EXHIBIT 10.11
INSTRUMENTS SA, INC. AND GROUP TECHNOLOGIES, INC.
OEM PURCHASE AGREEMENT
This agreement is made and entered on 11 day of December 1996, by and
between Instruments SA, Inc., a Delaware Corporation, located at 0000 Xxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000 (hereafter called the COMPANY or ISA) and Group
Technologies Corporation located at 00000 Xxxxxxx XxXxxxxx Xxxxx, Xxxxx, Xxxxxxx
00000 (hereafter called the BUYER or G.T.C.)
RECITALS
Whereas, BUYER wishes to purchase and COMPANY desires to sell Products as
defined on Appendix A of this Agreement; and
Whereas, Buyer has previously issued Purchase Order #560000445 ("Purchase
Order") to COMPANY and COMPANY has previously issued an Acknowledgment for same
("Acknowledgment"); and
Whereas, the parties desire to amend the term and conditions of the
Purchase Order and Acknowledgment.
Now therefore the parties agree as follows:
1. Term of Agreement
BUYER agrees to purchase and COMPANY agrees to sell the Products listed in
Appendix A which is attached hereto and incorporated herein. This
agreement shall cover and is limited to the 298 units of Product ordered by
the BUYER in the above-referenced Purchase Order.
2. Governing Terms and Conditions
This Agreement sets forth the terms and conditions applicable to any and
all purchase orders issued during the term of this Agreement, including but
not limited to that certain Purchase Order 560000445, irrespective of
whether this Agreement is referenced by the purchase order. In the event
of any conflict between the terms of this Agreement and the terms of any
purchase order, acknowledgment or other document issued, this agreement
will take precedence.
3. Purchase Order
BUYER and COMPANY mutually agree and acknowledge that the Purchase Order
referenced hereunder can not be canceled nor may the product be returned
for restocking, except as may be provided in Sections 11, 12 and 13.
Notwithstanding any of the foregoing, the parties mutually agree that
delivery of units delineated on the Purchase Order may be rescheduled in
accordance with the following:
[CAPTION]
Number of Days Notice Percent to be Rescheduled
--------------------- -------------------------
0 - 30 0%
31 - 60 10%
61 - 90 25%
91 - 120 50%
Beyond 120 100%
Any changes to the purchase order must be mutually agreed to. The BUYER
will provide, on a monthly basis, a copy of IBM's forecast and BUYER's open
order report delineating the delivery schedule for all open orders.
COMPANY will review this report and fax back acceptance to BUYER within 7
business days.
4. Purchase Price
BUYER further agrees to purchase and COMPANY agrees to sell the Product at
the prices delineated on po#560000445. BUYER asserts products are for
resale.
5. Safety Stock
ISA (U.S.) and Instruments SA (FRANCE) will each stock 5 units as finished
goods for this order. The quantity available for delivery will depend on
BUYER's usage rate. If BUYER's usage rate remains at 30 units/month,
COMPANY will need 60 days to replenish the stock.
6. Delivery Schedule
The lead time for the products described in Appendix A is 120 days. This
lead time assumes a usage rate of less than 15 units per month. The lead
time for quantities > 15 per month may require longer than 120 days
7. TERMS of PAYMENT
Payment shall be made in full within 30 days from date of COMPANY'S
invoice. A monthly service charge of 1.5% may be added to balances
extending beyond 60 days. The COMPANY maintains the right to withhold
shipment of additional goods if the BUYER has payables extending beyond 30
days. This does not relieve BUYER of its responsibility to purchase units
as specified on the purchase order and this agreement.
8. Title
BUYER shall be liable for payment of purchase price of goods covered by
this agreement as soon as they have been delivered by the COMPANY to
carrier. However, title to such goods shall remain with the COMPANY until
price specified has been paid.
9. Delivery
Risk of Loss. Delivery shall be F.O.B. Edison, NJ. All delivery and
handling charges shall be paid for by BUYER. BUYER shall bear the risk of
loss upon COMPANY'S delivery of goods to the carrier. If due to COMPANY's
failure, delivery cannot be made at the agreed time, by the specified
method of transportation, COMPANY will at no additional cost to BUYER, use
other expedient means to affect delivery.
Delivery Schedule. COMPANY agrees to deliver the Product in accordance with
the delivery schedule delineated on the Purchase Order 560000445 or as the
parties may mutually agree in writing. BUYER and COMPANY also agree that
BUYER may reschedule delivery of the Product in accordance with Section 3.
Notwithstanding any of the foregoing, BUYER agrees and acknowledges that it
will take delivery for all units on the Purchase Order on or before
September 1, 1997.
10. Warranty
The COMPANY warrants for a period of 14 months beginning at date of
delivery to BUYER of the device that all components manufactured and
delivered by the COMPANY will be free of manufacturing defect in materials
and workmanship. ISA will, at no additional expense to BUYER, make every
reasonable effort to repair or replace within 45 days, those components
found with manufacturing defect in materials and workmanship.
This warranty shall not apply to any COMPANY manufactured components that
have been repaired or altered by anyone not authorized by the COMPANY in
writing. The warranty shall not apply to any components subjected to
misuse due to negligence, adverse environmental conditions, or accident,
nor to any components which are not operated in accordance with good
optical and engineering practice. Time, materials, and expenses shall be
billed to the BUYER at the rates then in effect for non-contract customers
or any repairs or replacements not covered by this warranty. All defective
items replaced pursuant to the above warranty become the property of the
company.
THIS WARRANTY IS GIVEN EXPRESSLY IN LIEU OF ALL WARRANTIES OF
MERCHANTABILITY, FITNESS FOR PURPOSE, OR OTHER WARRANTIES, EXPRESS OR
IMPLIED. CORRECTION OF NON CONFORMITIES, IN THE MANNER AND FOR THE PERIOD
OF TIME PROVIDED ABOVE, SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF
COMPANY WHETHER BASED ON CONTRACT, NEGLIGENCE OR OTHERWISE WITH RESPECT TO,
OR ARISING OUT OF SUCH SYSTEM. THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE
AND THE COMPANY SHALL NOT BE LIABLE FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES.
11. Force Majuere
The COMPANY will use every reasonable effort to affect shipment on or
before the date requested. The COMPANY shall not be liable for delay in
performance or inability to perform occasioned by any unforeseen
conditions, including but not limited to, strike, embargo, government
regulation or inability to obtain materials. If performance by the COMPANY
is delayed by reason thereof, it shall notify the BUYER promptly and in
writing of the force majuere event, the expected duration of such inability
to perform, and of any developments that appear likely to affect the
ability of COMPANY to perform any of its obligations hereunder in whole or
in part. Time and performance shall be extended for the period of such
contingency. If the period of nonperformance exceeds 60 days from the date
of delivery of the last shipment, BUYER may terminate this agreement
without penalty by giving written notice to COMPANY.
12. Remedies of Buyer-With Cause
The BUYER may cancel this agreement and or defer shipment of product upon
30 days advance written notice to COMPANY, if the COMPANY has materially
breached this agreement and failed to cure such nonperformance within 30
days after the written notice is received or such additional cure period as
the BUYER may authorize in writing. Any money paid in advance by the BUYER
to the COMPANY for goods not shipped will be reimbursed. The foregoing
shall be the exclusive remedy of BUYER for any breach of this agreement by
the COMPANY.
13. Remedies of Company-With Cause
If the BUYER fails to pay the price as it becomes due or wrongfully rejects
the merchandise as per Section 15 hereunder, then the COMPANY shall give
written notice to BUYER of non-performance. If BUYER fails to cure such
non-performance within 30 days after the written notice is received (or
such additional cure period as the COMPANY may authorize in writing), the
COMPANY, without notice may (i) defer shipment hereunder until such breach
or repudiation is removed and/or(ii) cancel any undelivered portion of this
Agreement, provided however that BUYER shall not be liable for the purchase
price of any undelivered portion of the Purchase Order which COMPANY
cancels pursuant to this provision. Notwithstanding any of the foregoing,
BUYER'S potential total liability for any damages which COMPANY may incur
as a result of any asserted breach or non-performance shall not, in any
case, exceed the purchase price of the units specified in the Purchase
Order. In the event the COMPANY shall retain counsel to enforce any of the
terms hereof, and prevail, the BUYER shall pay the COMPANY all costs of
enforcement of the successfully asserted claim(s), including attorney's
fees, court costs and expert witnesses. The foregoing constitutes
COMPANY's sole remedy for any single or multiple assertions of any breach
of this agreement.
14. Copying or Replicating Products
The products sold may not be copied or replicated. The BUYER shall be
liable for all damages including loss of anticipatory profits incurred by
the COMPANY as a result of its conduct.
15. Inspection and Acceptance
All delivered items will be subject to inspection and acceptance by BUYER
at BUYER's plant notwithstanding any prior payment. Within thirty (30)
days of receipt of any product specified within this agreement, BUYER shall
notify COMPANY of any products that do not meet the specifications outlined
in this agreement. Upon notification, COMPANY shall provide BUYER with a
return authorization number to be used by the BUYER to return the rejected
item to COMPANY at COMPANY's expense, for correction or replacement. All
products rejected for failure to meet the specifications as outlined in
this agreement will be charged back at full billing price plus the cost of
inbound freight. Excluded for charge back will be unpaid inbound freight
and handling costs, and products damaged due to shipment, misuse or
misapplication.
16. Patent, Copyrights & Mask work rights
COMPANY shall defend, at its own expense, any suit or claim that may be
instituted against BUYER or any customer of BUYER for alleged infringement
of patents, copyrights or mask work rights relating to the maintenance,
sale, or use of the Goods, except for any such infringement resulting from
COMPANY's compliance with detailed designs provided by BUYER, and COMPANY
shall indemnify BUYER and its customers for all costs and damage arising
out of such alleged infringement. BUYER shall promptly notify COMPANY in
writing of the existence of any claim, demand or other matter ("Claim") to
which, in BUYER's reasonable judgment, COMPANY's indemnification
obligations hereunder would apply. COMPANY shall thereafter have ten (10)
business days to determine whether, in its reasonable judgment, it is
obligated to indemnify Buyer with respect to such claim. If COMPANY
determines, within such ten (10) business day period, that it is so
obligated, the COMPANY shall notify BUYER of its determination thereof.
Thereafter, COMPANY, upon BUYER's request shall assume the defense thereof,
including retaining counsel reasonably satisfactory to BUYER to represent
BUYER, and shall pay the fees and expenses of any such counsel related to
such proceeding as well as any fees or expense incurred by BUYER to the
date of COMPANY's assumption of the defense. In any such proceeding, BUYER
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of BUYER.
All costs incurred by BUYER in the defense, settlement or compromise of any
Claim described hereunder shall, to the extent COMPANY would otherwise be
obligated to pay such costs, be reimbursed to BUYER by COMPANY. If the
Claim is one that cannot by its nature be defended solely by COMPANY
(including, without limitation, any federal or state tax proceeding), then
BUYER shall make available information and assistance (but not financial
assistance) reasonably required to defend the Claim.
17. Publicity
This agreement shall not be construed to give either party a right to
authorize any news release advertisement, or other disclosure which shall
deny or confirm the existence of this agreement without the prior written
consent of the other party, except as may be required to perform this
agreement. In the event state or federal law, or court order compels
either the disclosure or the existence of this agreement and or the
contents thereof, the compelled party will provide the other party written
notification of the existence of a circumstance which, in the compelled
party's reasonable judgment, compels disclosure within 24 hours of
determining the need for any such disclosure.
18. Waiver
The failure of either party to insist upon the performance of any provision
of this agreement, or to exercise any right or privilege granted to either
party under this agreement, shall not be construed as waiving such
provision or any other provision of this agreement, and the same shall
continue in full force and effect. If any provision of this agreement is
found to be illegal or otherwise unenforceable by any court or other
judicial or administrative body, the other provisions of this agreement
shall not be affected thereby, and shall remain in full force and effect.
19. Termination
BUYER and COMPANY mutually agree and acknowledge that the Purchase Order
referenced hereunder can not be canceled nor may product be returned for
restocking, except as may be provided in sections 11, 12 and 13.
20. Entire Agreement
This agreement contains the final and entire agreement between the BUYER
and the COMPANY and no understanding, representations, agreement,
modifications, alterations or additions shall be effective unless in
writing signed by the BUYER and the COMPANY.
21. Confidentiality & Proprietary Information
BUYER and COMPANY agree that the discussions regarding purchases here under
are of a confidential nature. COMPANY and BUYER further agree not to
disclose the terms of this agreement to others without prior written
approval, with the exception of IBM, IBM's employees, and companies or
individuals necessary to perform the business of producing WDM sub-
assemblies for BUYER. COMPANY will however, notify BUYER in advance, of
any discussions with IBM concerning issues related to the technical aspects
of this product and offer an opportunity for BUYER to participate in such
discussions. Similarly, BUYER will notify COMPANY in advance, of any
discussions with IBM concerning issues related to the technical aspects of
this product and offer an opportunity for COMPANY to participate in such
discussions. BUYER further agrees not to disclose any technical
specifications of COMPANY supplied components to any company or individual,
without prior written approval from COMPANY.
22. Governing Law, Dispute Resolution and Venue
State of New Jersey.
23. Assignment
Neither COMPANY nor BUYER shall have the right to assign any of its rights
under this Agreement without the prior written consent of the other party
hereto, and no purported assignment shall be binding upon the non-
consenting party. Such assignment shall not be unreasonably withheld.
24. Notices
Notice shall be deemed given five (5) days after being mailed certified or
registered mail by either party to the address listed above. Notices being
mailed to the COMPANY will be sent in duplicate to Instruments SA, Inc.
0000 Xxxx Xxxxxx, Xxxxxx, XX 00000 to the attention of: 1) Xxxxxxx
Xxxxxxxxx, OEM Accounts Manager, and 2) President. For notices being
mailed to the BUYER the address will include: 00000 Xxxxxxx XxXxxxxx
Xxxxx, Xxxxx, Xxxxxxx 00000 to the attention of 1) Xxx Xxxxxx, Senior
Buyer, and 2) Legal Counsel.
For the BUYER For the COMPANY
/s/ S. Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxxxxx
S. Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxx
Asst. Legal Counsel OEM Accounts Manager
Group Technologies Corporation Instruments S.A., Inc.
(BUYER) (The COMPANY)
Appendix A
Catalog Number: 11070211
DESCRIPTION:
20 CHANNEL OPOS High Density Wavelength Division Multiplexoer, with radial
connector, unit as specified in IBM document number KLISA050995.
