EXHIBIT 10.8
VIASYSTEMS, INC.
MANUFACTURING AGREEMENT
This agreement (this "Agreement") is made this 21st day of September,
2001 between Viasystems, Inc., a Delaware corporation ("VIASYSTEMS"), and SR
Telecom S.A.S., a French corporation ("S.A.S.") and SR Telecom Inc., a
corporation incorporated pursuant to the laws of Canada. For the purposes of
this Agreement, SR Telecom Inc. and S.A.S. are collectively referred to as the
"Buyer".
RECITALS
The parties desire to establish the terms and conditions that will
apply to Buyer's purchase of certain products manufactured by Viasystems for
Buyer. Buyer desires to have certain products of its design manufactured by
Viasystems for sale to Buyer. Viasystems has the capability of manufacturing
such products in its Rouen Facilities or in any other Viasystems facility and
desires to do so for sale to Buyer.
AGREEMENT
In consideration of the foregoing and the agreements contained herein,
the parties agree as follows:
1. DEFINITIONS.
a) "Affiliate" shall mean any entity that directly or indirectly
controls, is under control with, or is controlled by, one of
the parties to this Agreement. An entity shall be deemed to be
in control of another entity only if, and for so long as, it
owns or controls more than fifty-one percent (51%) of the
shares of the subject entity entitled to vote in the election
of the directors (or, in the case of an entity that is not a
corporation, for the election of the corresponding managing
authority).
b) "Confidential Information" of a party shall mean any
information disclosed by that party to the other pursuant to
this Agreement which is written, graphic, machine readable or
other tangible form and is marked "Confidential,"
"Proprietary" or in some other manner to indicate its
confidential nature. Confidential Information may also include
oral information disclosed by one party to the other pursuant
to this Agreement, provided that such information is
designated as confidential at the time of disclosure and is
reduced to writing by the disclosing party within a reasonable
time (not to exceed thirty (30) days) after its oral
disclosure), and such writing is marked in a manner to
indicate its confidential nature and delivered to the
receiving party. Notwithstanding any failure to so identify
it, however, all Specifications shall be Confidential
Information of Viasystems.
c) "Cost" shall mean the actual purchase price of a component,
its production or a service and does not include an
administrative or similar xxxx-up.
d) "Delivery Date" shall mean a date of which delivery of
Products is requested in a Purchase Order and accepted by
Viasystems.
e) "Distribution Item" shall mean a component that is included in
a Buyer stocking agreement with a third party distributor that
is held in the distributor's stock and available for immediate
shipment to Buyer or its authorized manufacturer.
f) "Excess Inventory" shall mean materials, components and
supplies purchased under the terms of this agreement, held in
inventory by Viasystems and for which there is no requirement
in the next 90 days of the forecast.
g) "Intellectual Property" shall mean (i) all rights held by
Buyer in the Products and in its Confidential Information,
including, but not limited to, patents, copyrights, authors'
rights, trademarks, tradenames, know-how and trade secrets,
irrespective of whether such rights arise under U.S. or
international intellectual property, unfair competition or
trade secret laws, and (ii) all rights held by Viasystems in
its Confidential Information, including, but not limited to,
patents, copyrights, authors' rights, trademarks, tradenames,
know-how and trade secrets, irrespective of whether such
rights arise under U.S. or international intellectual
property, unfair competition of trade secret laws.
h) "Inventory" shall mean raw materials, components and supplies
necessary for the manufacture of Products pursuant to this
Agreement.
i) "Long-Lead Inventory" shall mean those items of Inventory
identified in writing by Viasystems to Buyer prior to
beginning manufacture of any particular type of Product that
have a lead time from Viasystems' supplier longer than ninety
(90) days.
j) "Products" shall mean all products designed and/or marketed by
Buyer or its Affiliates included in Exhibit A hereto and any
modification or replacement thereof or substitution therefore.
k) "Purchase Order" shall mean a Buyer Purchase Order in the form
mutually agreed by the parties.
l) "Services" shall mean the manufacturing services set forth in
Exhibit B hereto.
m) "Specifications" shall mean the written specifications for the
Products as provided by Buyer and accepted by Viasystems, and
as revised from time to time upon mutual agreement of the
parties.
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2. MANUFACTURE AND SUPPLY OF PRODUCTS.
a) Agreement to Manufacture. Pursuant to Purchase Orders or
changes to Purchase Orders issued by Buyer or/and Affiliate
and accepted by Viasystems, Viasystems agrees to procure
Inventory and to manufacture, test, assemble, and deliver the
Products pursuant to the Specifications for each such Product
and to deliver such Products to a location designated by
Buyer. Buyer agrees to purchase all manufacture, test and
assembly services for the Products and all Products required
by Buyer and its Affiliates on a global basis during the term
of this Agreement exclusively from Viasystems. Viasystems will
not place its name on any other marking not approved by Buyer
anywhere on the Products or their respective packaging
material, except markings, if any, which are required by law.
b) Forecasts. Viasystems shall supply the quantities of Product
meeting the Specifications on the Delivery Dates requested by
Buyer provided that a Purchase Order has been issued by the
Buyer and accepted by Viasystems. On the fifteenth (15th) day
of each month, Buyer shall provide Viasystems with a rolling
forecast in writing (the "Forecast") of Buyer's monthly and
estimated aggregate purchase requirements of Product for the
next twelve-month period. Subject to Section 2e) hereof, 3
months of the Forecast shall be binding, unless a longer.
period is approved in writing by Buyer. Subject to these
binding Forecast requirements, if the Forecast for any period
is less than the previous Forecast supplied for the same
period, the difference will be considered canceled. Any
cancellation of forecast within the binding period (3 months)
generating Excess Inventory shall be resolved per subsection
6.c). If the new Forecast for any period is greater than the
previous Forecast supplied for the same period, Viasystems
shall nonetheless supply, the difference in the forecasted
quantity of Products so long as the difference does not exceed
35%, 65% and 100%, respectively, of the previous Forecast with
respect to the next thirty, sixty and ninety days of the
previous Forecast. Viasystems shall use its commercially
reasonable efforts to supply the number of Products set forth
in the Forecast.
c) Purchase Orders. All orders for Product shall be submitted to
Viasystems in writing by mail or facsimile to the address set
forth on the signature page to this Agreement, and shall
conform to the binding Forecasts in accordance with Section
2b). Buyer shall submit such Purchase Orders to Viasystems at
least sixty (60) days prior to the date of requested delivery
("Delivery Date"), or such longer period of time as mutually
agreed upon by the parties for Products incorporating
Long-Lead Inventory.
d) Inventory. Viasystems agrees to purchase or hold in Inventory
all components to fulfill Buyer Purchase Orders plus 1 month
of Forecast and Long-Lead Inventory. Viasystems will order
Long-Lead Inventory to fulfill Buyer purchase orders plus
Forecast due within the stated lead-time of the component,
provided that, Viasystems provides Buyer a monthly report on
the status of Long-Lead Inventory. Viasystems will use proper
procurement practices to minimize the Buyer's exposure to
excess inventory. Viasystems shall add its manufacturing
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lead time of two (2) to three (3) weeks to each of the time
frames described in this Section 2d).
e) Changes/Cancellation. The three (3) month binding Forecast may
not be cancelled. Buyer may change a the Delivery Date for
Products by submitting written notice to Viasystems on the
following terms:
REMAINING LEAD TIME REMARKS
------------------- -------
0-30 days Prior to original Delivery
Date-No Change
31-60 days Reschedules not to exceed 15 days
from original Delivery Date.
61-90 days Reschedules not to exceed 30 days
from original Delivery Date
90+ days May be rescheduled with material
liability to Buyer as defined herein
f) Acceptance or Rejection of Purchase Orders. All Purchase
Orders shall be deemed accepted unless rejected by Viasystems,
in writing, within ten (10) days of receipt by Viasystems. In
the event of a conflict between the terms of a Purchase Order
and this Agreement, this Agreement shall control.
g) Engineering Changes. Buyer may request at any time, with at
least five (5) days' written notice, that Viasystems
incorporate an engineering change into a Product. Such request
will include a description of the proposed change sufficient
to permit Viasystems to evaluate its feasibility, in good
faith and as may be mutually agreed, when requested changes
are significant, a longer notice period will be provided.
Viasystems' evaluation shall be in writing and shall state the
impact on delivery schedule and expected Cost. Viasystems will
not be obligated to proceed with the engineering change until
the parties have agreed in good faith on the changes to the
Specifications, Delivery Dates and Pricing and upon the costs
to be paid by Buyer, including reassembly, retooling or Cost
of Inventory on-hand and on-order that becomes obsolete as a
result of the engineering change. Viasystems will use all
reasonable efforts to return all unused Inventory for full
refund, to cancel pending orders and to take other actions to
reduce such costs to be paid by Buyer as determined under
Section 6.a).
h) New Products. Buyer may from time to time, request in writing
that Viasystems manufacture and test first articles,
prototypes, pre-production units, test units or other similar
products ("Odd Units"). Viasystems makes no representation or
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warranty as to Odd Units and assumes no liability for or
obligation related to the yield, performance, accuracy,
specifications, defects of or due to (i) fixtures, designs or
instructions produced or supplied by Buyer, (ii) components or
other equipment from the Buyer or any vendor on the Approved
Vendor List, or (iii) printed circuit boards or any other
Buyer designated components that are manufactured pursuant to
Buyer's Specifications.
i) Repair. Viasystems agrees to provide the Buyer with repair
services for the Products according to the procedure in
Exhibit D, for which Viasystems will invoice the Buyer as per
the Pricing agreed upon and defined in Exhibit E. The Payment
shall be made according to section 7.a) of this Agreement.
Viasystems shall provide such Services, for the duration of
this Agreement, exclusively to the Buyer for the Buyers
Products in Exhibit D hereto and any modification or
replacement thereof or substitution therefore.
3. COMPONENTS; TOOLING.
a) Approved Vendor List. Buyer shall provide a Xxxx of Materials
and Approved Vendor List (an "AVL") for each Product to be
manufactured hereunder. Viasystems shall manufacture the
Products using components obtained solely from vendors
included on the AVL, as it may change from time to time, as
determined by Buyer. The AVL shall not be amended without
prior written approval by Buyer. Notwithstanding the
foregoing, Viasystems will be permitted to substitute
components manufactured by Viasystems or its Affiliates for
components designed on the AVL with the prior consent of
Buyer, which consent will not be unreasonably withheld. All
such changes must: (i) not impact form, fit or function; and
(ii) provide equal or superior performance/features/
functionality to the Products as they existed prior to making
of the change.
b) Buyer Supplied Components. Buyer may supply components to
Viasystems at Viasystems' expense upon the written consent of
Viasystems. Such components, including provision for failed
parts, shall be delivered to Viasystems not later than three
(3) weeks prior to the scheduled Delivery Date for the related
Products to Buyer. Should Buyer be unable to meet such
delivery requirements, Buyer may, at its option, request
Viasystems to either (i) ship Products to Buyer absent the
supplied parts on or after seven (7) days from the scheduled
Delivery Date or (ii) hold the Products pending receipt of
such components from Buyer. Under these circumstances Buyer
will give written notification to Viasystems prior to the
scheduled Delivery Date, and Viasystems may invoice Buyer for
such Products on or after seven (7) days from the scheduled
Delivery Date, or on such other terms as equitably agreed by
the parties. Should Buyer be required to procure components at
a premium cost as the result of a default by Viasystems,
Viasystems shall be responsible for the premium costs incurred
and Buyer shall not be required to pay xxxx-up on the Product
purchase price for any additional cost incurred. If the
required premium purchases are a result of an act by Buyer,
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then Buyer shall be responsible for the premium price and the
associated markups.
c) Tooling/Non-Recurring Expenses. Viasystems shall provide
tooling that is not specific to the Product at its own
expense. Buyer shall pay for or obtain and consign to
Viasystems for its use any Product-specific tooling and other
reasonably necessary non-recurring expenses specific to the
Product, as set forth in Viasystems' quotation, and approved
in writing by Buyer ("Set-Up Property"). Buyer shall own title
to all Set-Up Property and shall be responsible for
maintenance and calibration costs. Viasystems shall hold and
maintain all Set-Up Property and other property for Buyer and
shall exercise reasonable care in the use and custody of such
property and shall use such property only in performing its
obligations under this Agreement. Viasystems will xxxx all
Set-Up Property to clearly identify it as being the property
of Buyer. Viasystems shall not grant any security interest in
or incur any liens or any other encumbrances on said Set-Up
Property. Upon termination of this Agreement or upon Buyer's
written request, Viasystems will promptly return all Set-Up
Property in good and workable condition, with the exception of
normal wear and tear, to a location identified by Buyer at
Buyer's cost.
4. DOCUMENTATION
a) Viasystems shall furnish, at no charge, materials, and/or
documentation, including such documentation as is reasonably
required to support installation, operation and maintenance
activities, and any succeeding changes thereto, as described
in the Specifications and elsewhere in this Agreement. With
respect to materials, and/or documentation containing
information pre-existing and not created under or in
contemplation of this Agreement: 1) Buyer may use, reproduce,
reformat and distribute such Product documentation; and 2)
Buyer shall reproduce Viasystems' copyright notice contained
in any documentation reproduced without change by Buyer.
b) For documentation that is reformatted or modified by Buyer,
Buyer shall have the right to place only Buyer's own copyright
notice on the reformatted or modified documentation. It is the
intent of the parties that Buyer's copyright notice shall be
interpreted to protect the underlying copyright rights of
Viasystems to the documentation to the extent such underlying
rights are owned by Viasystems.
5. TRAINING
a) If requested by Buyer, Viasystems will, at rates usually
charged by Viasystems:
(i) provide instructors and the necessary instructional
material of Viasystems' standard format to train
Buyer's personnel in the installation, planning and
practices, operation, maintenance and repair of
materials furnished under
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this Agreement. These classes shall be conducted at
reasonable intervals at locations agreed upon by
Viasystems and Buyer; or
(ii) at the option of Buyer, provide to Buyer training
modules or manuals and any necessary assistance,
covering those areas of interest outlined in (a) of
this Section, sufficient in detail, format and
quantity to allow Buyer to develop and conduct its
own training program.
6. PRODUCT SHIPMENT AND INSPECTION AND QUALITY AND ENVIRONMENT.
a) Shipments. Buyer intends to monitor Viasystems' delivery
performance. All Products delivered pursuant to the terms of
this Agreement shall be suitably packed and marked according
to Buyer's instructions. Buyer's delivery requirement is that
Viasystems maintains a mutually agreed on time delivery
performance based on Viasystems' committed date. Products may
be delivered up to three (3) days early and three (3) days
late. (the "Dock Date"). Shipment will be F.O.B. Viasystems'
factory, at which time risk of loss and title will pass to
Buyer. All freight, insurance and other shipping expenses will
be paid by Buyer, as well as any special packaging expenses
approved in writing by Buyer and not included in the original
price quotation for the Products.
b) If Viasystems fails to deliver conforming Products within the
time frame agreed to between the parties in this Agreement or
a Purchase Order placed pursuant to this Agreement, Buyer
shall have the right to extend such delivery time frame to a
later date not to exceed thirty (30) days, subject however, to
the right to cancel the Purchase Order if delivery is not made
within the thirty (30) day delay and performance is not
completed on or before such extended delivery date and to the
extent that such cancellation is a result of a customer of
Buyer canceling a purchase order with Buyer and in such an
event Viasystems agrees to reconfigure the Products at its
cost within six (6) months if the Products in question are the
subject of a Purchase Order within said six (6) month period.
After the period of six (6) months, such Products shall be
deemed to be Excess Inventory.
c) Cancellation. Buyer may not cancel any portion of an accepted
Purchase Order and associated three (3) month of Forecast, or
Forecast affecting Long-Lead Inventory or other Inventory
required to be on hand pursuant to Section 2.d) hereof without
Viasystems' prior written approval, which will not be
unreasonably withheld. If parties agree upon a cancellation of
Forecast, Viasystems will provide the Buyer with a projection
on the Excess Inventory generated by the cancellation. On the
30th day of each month, Viasystems will submit to the Buyer
the list of Excess Inventory items for review and approval.
Upon approval, the Buyer will issue a Purchase Order for these
items at 110% of the cost. Viasystems agrees to hold and
maintain , at no additional charges, the Excess inventory in
its facility for a period of no longer than six (6) months.
Viasystems agrees to buy back the Excess Inventory at Cost to
satisfy new
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requirements from the Buyer forecast or for any of its other
Customer, as a preference to its regular sources.
Upon cancellation of a Purchase Order, the Buyer will pay
Viasystems for Products and Inventory (except in the case of a
cancellation of a Purchase Order resulting from the failure to
deliver as set forth in 6b)) affected by the cancellation as
follows: (i) 100% of the purchase price for all finished
Products in Viasystems' possession, (ii) 110% of the cost of
all Inventory on order and not cancelable, (iii) a pro-rata
portion of the Product labor price for all work in process,
and (iv) any vendor cancellation charges incurred with respect
to Inventory or Long-Lead Inventory accepted for cancellation
or return by the vendor, to the extent that such Inventory
charges are a result of purchasing activity by Viasystems
within the terms set forth in Section 2.d) including minimum
order quantities. Viasystems will use reasonable commercial
efforts, including the mutual involvement of Buyer, to return
unused Inventory for a full refund, net of restocking charges
of such vendor and to cancel pending orders. Buyer will be
entitled to take delivery of all Products and Inventory to be
paid for by Buyer under this Section 6a), promptly following
Viasystems' receipt of payment therefore.
d) Product Inspection and Acceptance. Viasystems shall inspect
all manufactured Products according to the Specifications and
shall be responsible for manufacturing the Products in
accordance with the Specifications. The Products delivered by
Viasystems will be inspected and tested as required by Buyer
within 120 days of receipt (the "Acceptance Period"). If
Products are found to be defective in material or workmanship
and/or fail to meet the Specifications, Buyer may reject such
Products during the Acceptance Period. Products not rejected
during the Acceptance Period will be deemed acceptable. Buyer
may return rejected Products upon receipt of a Return Material
Authorization (RMA) number from Viasystems. Rejected Products
will be repaired or replaced, at Viasystems' option, and
returned freight pre-paid within 10 business days of receipt
of the Product, unless otherwise negotiated. Viasystems shall
not be responsible for Products that are without detectable
defects by Buyer approved inspections and tests, yet fail to
meet Specifications due to design considerations. The Buyer
may perform Product acceptance at Viasystems premises at no
additional charges from Viasystems.
e) Quality. All Products manufactured under the terms of this
agreement shall comply to workmanship standard IPC 610 class
2.
Within the first year of the agreement, Viasystems shall
become certified to ISO 9001-2000 standards.
f) Heavy Metals And/Or CFC In Packaging. Viasystems warrants to
Buyer that no lead, cadmium, mercury or hexavalent chromium
have been intentionally added to any packaging or packaging
component (as defined under applicable laws) to be provided to
Buyer under this Agreement and that packaging materials were
not manufactured using and do not contain chlorofluorocarbons.
Viasystems further
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warrants to Buyer that the sum of the concentration levels of
lead, cadmium, mercury and hexavalent chromium in the package
or packaging component provided to Buyer under this Agreement
does not exceed 100 parts per million. Upon request,
Viasystems shall provide to Buyer Certificates of Compliance
certifying that the packaging and/or packaging components
provided under this Agreement are in compliance with the
requirements set forth above in this Section f).
g) Ozone Depleting Substances. Viasystems hereby warrants that it
is aware of international agreements and legislation in
several nations, including the United States, which limits,
bans and/or taxes importation of any product containing, or
produced using ozone depleting substances ("ODS"), including
chloroflurocarbons, halons and certain chlorinated solvents.
Viasystems hereby warrants that the Products furnished to
Buyer will conform to all applicable requirements established
pursuant to such agreements, legislation and regulations, and
the Products furnished to Buyer will be able to be imported
and used lawfully (and without additional taxes associated
with ODS not reported to Buyer by Viasystems as set forth in
this Section 6.g)) under all such agreements, legislation and
requirements. Viasystems also warrants that it is currently
reducing, or if Viasystems is not the manufacturer of the
Products, is currently causing the manufacturing supplier to
reduce and will, in an expeditious manner, eliminate, or, as
applicable, have its manufacturing supplier eliminate the use
of ODS in the manufacture of the Products.
If the Products furnished by Viasystems under this Agreement
is manufactured outside the United States, Viasystems shall,
upon execution of this Agreement, and at any time that new
products are added to this Agreement or changes are made to
the Products furnished under this Agreement, complete, sign
and return to Buyer, in the form found in Attachment E of the
Supply Agreement, the ODS Content Certification. The ODS
Content Certification must be signed by Viasystems' facility
manager, corporate officer or his delegate.
The term "ODS content" on the ODS Content Certification means
the total pounds of ODS used directly in the manufacture of
each unit of Products. This includes all ODS used in the
manufacturing and assembly operations for the Products plus
all ODS used by Viasystems' suppliers and any other suppliers
in producing components or other products incorporated into
the Products sold to Buyer.
Viasystems is responsible to obtain information on the ODS
content of all components and other products acquired to
manufacture the Products and to incorporate such information
into the total ODS content reported to Buyer; provided
however, that Viasystems should not include in the ODS content
those components or other products which are manufactured in
the United States. Viasystems hereby warrants to Buyer that
all information furnished by Viasystems on the ODS Content
Certification is complete and accurate and that Buyer may rely
on such information for any purpose, including but not limited
to
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providing reports to government agencies or otherwise
complying with applicable laws. Viasystems shall defend,
indemnify and hold Buyer harmless of and from any claims,
demands, suits, judgments, liabilities, fines, penalties,
costs and expenses (including additional ODS taxes as provided
for in paragraph one of this clause and reasonable attorney's
fees) which Buyer may incur under any applicable federal,
state, or local laws or international agreements, and any and
all amendments thereto by reason of Buyer's use of reliance on
the information furnished to Buyer by Viasystems on the ODS
Content Certification or by reason of Viasystems' breach of
this clause. Viasystems shall cooperate with Buyer in
responding to any inquiry concerning the use of ODS to
manufacture the Products or components thereof and to execute
without additional charge any documents reasonably required to
certify the absence or quantity of ODS used to manufacture the
Products or components thereof.
h) Ozone Depleting Substances Labeling. Viasystems warrants and
certifies that all Products, including packaging and packaging
components, provided to Buyer under this Agreement have been
accurately labeled, in accordance with the requirements of 40
CFR Part 82 entitled "Protection of Stratospheric Ozone,
Subpart E - The Labeling of Products Using Ozone Depleting
Substances."
i) Compliance With Environmental, Occupational Health And Safety
(EH&S) Laws. Viasystems and all persons furnished by
Viasystems shall comply at their own expense with all
applicable EH&S laws, ordinances, regulations and codes,
including the identification and procurement of required
permits, certificates, licenses, insurance, approvals and
inspections in performance under this Agreement.
j) Environmental Management Systems. Viasystems warrants to Buyer
that it intends to implement elements of an internationally
recognized environmental management system (EMS) standard, for
example ISO 14001, or Eco-Management and Audit Scheme. As part
of the EMS, Viasystems agrees to establish environmental
objectives/targets that will lead to improved environmental
performance.
k) Environmentally Restricted Substances. Viasystems warrants to
Buyer that none of the following substances are used or will
be used in the manufacture or processing of Products supplied
to Buyer nor do the products contain any measurable amount of
the following substances:
Asbestos (all types) Trichlorofluoroethane (CFC 11)
Cadmium and Cadmium Compounds (used as Dichlorodifluoromethane (CFC 12)
a dye, pigment or stabilizer in any
plastic, paint or lacquer, or plating
material)
Lead Pigments (excludes lead compounds Chlorotrifluoromethane (CFC 13)
in plastics if total lead content in
plastic is less than 50% and no
substitute exists)
Polychloriated Biphenyls (PCBs) Pentachlorofluoroethane (CFC 111)
Polybrominated Biphenyls (PCBs) Tetrachlorodifluoroethane (CFC 112)
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Polybrominated Biphenyl Ether (PBBE) Trichlorotrifluoroethane (CFC 113)
Polychlorinated Triphenyls (PCT) Dichlorotetrafluoroethane (CFC 114)
Pentachlorophenols (PCP) Monochloropentafluoroethane (CFC 115)
Polybromodiphenyloxides (PBDOs) Heptachlorofluoropropane (CFC 211)
Polychlorinated and polybrominated Pentachlorotrifluoropropane (CFC 213)
dibenzodioxins
Polychlorinated and polybrominated Tetrachlorotetrafluoropropane (CFC 214)
dibenzofurans
Vinyl Chloride (As Residual Monomer) Trichloropentafluoropropane (CFC 215)
Ethylene glycol monomethyl ether (CAS # Dichlorohexafluoropropane (CFC 216)
109-86-4)
Ethylene glycol monomethyl ether acetate Monochloroheptafluoropropane (CFC 217)
(CAS # 110-49-6)
Ethylene glycol monoethy1 ether (CAS # 110- Bromochlorodifluoromethane (HALON 1211)
80-5)
Ethylene glycol monoethyl ether acetate (CAS Bromotrifluoromethane (HALON 1301)
# 111-15-9)
Diethylene glycol dimethyl ether (CAS # 111- Dibromotetrafluoromethane (HALON 2402)
96-6)
Diethylene glycol monomethyl ether (CAS # Carbon Tetrachloride (CC1(4))
111-77-3)
Triethylene glycol dimethyl ether (CAS # 1,1,1 Trichloroethane (CH(2)CC1(3))
112-49-2)
7. PAYMENT TERMS, ADDITIONAL COSTS AND PRICE CHANGES.
a) Payment Terms. Payment for any products, services or other
costs to be paid by Buyer hereunder are due thirty (30) days
from the date of invoice for Products delivered to Buyer and
shall be made by in French Francs or in Euros.
b) Additional Costs.
(i) Duties and Taxes. All prices quoted are exclusive of
federal, state and local excise, sales, use and
similar duties and taxes, and Buyer shall be
responsible for all such items.
(ii) Expediting Charges. Buyer shall be responsible for
any expediting charges reasonably necessary because
of a change in Buyer's requirements. Viasystems shall
obtain approval from Buyer for expediting charges
prior to incurring any such charge.
c) Price; Price Changes. The initial purchase prices for the
Products identified on Exhibit A and Services identified in
Exhibit B hereto are set forth on Exhibit C hereto. The
initial purchase price for any new Product or Services shall
be established by mutual good faith agreement of the parties.
(i) Market Fluctuations. Unless otherwise agreed to, in
the event of extraordinary increases or decreases (in
the amount of 5% or more) in the
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market price of materials, raw materials, labor and
other production costs, Viasystems shall have the
right to renegotiate in good faith the price of goods
not yet shipped, with the exclusion of finished
Products. Viasystems shall substantiate such changes
in cost with documentation satisfactory to Buyer,
including, but not limited to, a list of purchased
material and purchased services showing quantities
and cost for each, and direct labor hours for each
operation. If agreement is not reached on pricing for
existing Purchase Orders, Viasystems shall have the
right to reject any forecast not covered by an
existing Purchase Order.
(ii) Cost Reductions. During the initial two years of the
term of this Agreement, Viasystems will use
reasonable efforts, in cooperation with Buyer, to
achieve reductions in the Costs of manufacture of the
Products. Upon implementation of Viasystems-initiated
Product engineering changes or external procurement
or alternate sourcing activities that result in a
reduction in Cost, Viasystems will receive 100% of
the demonstrated Cost reduction for a period of no
less than three months or until the business review
after implementation of the engineering change. Cost
reduction generated by changes in the Product and
initiated by the Buyer shall be passed on to the
Buyer from its date of implementation. In the event
the reduction of Costs occurs in conjunction with a
capital expenditure by Viasystems, Viasystems will be
entitled to recover the cost of its capital
expenditure prior to such Cost reduction being
reflected in the purchase price of the Products.
Thereafter, Viasystems will share such Cost
reductions with Buyer on a basis to be determined in
good faith by the parties.
d) Regular Business Reviews. The parties will have regular
business reviews, as mutually agreed, to review the prices of
the Products, Xxxx of Materials, Inventory strategy, cost
reduction plans, quality, Forecasts and delivery performance
and to mutually develop any modifications that may be
necessary.
8. LICENSE GRANTS; OWNERSHIP RIGHTS.
a) Nonexclusive License. During the term of this Agreement,
Viasystems shall be deemed to have been granted by Buyer a
non-exclusive, non-transferable, royalty-free license,
without right to sublicense, to use that part of Buyer's
Intellectual Property required to manufacture the Products for
sale to Buyer pursuant to the terms of this Agreement.
b) Software. All software that Buyer provides to Viasystems is
and shall remain the property of Buyer. Viasystems shall have
a non-exclusive, non-transferable, royalty-free license
(without right to sublicense), to copy, modify and use this
software during the term of this Agreement solely for the
purpose of manufacturing Product for sale to Buyer pursuant to
the terms of this Agreement. All copied and modified versions
of this software is and shall remain the property
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of Buyer. All software developed by Viasystems to support the
process tooling or otherwise shall be and remain the property
of Viasystems unless funded by Buyer, in which case such
software shall be owned by Buyer, and Viasystems hereby
assigns all its right, title and interest in such software to
Buyer and shall cooperate with Buyer, at Buyer's expense,
before and after the termination of this Agreement, to permit
Buyer in obtaining and enforcing the full benefits, enjoyment,
rights and title throughout the world in such software.
c) Intellectual Property Rights. Each party shall retain sole
ownership of, and all rights to, any Intellectual Property of
any kind previously owned by that party or created solely by
that party.
d) Trademarks. In consideration of the fees set forth herein,
Buyer further grants Viasystems a non-exclusive license to use
the Trademarks on and in connection with the manufacture of
the Products, and for this purpose to affix, subject to
Buyer's prior written approval, the Trademarks to or on the
Products. Such trademark license shall expire or terminate
upon the expiration or termination of Viasystems' rights to
manufacture the Products. The Trademarks may only be used in
association with the manufacture and distribution of the
Products pursuant to the terms of this Agreement, and any and
all uses of the Trademarks shall be subject to the prior
written approval of Buyer. Viasystems shall not remove
trademark notices from any Product without the prior written
consent of Buyer. Viasystems shall not use the name,
Trademarks or logos associated with the Products in its
business name. For purposes of the preceding paragraph,
"Trademark" shall mean the trademarks that are associated with
the Product which are approved by Buyer for use by Viasystems
in the manufacture of the Products.
9. CONFIDENTIAL INFORMATION.
a) Nondisclosure and Nonuse. Each party shall treat as
confidential all Confidential Information of the other party,
shall not use such Confidential Information except as set
forth in this Agreement, and shall use reasonable efforts not
to disclose such Confidential Information to any third party.
Without limiting the foregoing, each of the parties shall use
at least the same 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 other party under this
Agreement. Each party shall disclose Confidential Information
of the other party only to its directors, officers, employees,
and consultants who are required to have such information in
order for such party to carry out the transactions
contemplated by this Agreement and only to the extent that
such directors, officers and employees are bound not to
disclose the Confidential Information. Each party shall
promptly notify the other party of any actual or suspected
misuse or unauthorized disclosure of the other party's
Confidential Information.
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b) Exceptions. Notwithstanding the above, neither party shall
have liability to the other with regard to any Confidential
Information of the other which the receiving party can prove:
(i) was in the public domain at the time it was disclosed
or has entered the public domain through no fault of
the receiving party;
(ii) was known to the receiving party, without
restriction, at the time of disclosure, as
demonstrated by files in existence at the time of
disclosure;
(iii) is disclosed with the prior written approval of the
disclosing party;
(iv) was independently developed by the receiving party
without any use of the Confidential Information, as
demonstrated by files created at the time of such
independent development;
(v) becomes known to the receiving party, without
restriction, from a source other than the disclosing
party without breach of this Agreement by the
receiving party and otherwise not in violation of the
disclosing party's rights; or
(vi) is disclosed pursuant to the order or requirement of
a court, administrative agency, or other governmental
body; provided, however, that the receiving party
shall provide prompt notice of such court order or
requirement to the disclosing party to enable the
disclosing party to seek a protective order or
otherwise prevent or restrict such disclosure.
c) Return of Confidential Information. Upon expiration or
termination of this Agreement, each party shall promptly
return all Confidential Information of the other party. In
addition, each party shall, upon written request of the other
party, return Confidential Information of such other party.
d) Remedies. Any breach of the restrictions contained in this
Section 9 is a breach of this Agreement which may cause
irreparable harm to the non-breaching party. Any such breach
shall entitle the non-breaching party to injunctive relief in
addition to all legal remedies.
e) Confidentiality of Agreement. Each party shall be entitled to
disclose the existence of this Agreement, but agrees that the
terms and conditions of this Agreement shall be treated as
Confidential Information and shall not be disclosed to any
third party; provided, however, that each party may disclose
the terms and conditions of this Agreement:
(i) as required by any court or other governmental body;
(ii) as otherwise required by law;
(iii) to legal counsel of the parties;
14
(iv) in confidence, to accountants, banks, financing
sources and their advisors;
(v) in connection with the enforcement of this Agreement
or rights under this Agreement; or
(vi) in confidence, in connection with an actual or
proposed merger, acquisition, or similar transaction.
10. INDEMNITY.
a) At Buyer's request, Viasystems agrees to indemnify, defend and
hold harmless Buyer, its affiliates, customers, employees,
successors and assigns (all referred to as "Buyer") from and
against any losses, damages, claims, fines, penalties and
expenses (including reasonable attorney's fees) that arise out
of or result from:
(i) injuries or death of persons or damage to property
(a) caused by any willful act or negligent act or
omission by Viasystems, including theft, which
results in the failure of the Product to conform to
Specifications or (b) in any way arising out of or
caused by the work or services performed by
Viasystems except to the extent caused by the
negligence of Buyer; or
(ii) assertions under workers' compensation or similar
acts made by persons furnished by Viasystems.
b) Buyer Indemnification. Buyer shall indemnify, defend and hold
harmless Viasystems and its officers, directors, employees and
agents from any loss, claim, cost or damage, including
reasonable attorney and accountant's fees, arising out of any
claim, action, bodily injury and/or property damage based on
the design, distribution, sale, or use of any Product
manufactured in accordance with the Buyer's Specifications,
except for any loss, claim, cost or damage which results from
any willful or negligent act or omission by Viasystems which
results in the failure of Viasystems to conform to Viasystems'
warranty set forth in Section 11 hereof.
c) Intellectual Property Infringement Indemnity. Buyer shall
indemnify, defend and hold harmless Viasystems and its
officers, directors, employees and agents from any loss,
claim, cost or damage, including reasonable attorney and
accountant's fees, arising out of any suit or proceeding based
on a claim that any Product or portion thereof constitutes
infringement of any copyright, mask work, patent, or trade
secret, whether foreign for domestic, that exists as of the
date Viasystems manufactured said Product or portion thereof;
provided that:
(i) the claim arises as a result of the methods or
processes of design, manufacture, assembly, or
testing of such Products, where such methods or
processes are contained in the Specifications for any
Product or portion thereof provided by Buyer to
Viasystems and used by Viasystems in the manufacture
of the Products supplied to Buyer under this
Agreement;
15
(ii) Buyer is given prompt written notice of such claim or
action and complete authority for the defense or
settlement of same, on the understanding that in all
events, Viasystems shall have the right at its own
expense to participate in such defense or compromise
through counsel of its own choosing;
(iii) Viasystems provides such information and assistance
in the defense or settlement of the claim as may be
reasonably requested by Buyer;
(iv) Viasystems complies with any settlement or court
order made in connection with any such claim; and
(v) Buyer shall not be responsible for any cost, expense
or compromise incurred or made by Viasystems without
Buyer's prior written consent, such consent not to be
unreasonably withheld.
Notwithstanding the foregoing, Buyer assumes no liability for
infringement claims with respect to any Product that is not
manufactured in accordance with the Specifications. This
section states the entire liability of Buyer with respect to
all claims, damages, demands and loss whatsoever from or in
respect to infringement, violation or misappropriation of any
intellectual or industrial property or other proprietary right
of any third person.
11. WARRANTY AND DISCLAIMER.
a) Viasystems warrants the products as delivered will conform to
the detailed, written Specifications. Viasystems warrants that
the Products as delivered will be free from defects in
workmanship for 12 months from the date of shipment. All
printed circuit boards are considered to be materials covered
by this warranty. Viasystems warrants to Buyer and its
customers that materials furnished will be new, merchandable,
free from material defect and workmanship and will conform to
and perform in accordance with the Specifications, drawings
and samples. These warranties extend to the future performance
of the Products and shall continue for the longer of one (1)
year after the Products are delivered to Buyer or such greater
period as may be mutually agreed upon by the parties in this
Agreement or Purchase Order.
b) Viasystems will replace, or at Buyer's options, credit or
refund to Buyer the full purchase price of all non-complying
Products within seven (7) days notice of such non-compliance.
Viasystems shall bear the risk of in-transit loss and damage
and shall prepay and bear the transportation charges for
Products returned under these warranty conditions.
c) In the event of a significant and exceptional defect in any
material supplied by parties other than Viasystems and used by
Viasystems in the manufacture of the Products (i) which is not
discernable through Viasystems' normal inspection practices,
and (ii) the resolution of which would incur significant costs
to
16
Viasystems above and beyond the normal cost of doing business,
Viasystems' warranty for defects in materials, including
associated replacement costs, is limited to 1% of the value of
the Purchase Order which relates to the affected parts. This
warranty limitation does not apply to routine replacement of
defective parts which can reasonably be considered as part of
the normal course of business for Viasystems and Buyer.
d) These warranties shall not apply to any Products which shall
have been repaired or altered except by Viasystems or which
shall have been subject to misuse, negligence, or accident,
except where such misuse, negligence or accident is the direct
or indirect result of the acts or omissions of Viasystems or
its agents. Viasystems shall not be liable for any personal
injury resulting directly from the Specifications for the
Products manufactured by Viasystems.
e) VIASYSTEMS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PRODUCTS MANUFACTURED UNDER THIS AGREEMENT, AND
DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION,
THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT.
f) In no event shall either party be liable for incidental,
consequential or special damage of any kind whether such
damage arises under a claim from infringement, a breach of
warranty or condition, breach of contract, negligence, strict
liability or any other kind of civil liability connected with
this Agreement.
12. TERM AND TERMINATION.
a) Term. This Agreement shall become effective on the date of
this Agreement and shall continue until March 31, 2003;
thereafter this Agreement shall be extended automatically at
the end of the initial term or subsequent terms for successive
additional one-year terms so long as Viasystems has
satisfactorily achieved pricing, delivery and quality
performance requirements (as reasonably established by the
parties) during the preceding twelve month period, failing
which the Buyer shall have the right to terminate this
Agreement upon giving a 120 day notice prior to the end of the
term then in effect.
b) Termination for Cause. Either party may cancel this Agreement
at any time if the other party breaches any term hereof and
fails to cure such breach within sixty (60) business days
after notice of such breach of if the other party shall be or
becomes insolvent, or if either party makes an assignment for
the benefit of creditors, or if there are instituted by or
against either party proceedings in bankruptcy or under any
insolvency or similar law or for reorganization, receivership
or dissolution.
c) Termination Liability. Neither party shall be liable in any
manner on account of the termination or cancellation of this
Agreement. The rights of termination and
17
cancellation as set forth herein are absolute. Both Buyer and
Viasystems are aware of the possibility of expenditures
necessary in preparing for performance hereunder and the
possible losses and damages which may occur to each in the
event of termination or cancellation. Both parties clearly
understand that neither shall be liable for damages of any
kind (including but not limited to special, incidental or
consequential damages) by reason of the termination or
cancellation of this Agreement.
d) Obligations Upon Termination. The termination or expiration of
this Agreement shall in no way relieve either party from its
obligation to pay the other any sums accrued hereunder prior
to such termination or expiration. Upon termination or
expiration, Buyer shall be responsible for the Products and
Inventory in existence at the date of such termination or
expiration in the same manner as for cancellation as set forth
in Section 6.a).
e) Survival of Certain Provisions. Notwithstanding anything to
the contrary in this Agreement, the following sections shall
survive termination of this Agreement: 1, 2, 6, 7, 8, 9, 10,
11, 12 and 13.
13. MISCELLANEOUS.
a) Amendments and Waivers. Any term of this Agreement may be
amended or waived only with the written consent of the parties
or their respective successors and assigns. Any amendments or
waiver effected in accordance with this Section 13a) shall be
binding upon the parties and their respective successors and
assigns.
b) Successors and Assigns. Neither Buyer nor Viasystems shall
assign any of its rights, obligations or privileges (by
operation of law or otherwise) hereunder without the prior
written consent of the other party, which shall not be
unreasonably withheld, provided that Viasystems may delegate
its obligations hereunder to any direct or indirect
wholly-owned subsidiary of Viasystems. Subject to the
foregoing, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement. Nothing in this
Agreement shall prevent Viasystems from having all or part of
the Products manufactured or Services rendered for Viasystems
by a third party subcontractor, without the consent of Buyer.
c) Governing Law. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in
accordance with the laws of the State of Missouri, without
giving
18
effect to principles of conflicts of law, and expressly
excluding the Convention for the International Sale of Goods.
d) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and
all of which together shall constitute one instrument.
e) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
f) Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon
receipt, when delivered personally or by courier, overnight
delivery service or confirmed facsimile, or forty-eight (48)
hours after being deposited in the regular mail as certified
or registered mail (airmail if sent internationally) with
postage pre-paid, if such notice is addressed to the party to
be notified at such party's address or facsimile number as set
forth below, or as subsequently modified by written notice.
g) Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties
agree to renegotiate such provision in good faith, in order to
maintain the economic position enjoyed by each party as close
as possible to that under the provision rendered
unenforceable. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such
provision, then (i) such provision shall be excluded from this
Agreement, (ii) the balance of the Agreement shall be
interpreted as if such provision were so excluded and (iii)
the balance of this Agreement shall be enforceable in
accordance with its terms.
h) Entire Agreement. This Agreement is the product of both of the
parties hereto, and constitutes the entire agreement between
such parties pertaining to the subject matter hereof, and
merges all prior negotiations and drafts of the parties with
regard to the transactions contemplated herein. Any and all
other written and oral agreements existing between the parties
hereto regarding such transactions are expressly cancelled.
i) Independent Contractors. The relationship of Viasystems and
Buyer established by this Agreement is that of independent
contractors, and nothing contained in this Agreement will be
construed (i) to give either party the power to direct and
control the day-to-day activities of the other, (ii) to
constitute the parties as partners, joint venturers, co-owners
or otherwise as participants in a joint or common undertaking,
or (iii) to allow either party to create or assume any
obligation on behalf of the other for any purpose whatsoever.
j) Force Majeure. If the performance of this Agreement or any
obligations hereunder is prevented, restricted or interfered
with by reason of fire or other casualty or accident, strikes
or labor disputes, war or other violence, any law, order,
19
proclamation, regulation, ordinance, demand and requirement of
any government agency, or any other act or condition beyond
the reasonable control of the parties hereto, the party so
affected upon giving prompt notice to the other parties shall
be excused from such performance during such prevention,
restriction or interference.
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The parties have executed this Agreement as of the date first
set forth above.
BUYER VIASYSTEMS:
SR TELECOM S.A.S. VIASYSTEMS, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------- ------------------------------
Name:_________________________ Name: Xxxxx X. Xxxxxxx
----------------------------
(print) (print)
Title:________________________ Title: Sr VP
Address:______________________ Address: 000 X. Xxxxxx, Xxxxx 000
______________________ Xx. Xxxxx, XX 00000
Fax Number:___________________ Fax Number: (000) 000-0000
SR TELECOM INC.
VP Finance ICFO
By: /s/ Pierre St-Arnaud
--------------------------
Name: Pierre St-Arnaud
------------------------
(print)
Title: President and CEO
Address:______________________
______________________
Fax:_________________________
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CONFIDENTIAL
