after termination of this Agreement by any reason whatsoever, the
provisions of this Agreement shall be applicable to the order placed before
termination, but which is to be performed after such termination.
ARTICLE 16
NOTICES
All notices, summons and communications related to this Agreement shall
be addressed by telex or registered letter, with return receipt requested,
sent or mailed to the other party at its hereinabove set forth address(or any
new address that would be notified in the same way) and in English.
ARTICLE 17
DISPUTE RESOLUTION
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17.1 INFORMAL DISPUTE RESOLUTION. In the event that any dispute,
controversy, or claim between the parties arises out of the interpretation
of, or performance under this Agreement, the parties agree to refrain from
initiating any legal or other proceedings until all of the procedures set
forth in this Article 17 have been exhausted.
17.2 NEGOTIATION. The parties shall first attempt to resolve amicably,
and informally any dispute, controversy, or claim arising out of or relating
to this Agreement, including without limitation the interpretation,
performance, breach, termination or invalidity of this Agreement (the
"Dispute"). A party shall initiate informal negotiations to resolve the
Dispute by giving the other party notice ("Request for Informal Dispute
Resolution") of such intent. The Request for Informal Dispute resolution
shall (1) describe the Dispute and (2) propose the procedure for its amicable
resolution, including, if appropriate, the hiring of consultants. Within
thirty (30) days of the date of such Request for Informal Dispute Resolution,
the parties shall attempt to resolve the Dispute amicably, and no Party shall
resort to any other means of dispute resolution for at least thirty (30) days
after such Request for Informal Dispute Resolution has been delivered.
17.3 MANAGEMENT NEGOTIATION. If any Dispute is not resolved pursuant
to Paragraph 17.2 of this Agreement, each party shall designate one or more
executives (the "Executives") to act on behalf of such party to negotiate to
solve the matter. At the earliest practical time, and in any event, no later
than thirty (30) days after the conclusion of the process set forth in
Paragraph 17.2 of this Agreement, the Executives of both parties shall meet
in a mutually agreeable location to discuss the Dispute. The Executives
shall negotiate in good faith to resolve the Dispute, and any resolution
shall be set forth in writing and signed by both parties. Such resolution
shall be final and binding on the parties.
17.4 ARBITRATION. All disputes, controversies or differences not
settled or by informal negotiations in accordance with Paragraph 17.2 and
17.3 of this Agreement shall be finally settled by arbitration in Tokyo,
Japan in accordance with the UNCITRAL Arbitration Rules as at presence in
force. Any such arbitration shall be administered by the Japan Commercial
Arbitration and Procedural Rules for Arbitration under the UNICITRAL
Arbitration Rules. The appointing authority shall be the Japan Commercial
Arbitration Association. The language(s) to be used in the arbitral
proceedings shall be Japanese or/and English. The award rendered by
arbitrator(s) shall be final and binding upon both parties.
ARTICLE 18
FORCE MAJEURE
In the event of occurrence of an emergency or contingency of a nature
constituting a cause of force majeure to any or all of the parties hereto,
with the result that the performance of any of its or their obligations under
this Agreement is prevented thereby, neither party shall be liable in any way
because of any delay in its performance due to such cause. Under this
Agreement a force majeure is deemed to be any cause beyond the parties'
control, including, but not limited to, strike; lockout; riot; war; accident;
failure or breakdown of components necessary
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to order completion; subcontractor, supplier or customer caused delays;
inability to obtain or substantial rise in the price of labor, materials or
manufacturing facilities; fire; Act of God; curtailment of or failure to
obtain sufficient electrical or other energy; order, whether valid or
invalid, of any cognizant Governmental body or any instrumentality thereof,
whether now existing or hereafter created.
ARTICLE 19
ASSIGNMENT
This Agreement and any of the rights and obligations hereunder shall not
be assigned by either party without a prior written consent of the other
party. In the event an assignment is consented to by the other party, this
Agreement shall inure to the benefit of and be binding upon the successor or
the assignee.
ARTICLE 20
GOVERNING LAW
This Agreement shall be governed as to all matters, including validity,
construction and performance, by and under the laws of Japan.
ARTICLE 21
INVALID OR UNENFORCEABLE PROVISION
Should any provision of this Agreement be invalid or unenforceable, then
such provision shall be given no effect and shall be deemed not to be
included within the terms of this Agreement, but without invalidating any of
the remaining terms of Agreement. The parties hereto shall then endeavor to
replace the invalid or unenforceable provision by a clause which is closest
to the contents of the invalid or unenforceable provision.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officer or representative as of the date
first above written.
Buyer: /s/ M.D. NAIK Seller: /s/ XXXXXXX XXXXXXXXX
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M. D. Naik Xxxxxxx Xxxxxxxxx
President & C.E.O. President
Integrated Sensor Solutions, Inc. Nagano Keiki Seisakusho, Ltd.
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