Amendment No. 5 to Supplier Partnering Agreement
NVE and Pacesetter
Confidential
This Amendment No. 5 (“Amendment No. 5”) to Supplier Partnering Agreement dated January 1, 2006 (as previously amended, the “Agreement”) by and between Pacesetter, Inc., 00000 Xxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000-0000 (“Buyer”), and NVE Corporation, 00000 Xxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, XX 00000-0000 (“Seller”), is executed by and between Buyer and Seller. Buyer and Seller hereby agree to amend the Agreement as follows:
NVE and Pacesetter Confidential
NVE and Pacesetter Confidential
NVE and Pacesetter Confidential
NVE and Pacesetter Confidential
NVE and Pacesetter Confidential
IN WITNESS OF THIS AGREEMENT, the parties have signed below by their authorized officers, effective as of the later date below:
NVE and Pacesetter Confidential
NVE and Pacesetter Confidential
Amendment No. 5 to Supplier Partnering Agreement
This Amendment No. 5 (“Amendment No. 5”) to Supplier Partnering Agreement dated January 1, 2006 (as previously amended, the “Agreement”) by and between Pacesetter, Inc., 00000 Xxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000-0000 (“Buyer”), and NVE Corporation, 00000 Xxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, XX 00000-0000 (“Seller”), is executed by and between Buyer and Seller. Buyer and Seller hereby agree to amend the Agreement as follows:
| 1. | Xxxxxxx 0, Xxxx
of Agreement, is hereby deleted and replaced with the following: |
| 1. | Term of Agreement.
This Agreement begins on January 1, 2006, and will remain in force through January
1, 2021, unless terminated earlier. |
| 2. | The following
is hereby added to the end of Section 2, Purchase orders, of the Agreement,
as follows: |
| Except as set
forth below in this Section 2, Buyer’s responsibility for purchases under
this Agreement is limited to purchase orders placed by Buyer. In the event that
termination of the Agreement is by Buyer pursuant to Section 11.1, then Buyer
shall (at its sole option) either (i) purchase from Seller all actual Seller inventory
up to the required Seller inventory levels and all work-in-progress and material
created or purchased due to Buyer’s inventory requirements within 180 days
of such termination; or (ii) purchase the actual Seller inventory and require
that Seller process to completion (and then purchase the completed inventory from
Seller) additional inventory up to the required Seller inventory amounts established
pursuant to Attachment 1 of Agreement. Except as otherwise expressly provided
in this Agreement, Buyer shall have no liability or responsibility for the cost
of any actual Seller inventory or other materials or labor incurred by or on behalf
of Seller prior to, during, or after the term of this Agreement. |
| 3. | Prices
shall be negotiated in good faith effective January 1 each calendar year in the
amended term of this Agreement. Section 6.2 of the Agreement is hereby amended
so that the price adjustment provision contained in the third bullet of Section
6.2 applies to each year during the term of this Agreement as amended. |
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| 4. | The
following new Section 10, Inspections / Compliance with Law, and Section 11, Termination,
are hereby added to the Agreement as follows, with the remaining Section 10 of
the Agreement renumbered accordingly including any references thereto: |
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| 10. | Inspections
/ Compliance with Law. |
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| 10.1 |
During the Term, Buyer and any affiliate of Buyer shall have the right, during normal business hours and upon | |||
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| reasonable
prior notice, to have employees or representatives conduct compliance inspections
or other inspections, audits and investigations to ensure that Seller’s handling,
production, testing, storage and shipping of product complies with all applicable
Laws including, without limitation, QSR; provided, however, that such inspection,
audit or investigation shall not unreasonably interfere with the operations at
the production facility. Seller shall cooperate in any such inspection, audit
or investigation conducted by Buyer, any of its affiliates or designees. |
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| 10.2 | Further,
upon reasonable prior notice to Seller, Buyer shall also have the right to: (i)
observe and inspect Seller’s manufacture of the product and the manner in
which Seller conducts quality control of the products, (ii) inspect Seller’s
plant and records relating to Seller’s quality and other controls related
to its manufacture of the product, and (iii) review all batch reports, device
history files and related documents. Seller shall make such books and records
available to Buyer and permit Buyer to make extracts from or copies of such books
and records for such purposes. |
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| 10.3 | Seller
shall notify Buyer immediately upon receipt of any notice of inspection by any
Governmental Authority related to any aspect of the manufacture of the product
and shall provide Buyer with a copy of the results of any such inspection or observation
(whether oral or written) promptly after Seller’s receipt thereof. In addition,
Buyer shall have the right to have a representative present at any such portion
of the inspection involving the product. |
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| 10.4 | Seller
shall, in performing its obligations under this Agreement, comply with all applicable
existing and future laws, regulations, and acts of any applicable government,
including the United States, (“Laws”) and with the highest ethical standards
of business conduct, including without limitation the United States Foreign Corrupt
Practices Act of 1977 as amended and the Anti-Boycott Laws, including without
limitation the Export Administration Act and the Ribicoff Amendment to the 1976
Tax Reform Act (TRA) as well as applicable country of origin marking requirements
under applicable Laws. Further, Seller shall take no action on behalf of Buyer,
which would cause Buyer to be in violation of applicable Laws. Specifically, Seller
agrees not to make, directly or indirectly, any offer, |
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| payment,
promise to pay or authorization of the payment of any money, gift or other thing
of value to any person who is an official, agent, employee or representative of
any government, including the United States or any ministry, agency, office, department
or other instrumentality thereof that is a customer of Seller or Buyer, or of
any private customer, or to any other person while knowing or having reason to
believe that all or any portion of such money, gift or thing of value would or
will be offered, given or promised, directly or indirectly, to any such official,
agent, employee, representative or private customer in violation of the laws,
regulations and acts described in this Section. Upon request, or should Buyer
ever become the subject of an audit or investigation by a US, European or other
governmental authority, including under any anti-boycott regulations, anti-bribery
legislation, or related export legislation, the Seller agrees to cooperate fully
with Buyer in connection with such investigation and to provide such information
and records to Buyer with respect to Seller’s activities under this Agreement
as may be reasonably requested by Buyer. |
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| 10.5 | Seller
continuously monitors the materials it uses in the manufacturing process and manufacturing
process controls for compliance with the European Union Registration, Evaluation,
Authorization and Restriction of Chemical Substances (Directive 2006/1907/EC)
(“REACh”), and shall provide (at no cost) a declaration that states
Seller is REACh compliant to Buyer upon written request. Seller certifies that
the materials incorporated into the Component(s): (i) comply with the laws regarding
slavery and human trafficking of the country or countries in which it does business
and that it is also in compliance with all applicable laws (including but not
limited to California Civil Code Section 1714.43) and (ii) do not contain any
“conflict minerals” originating from the Democratic Republic of the
Congo or an adjoining country as more fully set forth in Section 1502 (et seq.)
of the Xxxx-Xxxxx Act and corresponding regulations (collectively, the “Xxxx-Xxxxx
Act”). Seller further agrees to provide (at no cost) an appropriate declaration
and information to Buyer upon written request in order to assist Buyer with reporting
and compliance pursuant to the Xxxx-Xxxxx Act. |
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| 10.6 | Buyer hereby incorporates
by reference any Federal Acquisition Regulations (FAR) clauses at 48 CFR Part
52 |
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| that are in effect
as of the date of this Agreement as well as any Defense Federal Acquisition Regulations
(DFARS) clauses at 48 CFR Part 252, as applicable, including the clauses required
to be flowed down pursuant to FAR 52.212-5(e)(1) and FAR 52.244-6. Seller also
represents and warrants that it complies with all regulations relating to Small
Business Subcontracting, including FAR 52.219-8. |
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| 10.7 | Buyer
is an equal opportunity employer and federal contractor or subcontractor. Consequently,
the parties agree that, as applicable, they will abide by the requirements of
41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws
are incorporated herein by reference. These regulations prohibit discrimination
against qualified individuals based on their status as protected veterans or individuals
with disabilities, and prohibit discrimination against all individuals based on
their race, color, creed, religion, sex, national origin, marital status, age,
citizenship, sexual orientation, gender identity and/or gender expression or status
with respect to public assistance. These regulations require that covered prime
contractors and subcontractors take affirmative action to employ and advance in
employment individuals without regard to race, color, creed, religion, sex, national
origin, marital status, age, citizenship, sexual orientation, gender identity
and/or gender expression or status with respect to public assistance, protected
veteran or disability status. The parties also agree that, as applicable, they
will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix
A to Subpart A), relating to the notice of employee rights under federal labor
laws. |
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| 11. | Termination.
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| 11.1 | Buyer
may terminate this Agreement at any time upon sixty (60) days’ prior written
notice to Seller. |
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| 11.2 | This Agreement may be terminated by either party if: |
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| (a) | the other party
is in material breach of any material term or obligation of this Agreement and
such material breach is not cured within thirty (30) days after receipt of written
notice of such material breach from the terminating party; or |
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| (b) | the other party
is adjudicated insolvent, has a receiver of its assets or property appointed,
or files or has filed against it a petition in bankruptcy and such breach is not
cured within thirty (30) days of such event; or |
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| (c) | the other party
ceases or threatens to cease to carry on all or any substantial part of its business
that is relevant to this Agreement. |
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| 11.3 | The
parties’ obligations pursuant to Sections 2, 6, and 8-12 shall survive termination
or expiration of this Agreement. |
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| 11.4 | Any termination
shall be without prejudice to any other right or remedy afforded to either party
under this Agreement and will not affect any rights or obligations, which have
arisen prior to the date of such termination. |
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| 5. | The product
proprietary technology placed in escrow by Seller pursuant to Attachment 4 of
the Escrow Agreement is hereby deleted in its entirety and superseded and replaced
by new Attachment 4 attached to this Amendment No. 5 as Exhibit A and incorporated
by reference to the Agreement. |
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| 6. | Additional
product proprietary technology will be placed in escrow by Seller pursuant to
Section 10.10 of the Agreement within 120 days of execution of this Amendment
No. 5 and shall include the materials identified in new Attachment 5 to the Escrow
Agreement attached to this Amendment No. 5 as Exhibit B and incorporated by reference
to the Agreement. The parties agree to cooperate to update the Escrow Agreement
to incorporate the revisions and additions set forth in Attachments 4 and 5 within
120 days of the execution of this Amendment No. 5. |
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| 7. | Except as
expressly amended above, all other terms and conditions of the Agreement as amended
will continue in full force and effect without change or modification. |
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IN WITNESS OF THIS AGREEMENT, the parties have signed below by their authorized officers, effective as of the later date below:
| PACESETTER, INC. | NVE CORPORATION |
| |
|
| By: /s/ XXXX XXXXXXXXXXX | By: /s/ XXXXXX X. XXXXX |
| Xxxx
Xxxxxxxxxxx Vice President Process Development and Infrastructure Date: 4/20/16 |
Xxxxxx
X. Xxxxx President & CEO Date: 4/18/16 |
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Exhibit A
(ATTACHMENT 4)
(ATTACHMENT 4)
| Document Number | Document Title | Notes: |
| 1 | Key Equipment Needed to Build St. Jude Die |
|
| 2 | Multilayer Blank Wafer Process - Materials Checklist | |
| 3 | NVE Specification 12003 | |
| 4 | NVE Specification 12081 | |
| 5 | NVE Specification 12086 | |
| 6 | NVE Specification 12084 | |
| 7 | NVE Specification 12082 | |
| 8 | NVE Specification 12092 | |
| 9 | NVE Specification 12088 | |
| 10 | NVE Specification 12068 | |
| 11 | NVE Specification 12065 | |
| 12 | NVE Specification 12085 | |
| 13 | NVE Specification 12051 | |
| 14 | NVE Specification 12053 | |
| 15 | NVE Specification 12052 | |
| 16 | NVE Specification 12055 | |
| 17 | NVE Specification 12054 | |
| 18 | NVE Specification 12039 | |
| 19 | NVE Specification 12042 | |
| 20 | NVE Specification 12073 | |
| 21 | NVE Specification 12043 | |
| 22 | NVE Specification 12044 | |
| 23 | NVE Specification 12059 | |
| 24 | NVE Specification 12049 | |
| 25 | NVE Specification 12058 | |
| 26 | NVE Specification 12057 | |
| 27 | NVE Specification 12062 | |
| 28 | NVE Specification 12061 | |
| 29 | NVE Specification 12063 | |
| 30 | NVE Specification 12066 | |
| 31 | NVE Specification 12218 | |
| 32 | NVE Specification 12275 | |
| 33 | NVE Specification 12298 | |
| 34 | Runcard 8001 | |
| 35 | Runcard 8011_E | |
| 36 | NVE Specification 10311 | |
| 37 | NVE Specification 6201 | |
| 38 | NVE Specification 06311 | |
| 39 | Note on Letters of Authorization |
|
| 40 | NVE SpecificationCS.BA010_K | Updated May 2015; will be updated in May 2016 with BA012 Information |
| 41 | NVE Specification SN09001_M | Updated May 2015 |
| 42 | NVE Specification SN09003_C | Updated May 2015 |
| 43 | NVE SpecificationSN2008_B | Updated May 2015 |
| 44 | NVE Specification SN02007_B | Updated May 2015 |
| 45 | NVE Specification SN2006_B | Updated May 2015 |
| 46 | NVE Specification SN02109_A | Updated May 2015 |
| 47 | NVE Specification SN2002_J | Updated May 2015 |
| 48 | NVE Specification 01108_C | Updated May 2015 |
| 49 | NVE Specification SN 06311_B | Updated May 2015 |
| 50 | NVE Specification 2108_A | Updated May 2015 |
| 51 | NVE Specification SN02107_A | Updated May 2015 |
| 52 | NVE Specification 1004A | Updated May 2015 |
| 53 | NVE Specification SN02003E | Updated May 2015 |
| 54 | NVE Specification SN05013_A | Updated May 2015 |
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Exhibit B
(ATTACHMENT 5)
(ATTACHMENT 5)
| NVE Specification QA-00-055 | To be added in May 2016 |
| NVE Specification QA-00-054 | To be added in May 2016 |
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