[LOGO FOR SMTC]
CONTRACT AGREEMENT
for
XPEED
June 07, 2000
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This Contract Agreement ("Agreement") is entered into this ____ day of June 2000
("Effective Date") by and between SMTC MANUFACTURING CORPORATION (SMTC), having
its place of business __________________ and XPEED Corp. having its place of
business at 00 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX 00000.
WHEREAS SMTC is engaged, inter alia, in the contract electronic
manufacturing and related services in North America, Europe and Mexico;
AND WHEREAS XPEED has agreed to purchase and SMTC has agreed to provide the
services and materials hereinafter described in connection with the manufacturer
of XPEED's products.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants hereinafter set forth and other good and valuable consideration, the
parties hereto agree with the other as follows:
ARTICLE 1.00 - DEFINITIONS
--------------------------
In this Agreement, unless the context otherwise requires;
1.1 "Assembly Charges" means the charges detailed in Schedules "1-5" to
this Agreement, including without limitation charges for board level assembly,
in-circuit test, functional testing, system level assembly, system level test
packaging and shipping FOB SMTC plant of manufacturer in San Jose, California of
all finished Product;
1.2 "Forecast" means the Product projections detailed in Schedule "2" to
this Agreement which shall be updated monthly by XPEED on or before the 15th of
each month;
1.3 "Inventory" means all components that are specifically required and
purchased on behalf of XPEED for the manufacture of Products.
1.4 "Master Xxxx of Material" means the items detailed in Schedules "1-5"
to this Agreement;
1.5 "Product(s)" means XPEED's products which shall be manufactured by
SMTC hereunder;
1.6 "Property" means any raw material, tooling and fixtures, or test
equipment provided by XPEED to SMTC or purchased by SMTC on XPEED's behalf in
connection with the assembly of the Product by SMTC;
1.7 "Services" means the provision by SMTC of all required materials as
set out in the Master Xxxx of Material together with all assembly services
including but not limited to board level assembly, in-circuit and functional
testing, packaging and shipping of finished product. Services will be rendered
as required by XPEED pursuant to one or more purchase orders to be issued by it
to SMTC pursuant to the provisions of this Agreement.
1.8 "Specifications" means the written specifications that XPEED shall
provide to SMTC for each Product, and any revisions thereof, which shall
include, without limitation, the Master Xxxx of Material, schematics, assembly
drawings, process documentation, test specifications, current revision number,
and XPEED's approved vendor list.
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ARTICLE 2.00 - SERVICES TO BE PROVIDED BY SMTC
----------------------------------------------
2.1 XPEED agrees to purchase the Services in accordance with the terms of
this Agreement. The Services shall be provided by SMTC in a professional,
workmanlike and timely manner during the term of this Agreement and any renewal
thereof.
ARTICLE 3.00 - TERM OF AGREEMENT
--------------------------------
3.1 The term of this Agreement shall be for a period of one (1) year from
the Effective Date unless terminated earlier pursuant to the provisions of
article 14.00 hereof. The term of this Agreement shall automatically be renewed
thereafter for successive terms of one (1) year terms unless or until either
Party notifies the other in writing at least 120 days prior to the expiration of
the initial term or other successive term that it does not wish to renew.
ARTICLE 4.00 - PRICING
----------------------
4.1 XPEED agrees to pay SMTC's prices then in effect for raw materials
required for the Product and all other aspects of the Services required in
connection therewith. Notwithstanding anything to the contrary in this
Agreement, unless otherwise agreed by the parties in writing, all prices quoted
by SMTC shall remain in effect for a period of three (3) months from the date of
written quotation, with update pricing provided to XPEED on a quarterly basis.
Such prices shall be exclusive of all applicable taxes. In the event that there
is a change in market conditions or pricing from suppliers in connection with
any raw materials to be purchased by SMTC, then either Party may request
amendment to any quoted price by giving written notice to the other Party
detailing the specific reasons for the requested pricing change. The Parties
shall then use their best efforts to attempt to negotiate, in good faith, any
required amendment to any such initially quoted price(s) to fairly reflect the
change in market conditions. If such an amendment is negotiated by the Parties,
an appropriate adjustment shall be made to the price for each unit of product
incorporating any devices subject to the price change from initial quoted
prices.
4.2 Terms of Payment are Net 30 days from date of invoice.
4.3 In the event that XPEED introduces or requires changes to the Product,
and if any such change results in an increase/decrease in the price of, or time
required for, the performance of any aspect of the work covered by this
Agreement, the Parties will negotiate, in good faith, an appropriate adjustment
to the contract pricing and or delivery schedule to reflect such changes. XPEED
shall be responsible for all costs related to obsolescence and additional set-up
costs relating to the any Product changes requested by XPEED; provided, however,
SMTC will make every effort to minimize such costs.
4.4 The Parties agree that SMTC allocates a material scrap/shrinkage
factor of 3% of the unit material cost. In the event that XPEED's design of
material components and/or required procurement of components from XPEED's
approved vendor list directly results in the normal yield characteristics of a
component and/or assembly process not being met, SMTC shall have the right to
invoice XPEED for any scrap and/or shrinkage cost in excess of the 1% level
and/or any additional process assembly costs, provided that (1) SMTC has
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provided XPEED with written reports indicating SMTC's detection of the fault(s)
which is attributable to XPEED's design and (2) SMTC has used its best efforts
to reduce material scrap and shrinkage to less than 3%.
4.5 It is understood and agreed that SMTC's quoted manufacturing charge is
based on standard deliveries of components available to the electronics
industry. In the event that certain components are on allocation or in the event
that additional costs are incurred in order to procure
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components to meet changes in XPEED's forecast that are beyond the agreed upon
allowable variance in scheduling, then such additional costs shall be invoiced
to XPEED. In addition, XPEED shall be responsible for any additional costs
resulting for engineering changes made by XPEED, replacement of suppliers by
XPEED or special transportation of Products requested by XPEED, including
without limitation, all applicable freight charges, duties, taxes and brokerage
fees, and XPEED shall indemnify and save harmless SMTC in connection with such
costs. SMTC shall keep XPEED advised of any additional costs that may arise from
the occurrence of such events and shall obtain XPEED's written approval prior to
incurring any such additional costs.
4.6 Both SMTC and XPEED shall proactively plan and implement cost
reduction programs, including cost reductions to the raw material, product or
assembly processes. XPEED will receive one hundred percent (100%) of all
demonstrated cost reductions initiated by XPEED in the form of an immediate
reduction in the pricing charged to XPEED for SMTC's Services. Upon
implementation of any cost reductions which have been initiated by SMTC and
approved by XPEED, SMTC will receive fifty percent (50%) of the demonstrated
cost reduction for a period of three (3) months and the other fifty percent
(50%) of the demonstrated cost reduction will be applied as a reduction to the
amount invoiced to XPEED for SMTC's Services. After such three (3) month period,
one hundred percent (100%) of the cost reduction will be applied as a reduction
to the pricing charged to XPEED for SMTC's Services. XPEED will own all right,
title, and interest to any Product designs or Specifications regardless of
whether they were initiated or conceived by XPEED or SMTC. SMTC will execute any
additional documentation reasonably necessary for XPEED to secure and maintain
intellectual property rights in such Product designs or Specifications.
ARTICLE 5.00 - PROTECTION OF PROPRIETARY TECHNOLOGY AND TRADEMARKS; LICENSE.
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5.1 SMTC recognizes and agrees that the Products may incorporate certain
proprietary information developed and owned or licensed by XPEED, including,
without limitation, software, source and object codes ("Product Technology").
All Product Technology is and shall remain the property of XPEED. SMTC
undertakes that it will not, directly or indirectly, manufacture, process,
label, package, supply, or sell, any Product, or other products utilizing
Product Technology, except as contemplated by the terms of this Agreement. SMTC
further agrees not to carry on or engage in, directly or indirectly, on its own
or through any individual, partnership, company, association, or entity, any
business or other activity utilizing Product Technology.
5.2 For each Product, subject to the terms and conditions of this
Agreement, XPEED grants SMTC a non-transferable, non-exclusive, royalty-free
license to use the Specifications solely to manufacture the Products and
otherwise perform its obligations hereunder.
ARTICLE 6.00 - OWNERSHIP OF PROPERTY
------------------------------------
6.1 The Parties acknowledge and agree that the Property is owned by XPEED
and shall not be disposed of in any way without XPEED prior written
authorization. SMTC agrees to act in a commercially reasonable and prudent
manner in its handling and storage of XPEED Property so as to minimize any loss
or damage thereto. SMTC further agrees to segregate the Property from other
materials in SMTC's possession and ensure that at all times the Property is
clearly identified as being the Property of XPEED. The Parties acknowledge and
agree that the Property consigned by XPEED to SMTC for the purpose of SMTC
fulfilling the Services is to be independently insured by XPEED in the event
that SMTC's general insurance does not cover a claim for any reason and/or
circumstance.
6.2 XPEED shall have the right upon reasonable notice to inspect the
premises of SMTC to ensure that the requirements of this Agreement, including,
without limitation, paragraph 5.1 above, are being complied with by SMTC at all
times.
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ARTICLE 7.00 - LIABILITY FOR INVENTORY
--------------------------------------
7.1 The inventory held by SMTC on behalf of XPEED to meet the finished
product volumes contained in the forecast, that are defined as customer specific
or Non-Cancelable or Non-Returnable (NCNR), shall be XPEED's responsibility in
the event of any variation or termination of this Agreement. XPEED further
agrees that it shall be responsible for all inventory that the Parties mutually
agree in writing to designate as non-cancellable and non-returnable as listed in
Schedule 4. XPEED also acknowledges and agrees that at the end of the life of a
Product or upon termination of this Agreement (other than by XPEED pursuant to
section 14.1), it shall be liable that for any inventory which the Parties agree
should be deemed excess and obsolete due to Minimum Purchase Quantities (MPQ)
set by various component suppliers or due to the requirements necessary for
SMTC's automated manufacturing processes. A list detailing the NCNR, obsolete,
excess and/or customer specific material will be provided to XPEED by SMTC on a
monthly basis. SMTC will at all times try to minimize the level of Inventory
necessary to support the manufacture of the Products. SMTC shall obtain XPEED's
written authorization prior to making any extraordinary purchases which SMTC
believes is necessary (i.e., long lead time, allocation, supplier imposed,
etc.).
ARTICLE 8.00 - VARIATIONS TO MASTER XXXX OF MATERIAL
----------------------------------------------------
8.1 The parties agree that the parts and materials on the Master Xxxx of
Materials list shall be subject to amendment from time to time as a result of
engineering changes, introduction of new designs and obsolescence of prior
designs as determined by XPEED and that SMTC only manufacture the Products using
components obtained from vendors included on the XPEED approved vendor list.
ARTICLE 9.00 - LIMITED WARRANTY AND LIMITATIONS OF DAMAGES
----------------------------------------------------------
9.1 SMTC warrants that the Products will conform to XPEED's applicable
Specifications and will be free from defects in workmanship for a period of one
(1) year from the date of delivery to XPEED. Components and materials are
warranted for one hundred (100) days or to the same extent that the original
manufacturer warrants the materials, whichever is longer. This warranty does not
apply to (a) materials consigned or supplied by XPEED to SMTC; (b) defects
resulting from XPEED's design of the Products; or (c) Product that has been
abused, damaged, altered or misused by any person or entity after title passes
to XPEED. Notwithstanding anything else in this Agreement, SMTC assumes no
liability for or obligation related to the performance, accuracy,
specifications, failure to meet specifications or defects of or due to tooling,
designs or instructions produced or supplied by XPEED. Upon any failure of a
Product to comply with the above warranty, SMTC's sole obligation, and XPEED's
sole remedy, is for SMTC, at its option, to promptly repair or replace such unit
and return it to XPEED freight pre-paid. In order to obtain performance under
this warranty, the XPEED shall deliver the Product to SMTC at SMTC's expense.
SMTC shall be responsible for any delivery costs associated with the return of
the Product from XPEED's location or XPEED's end customer's location. Under this
warranty, SMTC will make every effort to provide XPEED with repaired or replaced
Product within five (5) days of receipt of a defective Product and a failure
analysis report within ten (10) days of receipt of a defective Product.
9.2 SMTC shall provide board level assembly and testing will be performed
by SMTC in accordance with specifications and procedures to be agreed upon by
the Parties. SMTC further warrants that it shall comply with all applicable laws
and regulations in providing the Services.
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9.3 SMTC represents and warrants that it will manufacture the Products in
ISO 9002 certified facilities and notify XPEED should there be any change in the
certification status. The parties shall identify a standard quality reporting
method of quality data and process response mechanisms which will be provided to
XPEED on an ongoing basis.
9.4 SMTC represents and warrants that it has been granted or issued all
permits required for the storage, handling, and disposal of all materials or
hazardous waste used by SMTC in the performance of this Agreement. SMTC has
implemented programs necessary to monitor and maintain all required licenses and
permits and to prevent releases of the material to the environment. SMTC's
employees shall have been trained to properly, safely, and legally (in
accordance with all applicable local, state, and federal laws and regulations)
handle hazardous material and wastes. SMTC shall notify XPEED in writing,
immediately upon discovery of any regulatory action taken or initiated against
SMTC, whether or not such action relates to or arises out of this Agreement,
that may impact SMTC's ability to deliver the Products. Regulatory compliance
and management of SMTC's facilities and processes is strictly the responsibility
of SMTC and XPEED has no express or implied responsibility for the same.
9.5 It is understood by and between the parties that there are no express
warranties in this Agreement other than the warranties provided in Section 8.1,
above. SMTC MAKES NO WARRANTY OF MERCHANTABILITY OF THE PRODUCTS OR OF THE
FITNESS OF THE PRODUCTS FOR ANY PARTICULAR PURPOSE.
9.6 UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR SPECIAL DAMAGES ARISING
OUT OF A BREACH OF THIS AGREEMENT OR ANY WARRANTY, EXPRESS OR IMPLIED UNDER THIS
AGREEMENT.
ARTICLE 10.00 - SCHEDULE OF DELIVERIES / ORDER REQUIREMENTS / FORECAST
----------------------------------------------------------------------
10.1 During the term of this Agreement, XPEED provide sixty (60) days of
releases in the form of Purchase Orders on or prior to the fifteenth
(15/th/) day of each month, which will set forth specifics as to
required quantities and delivery dates. Upon acceptance and
acknowledgement of XPEED's Purchase Orders by SMTC, SMTC will be
obligated to manufacture and deliver to XPEED, and XPEED will be
firmly and irrevocably obligated to buy from SMTC the Products set
forth in the Purchase Orders. Purchase order and Forecast revisions
are subject to the Time Fences/Allowable Quantity Variations
identified in the chart below. Upon acceptance and acknowledgment of
XPEED's Purchase Orders by SMTC, XPEED will be firmly and irrevocably
obligated to buy from SMTC and SMTC will be obligated to manufacture
and deliver to XPEED the Products set forth in the Purchase Orders.
Purchase Order and Forecast revisions are subject to the Time
Fences/Allowable Quantity Variations identified in the chart below. At
the completion of manufacturing the assembly SMTC will hold finished
goods for no more than fifteen (15) days beyond a schedule that is
within the time fences that are non-cancelable. SMTC will then either
invoice XPEED and ship the goods or will make arrangements to invoice
and store/hold the finished goods on behalf of XPEED
10.2 On or prior to the fifteenth (15th) day of each month, XPEED will
additionally provide a rolling Forecast of its estimated monthly
requirements covering the six (6) months beyond the issued Purchase
Orders.
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ALLOWABLE VARIANCE FROM FORECAST
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Month after Date of Allowable % Cancellable % Reschedule Maximum
Forecast Quantity Increase Reschedule Date
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One 20% 0% 0% 0
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Two 50% 25% 50% 30 days
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Three 50% 50% 50% 60 days
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Four 75% 50% 75% 60 days
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Five 100% 100% 100%
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Six 100% 100% 100%
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In the event that XPEED requires Product quantity increases to the purchase
order schedule, SMTC shall use its best efforts to procure/pull-in deliveries of
components to meet the increased quantity demands. SMTC will manage materials in
a manner which would enable SMTC to support a ten percent (10%)) to twenty
percent (20%) upside in XPEED's forecast.
10.2 In the event that XPEED issues any Engineering Change Orders (ECO) or
any similar orders or notices requiring any change in the Products listed in
XPEED's purchase orders that effects the agreed upon delivery date, SMTC shall
have the right to invoice and ship or invoice and hold the finished goods, prior
to completion of the requested ECO or change notices, fifteen (15) days after
the original schedule date. All assembled and work in process product requiring
treatment by this ECO will be considered rework. Any rework charges will be
negotiated between XPEED and SMTC and executed upon receipt of a rework purchase
order from XPEED.
ARTICLE 11.00 - TECHNICAL INFORMATION AND ASSISTANCE
----------------------------------------------------
11.1 XPEED agrees to provide SMTC with relevant information concerning
XPEED's current financial information upon request; provided that SMTC shall not
make such a request more than once per calendar quarter. SMTC is to use this
information for the sole purpose of an on-going financial review of the
operations of XPEED and cannot convey directly or indirectly any of this
information without the approval of XPEED.
11.2 The Parties agree to mutually advise each other from time to time
without charge with respect to all technical information relating to the
Product.
ARTICLE 11.00 - ASSIGNMENT
--------------------------
11.1 This Agreement shall not be assigned by either Party without first
receiving the written consent of the other Party, which shall not be
unreasonably withheld.
ARTICLE 12.00 - INDEMNIFICATION
-------------------------------
12.1 Patents, Copyrights, Trade Secrets, Other Proprietary Rights.
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(a) SMTC shall use commercially reasonable efforts to procure from vendors
of components and materials indemnity protection extending to XPEED, including
the defense of actions and payment of all claims, costs, damages, judgments and
reasonable attorneys' fees resulting from or arising out of any alleged and/or
actual infringement or other violation of any patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, copyrights, trade
secrets, proprietary rights and processes or other such rights with respect to
all components and materials procured by SMTC under this Agreement.
(b) In the event that SMTC is unable to secure the indemnity contemplated
under Section 12.1 for any part selected by SMTC, SMTC shall notify XPEED and
allow XPEED to participate in discussions with the part supplier in question
with regard to securing such indemnification. If the indemnification is still
not available after this process, XPEED may then approve the part without
indemnification or ask that SMTC source the part elsewhere. XPEED will be
responsible for any change in price of the part in question.
12.2 Product Liability.
-----------------
(a) SMTC Indemnification. SMTC hereby accepts responsibility for, and
shall defend, indemnify, and hold harmless XPEED, its officers, directors,
employees, agents, and shareholders against, any liabilities (including, without
limitation, costs and expenses of litigation, reasonable attorneys' fees,
settlements, and damages) arising from (a) workmanship defects in the Products
supplied by SMTC and (b) SMTC's failure to manufacture the Products in
accordance with Specifications. XPEED shall promptly notify SMTC of any claims
related to such indemnification and no such claim shall be settled without
SMTC's prior written consent.
(b) XPEED Indemnification. XPEED hereby accepts responsibility for, and
shall defend, indemnify, and hold harmless SMTC, its officers, directors,
employees, agents, and shareholders against, any liabilities (including, without
limitation, costs and expenses of litigation, reasonable attorneys' fees,
settlements, and damages) arising from defects in the Specifications or the
design of the Products. SMTC shall promptly notify XPEED of any claims related
to such indemnification and no such claim shall be settled without XPEED's prior
written consent.
ARTICLE 13.00 - CONFIDENTIALITY
-------------------------------
13.1 Confidential Information. Information of XPEED including, but not
------------------------
limited to, trade secrets, know-how, inventions (whether patentable or not),
ideas, improvements, materials, data, specifications, drawings, processes,
results, and formulae and all other business, technical and financial
information that is deemed confidential by XPEED (Confidential Information). In
particular, but without limitation, the Specifications and the Product
components delivered to SMTC by XPEED shall be the Confidential Information of
XPEED. SMTC shall, at all times, both during the term of this Agreement and
thereafter for a period of three (3) years, keep in confidence all of XPEED's
Confidential Information received by it. SMTC shall not use the Confidential
Information of XPEED other than as expressly permitted under the terms of this
Agreement or by a separate written agreement. SMTC shall take reasonable steps
to prevent unauthorized disclosure or use of XPEED's Confidential Information
and to prevent it from falling into the public domain or into the possession of
unauthorized persons. SMTC shall not disclose Confidential Information of XPEED
to any person or entity other than its officers, employees, consultants and
subsidiaries who need access to such Confidential Information in order to
perform its obligations under this Agreement and who have entered into written
confidentiality agreements which protect the Confidential Information of XPEED.
13.2 Exceptions to Confidential Information. Confidential Information will
--------------------------------------
not include any information that: (a) becomes known to the general public
without fault or breach on the part of SMTC; (b) XPEED customarily provides to
others without restriction on disclosure; (c) SMTC obtains from a third
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party without breach of a nondisclosure obligation and without restriction on
disclosure; (d) is already known to SMTC prior to its disclosure XPEED; or (e)
must be disclosed by SMTC by statutory or regulatory provision, or court order,
provided, however, that SMTC provides notice thereof to XPEED, together with the
statutory or regulatory provision or court order on which such disclosure is
based, as soon as practicable prior to such disclosure.
ARTICLE 14.00 - RIGHT TO TERMINATE
----------------------------------
14.1 In the event that either Party is in breach of any of its material
obligations under this Agreement then the other Party may give written notice of
such breach to the defaulting Party and request remedy of same. If the Party in
breach fails to remedy said breach within thirty (30) days after the date of
notice then this Agreement may be terminated immediately by written notice of
termination given by the complaining Party. Notwithstanding the foregoing, any
breach of Article 14 ("Confidentiality") above will be deemed a material breach
of this Agreement that cannot be cured and the non-breaching Party shall have
the right to terminate this Agreement immediately by providing written notice of
termination to the other Party.
14.2 This Agreement may also be terminated by either Party upon one hundred
and twenty (120) days written notice to the other.
14.3 Notwithstanding the provisions contained in sections 14.1 and 14.2
either Party may terminate this Agreement by written notice to take effect
immediately upon receipt thereof by the other Party in the event that the Party
receiving notice has become bankrupt or insolvent or has made an assignment for
the benefit of creditors, or a receiver is appointed for its business or a
voluntary or involuntary petition of bankruptcy is filed, or proceedings for the
reorganization of the Party are instituted; or has attempted to assign any part
of the rights granted to it under this Agreement without prior written consent
of the other Party.
ARTICLE 15.00 - EFFECT OF TERMINATION
-------------------------------------
15.1 Upon termination of this Agreement:
(a) SMTC shall fulfill its obligations as contained in paragraphs 15.1
(b), (c) and (d) and XPEED shall then immediately assume responsibility for the
payment of all XPEED material, work in process, finished Product and all other
outstanding XPEED inventory then being held by SMTC, including the inventory
being held pursuant to section 6.1 hereof together with all other monies due and
owing pursuant to this Agreement;
(b) The Parties shall facilitate the transfer of all of XPEED Property
then being held by SMTC to XPEED as contained in paragraph 15.1 (a) including
all documentation relating thereto;
(c) SMTC shall immediately return all original design drawings, copies of
drawings, Specifications, written descriptions, and other recorded technical
information furnished to SMTC by XPEED pursuant to this Agreement; and
(d) Each Party shall cease to use the documentation and information
provided to it by the other Party pursuant to the provisions of this Agreement.
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15.2 The following Articles shall survive termination of this Agreement:
5.1, .6.1,12.1, 12.2, 13.1, 13.2, 15.1, 15.2 and 18.1-18.8.
ARTICLE 16.00 - FORCE MAJEURE
-----------------------------
16.1 None of the Parties shall be liable for any failure or omission in the
performance of any provision of this Agreement, if failure is caused by or shall
arise directly or indirectly, from acts of God, Government Orders, legislation,
or regulations, embargoes, fire, storm, floods, strikes, labor trouble, wars,
riots, failure of carriers or suppliers to transport or furnish materials or
other contingencies beyond reasonable control of the Parties. SMTC shall,
however, give prompt notice to XPEED in the event of the occurrence of any of
the above contingencies that SMTC expects will delay the delivery of the
Services or any part thereof in a timely manner. Any notice from SMTC shall
include the best estimate of SMTC as to the expected period of delay. Upon
receipt of such notice or upon XPEED becoming aware of the occurrence of any of
the above contingencies which XPEED reasonably expects will delay the delivery
of the Services or any part thereof in a timely manner, XPEED shall be free to
obtain some or all of the Services without delay and without penalty that are
expected to be the subject of delay from other suppliers during the said period
notwithstanding its obligations arising pursuant to this Agreement. In such
circumstances, SMTC shall co-operate with XPEED and any new suppliers to achieve
a smooth, effective and expeditious transition and SMTC shall deliver any
Property as directed by XPEED during the period of delay. SMTC shall be entitled
to give notice to XPEED following resolution of any outstanding difficulties
resulting from any such contingency in respect of which it has given notice, or
that XPEED became aware of, that SMTC is then in a position to provide the
affected Services in a timely manner in accordance with the provisions of this
Agreement. In any event, XPEED shall then deal with SMTC in connection with the
provision of the affected Services commencing on the (30th) day following
receipt of such notice from SMTC.
ARTICLE 17.00 - ARBITRATION
---------------------------
Except matters relating to collection of monies owed by either party or the
other, pricing of items, or compliance with specifications, Buyer and Supplier
agree that any dispute involving any matter arising under the termination of
this Agreement shall be resolved by biding arbitration held in Santa Xxxxx
County, California, in accordance with the rules of the American Arbitration
Association. Such arbitration shall commence within six (6) months of said
dispute. To the extent that the dispute is not subject to resolution through
arbitration, Buyer and Supplier hereby agree that a lawsuit may only be brought
in the appropriate Federal or California State Court located in Santa Xxxxx
County, California, having jurisdiction over the subject matter of the dispute
or matter. Buyer and Supplier hereby consent to the exercise of personal
jurisdiction by any court with respect to any such proceeding.
ARTICLE 18.00 - NOTICE
----------------------
17.1 Any notice required or permitted to be given for the purposes of this
Agreement shall be in writing and shall be sufficiently given if personally
delivered to an officer of the Party notice is being given to or sent by
facsimile, courier or registered letter, postage prepaid and:
(a) if to SMTC, addressed to it at:
SMTC Manufacturing Corporation
0000 Xxxxx Xxxx Xxxx
00
Xxx Xxxx, XX 00000
facsimile - (000) 000-0000
(b) if to XPEED, addressed to it at:
XPEED
00 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile - (000) 000-0000
and such notice shall be deemed to have been given on the day it was personally
delivered or facsimiled or on the fifth business day following which it was
mailed; provided, however, if at the time of mailing of any such notice
thereafter prior to delivery, normal postal service is interrupted through
strikes or other similar irregularities then such notice shall be deemed to have
been received on the fifth day following the resumption of normal mail service.
Any Party may from time to time change its address for the purpose of receipt of
any such notices by giving written notice of such change to the other Party in
the manner described.
ARTICLE 18.00 - GENERAL PROVISIONS
----------------------------------
18.1 Nothing contained in this Agreement shall constitute a joint venture
or partnership between the Parties hereto.
18.2 Time shall be the essence of this Agreement and of every part thereof.
18.3 Whenever the singular or masculine is used in this Agreement they
shall mean and include the plural, neutral and feminine or vice versa as the
context of this Agreement shall require.
18.4 The headings and marginal descriptions of all articles herein are
inserted for convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
18.5 The Parties hereto shall and will execute such further and other
papers and documents and do and perform and cause to be done and performed such
further acts and things as necessary in order to give full effect to this
Agreement and to every part thereof.
18.6 This Agreement shall be governed by and construed in accordance with
the laws of the State of California. The Parties agree that the courts of
California shall have sole and exclusive judicial jurisdiction to determine any
matter arising under this Agreement that cannot be resolved by the Parties
directly. It is agreed and understood that any purchase order or other document
related to the Services issued by XPEED to SMTC during the term of this
Agreement shall be subject to and governed by the terms of this Agreement.
18.7 This Agreement constitutes the entire agreement between the Parties
and except as herein stated and in the instruments and documents to be executed
and delivered pursuant hereto, contains all the representations and warranties
of the respective Parties. There are no verbal statements, representations,
warranties and undertakings or agreements between the Parties. This Agreement
may not be amended or modified in any respect except by written instrument
signed by the Parties.
18.8 This Agreement shall be binding upon and shall ensure to the benefit
of the Parties hereto, their permitted successors and assigns.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the
day, month and years set out below.
11
SMTC MANUFACTURING CORPORATION
------------------------------
Per:
[illegible]
-----------------------------------
(Authorized Signing Officer)
7th day of June, 2000
XPEED Corp.
----------
Per:
/s/ Xxxxxxx Xxxxxxx
------------------------------------
(Authorized Signing Officer)
7th day of June, 2000
12
