SUPPLY AGREEMENT
Exhibit
10.1
Dated:
April 26, 2006
BETWEEN: | ||
(1)
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Digital
Angel Corporation 000 Xxxxxxxx Xxxxxx, Xxxxx Xx. Xxxx, XX 00000-0000
XXX
(hereinafter called DAC)
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(2)
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Raytheon
Microelectronics España,
S.A.
Parque Xxxxxxxxxxx
xx
Xxxxxxxxx,
Xxxx.
Xxxx Xxxxx xx Xxxxxxxx,
00
Málaga.
(hereinafter called RME)
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WHEREAS:
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RME and DAC are parties to a Supply Agreement dated June 19, 2003 which expires on June 30, 2006 (the “2003 Agreement”), and the parties want to negotiate a new agreement that reflects the changes to the business since the execution of the 2003 Agreement; and | |
WHEREAS:
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The parties desire to assure that the sale of the Products pursuant to this Agreement includes the right for DAC and the subsequent purchasers and users of the Products to use for the intended purpose(s) Intellectual Property that may be owned by RME or its Affiliates that relates exclusively to the design, manufacture or distribution of the Products. |
IT
IS AGREED:
1.
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Definitions
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1.1
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“Affiliate”
means any person, partnership, joint venture, corporation or other
form of
enterprise, domestic or foreign, including but not limited to
subsidiaries, that directly or indirectly, control, are controlled
by, or
are under common control with a
party.
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1.2
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“Confidential
Information”
means nonpublic information that RME or DAC (“Disclosing Party”)
designates as being confidential at the time of disclosure, by
suitable
legend to the party that receives such information (“Receiving Party”)
that has or could have commercial value in the business or prospective
business of Disclosing Party, or which, under the circumstances
surrounding disclosure ought to be treated as confidential by the
Receiving Party. “Confidential Information” includes, without limitation,
information in tangible or intangible form relating to and/or including
released or unreleased Disclosing Party technology, software or
hardware
products, the marketing or promotion of any Disclosing Party product,
Disclosing Party’s business policies, financial information, contracts,
records, or practices, and information received from others that
Disclosing Party is obligated to treat as confidential. Except
as
otherwise indicated in this Agreement, the term “Disclosing Party” also
includes all Affiliates of the Disclosing Party and, except as
otherwise
indicated, the term “Receiving Party” also includes all Affiliates of the
Receiving Party. An “Affiliate” means any person, partnership, joint
venture, corporation or other form of enterprise, domestic or foreign,
including but not limited to subsidiaries, that directly or indirectly,
control, are controlled by, or are under common control with a
party.
Confidential Information shall not include any information, however
designated, that: (i) is or subsequently becomes publicly available
without Receiving Party’s breach of any obligation owed
Disclosing
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Party;
(ii) became known to Receiving Party prior to Disclosing Party’s
disclosure of such information to Receiving Party pursuant to the
terms of
this Agreement; (iii) became known to Receiving Party from a source
other than Disclosing Party other than by the breach of an obligation
of
confidentiality owed to Disclosing Party; or (iv) is independently
developed by Receiving Party.
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1.3
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“Intellectual
Property”
means any and all intellectual property held by a party or any Affiliate
of a party, including but not limited to patents, licenses of patented
technology, trademarks, exclusively
copyrights, trade secrets, and know-how to the extent that such
Intellectual Property relates to the manufacture or distribution
of the
Products.
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1.4
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“Products”
means
glass encapsulated, syringe-implantable transponders, regardless
of
operating frequency for use in animals, human beings and inanimate
objects
carried on or worn by animals and human
beings.
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1.5
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“Specifications”
means all documentation related to the operating performance, design,
manufacture or use of the Products, whether developed by RME or
DAC.
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2.
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Terms
and Conditions of Supply
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2.1
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DAC
shall purchase products in accordance with the terms set forth in
Clause 3
below and
RME shall manufacture and supply the products, in accordance with
the
Specifications in existence at the time of the order release. RME
shall
ensure that the materials procured by RME and RME’s manufacturing of the
Products shall remain competitive with regard to price, quality and
other
terms.
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2.2
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This
Agreement shall be effective from April 26, 2006 and except as provided
by
clause 17 below, shall continue until June 30th
2010.
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2.3
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Any
modification to this Agreement shall be made by written agreement
between
DAC and RME.
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2.4
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RME
will be DAC’s preferred supplier of the Products for the duration of this
agreement provided RME’s pricing remains market competitive.
Notwithstanding the foregoing, DAC reserves the right to purchase
components for the Products from any supplier/vendor including RME’s
suppliers/vendors.
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2.5
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DAC
may review and audit the components used by RME and/or its suppliers
for
compliance with the terms and conditions of this Agreement. In connection
with any such audit, DAC shall be provided with copies of any documents
reasonably requested by DAC.
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3.
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Orders
and Forecast
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3.1
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In
the last week of each calendar month, DAC shall send RME a 12 month
non-binding rolling forecast.
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3.2
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DAC
will place orders covering at least 90 days
horizon.
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3.3
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At
the time of receiving the rolling forecast, RME will also order long
lead
time parts needed to cover the quantity indicated in the forecast
for the
fourth month forward +/- 25%.
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3.4
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DAC
is committed to lead times as agreed between the parties and will
therefore bear responsibility for the long lead materials defined
in 3.3
above if not consumed as
forecasted.
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3.5
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RME
will do its best to manage requested changes in the 90 days horizon
to
reflect DAC’s demand changes.
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4.
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Suppliers
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4.1
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RME
and DAC will set a formal vendor approval process with the participation
of both parties.
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4.2
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The
vendor approval process shall endeavor to establish that DAC
representatives will have full access to the facilities of RME/DAC
approved suppliers.
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5.
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Production
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5.1
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RME
shall operate a quality system to the requirements of EN ISO 9001
or
agreed equivalent.
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5.2
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RME
shall operate a first in first out policy on all components used
in the
Products manufactured for DAC.
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5.3
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RME
shall be responsible for implementing the Specification to manufacture
the
Products and ensuring the Products comply with the
Specification.
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5.3.1
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RME
will strive to improve the yield of all of the assembly processes
involved
in the manufacturing of DAC products. Any yield improvement below
4% will
be shared equally between RME and
DAC.
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6.
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RME
support
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6.1
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RME
will continue supporting DAC prototype build and new product
introduction.
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6.2
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RME
will continue supporting and collaborating with DAC Engineering on
a daily
basis to improve product performance and design and process
development.
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6.3
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A
project team including at least a program manager, 2 process engineers,
a
test engineer, a quality engineer and a supply chain engineer will
be in
charge of the whole program.
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6.4
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The
program manager assigned to the project will be in charge of the
coordination, monitoring and daily activities for the operations
and in
dealing with suppliers.
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6.5
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RME
will provide DAC with bills of materials and general process flow
information for DAC internal use and to be submitted to DAC Head
Office at
St Xxxx MN when required. These documents and its content are covered
by
the Confidentiality requirements in article 18 as well as
signed off RME-DAC non-disclosure agreement and cannot be transferred
to
others.
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6.6
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RME
will provide a customer advocate in order to communicate DAC’s desires to
the appropriate RME personnel, as
required.
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7.
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Engineering
Change Orders “ECOs”
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7.1
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RME
will not make any changes to the Specifications without DAC written
authorization.
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7.2
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If
DAC issues a written Engineering Change Order (“ECO”) to the
Specifications, RME will apply such ECO to the relevant Products
for all
subsequent deliveries.
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7.3
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DAC
will be responsible to RME for the cost of components specific to
DAC
products made obsolete as a consequence of an ECO. If components
affected
by ECO are already assembled into product, DAC will accept those
products
already manufactured.
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7.4
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RME
will use its reasonable endeavours to mitigate such cost. All such
costs
shall be agreed prior to implementation of the
ECO.
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7.5
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RME
may request changes to the Specification (“ECR”). ECRs will be accompanied
by an evaluation of cost impact and all other relevant data. ECRs
will not
be binding on DAC until expressly accepted in writing by DAC as an
ECO.
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8.
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Materials
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8.1
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DAC
shall have the right, at its discretion, to provide components to
RME at
cost and invoice RME for such components; in turn RME will invoice
DAC at
the same cost plus 5.5% charge as described in paragraph 11.3 , thereby
incorporating the supplied component costs within the total unit
cost
charged to DAC. It is acknowledged and agreed that DAC will bear
complete
responsibility for the components that it provides and that RME will
be
excused and compensated for any non-conformance, including but not
limited
to delays in delivery, scrap, yield or quality issues as a result
of any
components that are provided by DAC, or which fail to be provided
to RME
in a timely manner. This situation only could happen for new products
at
prototype or new product introduction stages. This situation will
not
apply to the current products.
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8.2
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Except
to the extent that DAC provides components to RME pursuant to Clause
8.1
above, RME will have full responsibility on the supply of the parts
of all
the current transponder Products.
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9.
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DAC
Automated equipment and tooling provided to or by
RME
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9.1
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Schedule
9.1 sets forth the automated equipment and tooling, used in the
production
of the Products, that are owned by DAC but located in the RME facilities
(the “DAC-Owned Equipment”). Schedule 9.1 sets forth the automated
equipment and tooling, used in the production of the Products that
are
owned by RME (the RME-Owned
Equipment”).
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9.2
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The
DAC-Owned Equipment shall remain the property of DAC at all times
and can
be recovered from RME provided ten day’s notice is given and further
provided that such removal will not impact RME’s current production
obligations for the Products.
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9.3
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RME
shall pay DAC the replacement cost of all lost of damaged DAC-Owned
Equipment.
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9.4
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RME
shall keep the DAC-Owned Equipment properly maintained and calibrated
at
DAC’s cost (such cost to be the direct cost incurred by RME for parts
and
supplies and other mutually agreeable items, but excluding labor
costs)
provided that RME provide DAC with a written quotation and obtain
DAC’s
prior written approval before calibration is carried out. DAC will
ensure
such calibration is carried out in a timely manner to ensure production
output is not delayed.
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9.5
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DAC-Owned
Equipment shall not be removed from RME’s premises without DAC’s written
notice.
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9.6
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DAC-Owned
Equipment shall not be used for manufacturing products or subassemblies
for third parties without DAC’s prior written
approval.
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9.7
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Upon
termination of this Agreement, DAC shall have the right, having
given 10
day’s notice in writing to enter RME premises, to remove any DAC-Owned
Equipment not returned to DAC when
requested.
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10.
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Outsourcing
decisions
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RME
may
outsource the assembly of all Products covered by this agreement with the
exception of Products incorporating the Super 12 technology, provided the
subcontractors are approved by both RME and DAC, and provided such subcontractor
has signed a non compete and confidentiality agreement acceptable to RME and
DAC
prior to the performance of any work.
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11.
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Price
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11.1
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RME
material purchasing cost will be reported to DAC at any time that
it is
requested.
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11.2
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RME
will strive to continually get the best competitive pricing from
all the
suppliers and to develop the highest quality and competitive
suppliers.
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11.3
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At
the time of taking over responsibility on the supply of all the components
of the xxxx of material of DAC products including coils and circuits,
RME
will include in the price of the finished Product the actual cost
to RME
of components for the Products, labor costs incurred by RME plus
a fee
equal to 5.5% of the actual cost of the components for the Products
purchased by DAC. This 5.5% percentage includes a current 4.5% material
scrap cost carried by DAC and has been set considering material freight
cost, material duties, material inventory cost, material overhead
cost and
financial cost arising from changes in the payment
terms.
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11.4
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The
pricing of each Product shall be set forth in the purchase orders
submitted by DAC based on the prices currently agreed between DAC
and RME;
provided, however, that the parties shall from time to time negotiate
in
good faith any changes in price for existing Products as a result
of
agreed changes to the Products or for future Products, and shall
update
this Agreement as necessary to reflect the current price of each
Product.
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12.
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Payment
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12.1
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RME
shall invoice DAC for Products delivered on or after
delivery.
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12.2
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DAC
shall pay RME within 30 days after the date of Product is delivered
to
DAC.
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12.3
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DAC
products shall be priced and paid for in US$
currency.
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13.
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Quality
Tests
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RME
is
responsible for testing all Products and ensuring they perform in accordance
with the specification and agree not to ship any product not meeting
specification with DAC prior written consent.
14.
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Other
products and rest of the transponder value
chain
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14.1
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DAC
and RME will work together to develop and evaluate the feasibility
of a
win-win proposal in order for RME be in charge of the whole transponder
value chain including custom packaging for different DAC
customers.
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14.2
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DAC
will provide RME with the information needed to quote other electronic
products, including current price and target price to be successful
so RME
could get their suppliers involved to develop a win-win
proposal.
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15.
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Warranty
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RME
warrants that for 12 months from the delivery date, Products supplied will
conform to the applicable Specifications and be free from defects in material
and workmanship. DAC will provide a monthly report to RME of all warranty claims
for the Products within the prior month. Within 30 days of receipt of the above
information, which must include itemized serial numbers,
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product
identification, description of failure, and cost of warranty, RME shall credit
DAC 100% of the purchase cost of the original product where the serial number
identifies the age of the product to be equal to or less than 12 months from
delivery date and RME reasonably determines that the Products are defective,
based on product failures identified through standard manufacturing testes
performed by RME, within ten (10) business days after receipt of the Products.
If no determination is made within such ten (10) business day period, then
the
Products shall be deemed defective and covered by the warranty.
16.
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Liability
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16.1
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The
liability of either party to the other, if any, and the sole and
exclusive
remedy for damages for any claim of any kind whatsoever made by one
party
against the other with respect to the supply of products under this
Agreement or default in respect of such supply shall be limited to
an
amount equal to the value of purchases made by DAC from RME in the
immediately preceding twelve months. Under no circumstances will
either
party be liable to the other for any indirect, special, incidental,
or
consequential damages arising out of any breach of this agreement
whether
such damages are labeled in tort, contract, or indemnity, even if
the
relevant party has been advised of the possibility of such
damage.
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17.
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Termination
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17.1
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Either
party shall be entitled to terminate this agreement immediately if
the
other:
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(i)
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commits
any breach of this Agreement which cannot be remedied within 30 days
after
notification;
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(ii)
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commits
a breach which can be remedied but which is not remedied within 30
days of
receipt of written notice requiring the breach to be
remedied;
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(iii)
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ceases
or threatens to cease trading, becomes insolvent or has a receiver,
administrative receiver appointed over the whole or any part of its
assets, or enters into composition with is creditors or has a resolution
passed or order made for it to be wound up (other than for purpose
of a
solvent amalgamation or
reconstruction);
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17.2
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Termination
shall not affect any rights which have accrued in favour of either
party
prior to the date of termination.
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18.
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Confidentiality
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18.1
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Receiving
Party shall:
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(i)
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Refrain
from disclosing any Confidential Information of the Disclosing Party
to
third parties for three (three) years following the date that Disclosing
Party first discloses such Confidential Information to Receiving
Party,
except as expressly provided in Sections 2(b) and 2(c) of this
Agreement;
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(ii)
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Take
reasonable security precautions, at least as great as the precautions
it
takes to protect its own Confidential
Information,
but no less than reasonable care, to keep confidential the Confidential
Information of the Disclosing Party;
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(iii)
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Refrain
from disclosing, reproducing, summarizing and/or distributing Confidential
Information of the Disclosing Party except in pursuance of Receiving
Party’s business relationship with Disclosing Party, and only as otherwise
provided hereunder; and
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(iv)
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Refrain
from reverse engineering, decompiling or disassembling any software
code
and/or hardware devices disclosed by Disclosing Party to Receiving
Party
under the terms of this Agreement, except as expressly permitted
by
applicable law.
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18.2
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Receiving
Party may disclose Confidential Information of Disclosing Party in
accordance with a judicial or other governmental order, provided
that
Receiving Party either (i) gives the undersigned Disclosing Party
reasonable notice prior to such disclosure to allow Disclosing Party
a
reasonable opportunity to seek a protective order or equivalent,
or (ii)
obtains written assurance from the applicable judicial or governmental
entity that it will afford the Confidential Information the highest
level
of protection afforded under applicable law or regulation. Notwithstanding
the foregoing, the Receiving Party shall not disclose any computer
source
code that contains Confidential Information of the Disclosing Party
in
accordance with a judicial or other governmental order unless it
complies
with the requirement set forth in sub-section (i) of this Section
2(b).
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18.3
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The
undersigned Receiving Party may disclose Confidential Information
only to
Receiving Party’s employees and consultants on a need-to-know basis. The
undersigned Receiving Party will have executed or shall execute
appropriate written agreements with third parties sufficient to
enable
Receiving Party to enforce all the provisions of this
Agreement.
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18.4
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Receiving
Party shall notify the undersigned Disclosing Party immediately
upon
discovery of any unauthorized use or disclosure of Confidential
Information or any other breach of this Agreement by Receiving
Party and
its employees and consultants, and will cooperate with Disclosing
Party in
every reasonable way to help Disclosing Party regain possession
of the
Confidential Information and prevent its further unauthorized
use or
disclosure.
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18.5
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Receiving
Party shall, at Disclosing Party’s request, return all originals, copies,
reproductions and summaries of Confidential Information and
all other
tangible materials and devices provided to the Receiving Party
as
Confidential Information, or at Disclosing Party’s option, certify
destruction of the same.
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18.6
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Remedies.
The
parties acknowledge that monetary damages may not be a sufficient
remedy
for unauthorized disclosure of Confidential Information and
that
Disclosing Party shall be entitled, without waiving any other
rights or
remedies, to such injunctive or equitable relief as may be
deemed proper
by a court of competent
jurisdiction.
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18.7
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Miscellaneous
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(a) All
Confidential Information is and shall remain the property of
Disclosing
Party. By disclosing Confidential Information to Receiving Party,
Disclosing Party does not grant any express or implied right
to Receiving
Party to or under any patents, copyrights, trademarks, or trade
secret
information except as otherwise provided herein. Disclosing Party
reserves
without
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prejudice
the ability to protect its rights under any such patents, copyrights,
trademarks, or trade secrets except as otherwise provided
herein.
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(b) The
terms of confidentiality under this Agreement shall not be construed
to
limit either the Disclosing Party or the Receiving Party’s right to
independently develop or acquire products without use of the
other party’s
Confidential Information. However, this sub-paragraph shall not
be deemed
to grant to the Receiving Party a license under the Disclosing
Party’s
copyrights or patents.
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19.
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Waiver
|
The
failure of either party at any time or times to enforce any provisions within
this Agreement shall not affect its right to enforce such provision at a later
date.
20.
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Law
|
This
Agreement shall be governed by the laws of the state of Minnesota,
USA.
21.
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Assignment
or Transfer.
RME will not, without prior consent in writing, assign, transfer
or
sub-contract, or in any way make over its obligations of this agreement
without DAC’s consent.
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22.
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Amendments,
Assignment, and Entire Agreement.
This Agreement may not be modified, amended, or supplemented except
by an
agreement in writing signed by both parties. This Agreement and the
rights
and obligations hereunder shall not be assignable without the express
written consent of the nonassigning party. Subject to the restrictions
against transfer or assignment as herein set forth, the provisions
of this
Agreement shall inure to the benefit of, and shall be binding on,
the
permitted successors and assigns of each of the parties hereto. This
Agreement shall constitute the entire agreement between the parties
hereto
with respect to the transactions contemplated hereby and shall supersede
all prior or contemporaneous discussions, negotiations, understandings
and
agreements. There are no representations, agreements, arrangements,
or
understandings, oral or written, between or among the parties hereto
relating to the subject matter of this Agreement that are not fully
expressed herein.
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23.
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Counterparts.
This Agreement may be executed in various counterparts or copies,
all of
which, when taken together, shall constitute the entire
agreement.
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24.
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Waiver.
The failure of any party to insist, in any one or more instances,
upon
performance of any of the terms, covenants, or conditions of this
Agreement shall not be construed as a waiver or a relinquishment
of any
right or claim granted or arising hereunder or of the future performance
of any such term, covenant, or condition, and such failure shall
in no way
affect the validity of this Agreement or the rights and obligations
of the
parties hereto. No waiver of any provision or condition of this Agreement
shall be valid unless executed in writing and signed by the party
to be
bound thereby, and then only to the extent specified in such waiver.
No
waiver of any provision or condition of this Agreement shall be construed
as a waiver of any other provision or condition of this Agreement,
and no
present waiver of any provision or condition of this Agreement shall
be
construed as a future waiver of such provision or
condition.
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25.
|
Invalidity
|
If
any
provision of this agreement is held by any court or other competent authority
to
be void or unenforceable in whole or in part, the other provisions of this
agreement and the remainder of the affected provisions shall continue to be
valid.
26.
|
Intellectual
Property.
|
26.1
|
License grants from DAC to RME. During the term of this Agreement, DAC hereby grants to RME a non-exclusive, royalty free license to use DAC’s Intellectual Property in connection with the manufacture of the Products, which license specifically excludes any right to distribute the Products to third parties or to create any derivative works from the Products. Except as provided in Clause 10 herein, RME shall have no right to grant sublicenses to any of DAC’s Intellectual Property to third parties. |
26.2
|
License
grant from RME to DAC.
In consideration of the sale of the Products to DAC, whether such
Products
are manufactured by RME or by a third party pursuant to the provisions
of
Clause 10 herein, DAC and any person acquiring title to any Product
through DAC shall be deemed to have been granted a non-exclusive,
royalty
free license to any and all Intellectual Property held by RME or
its
Affiliates related to the manufacture, distribution or use of the
Products; provided, however, that such license shall be considered
as part
of each Product and shall not be licensed, sublicensed or conveyed
separately from the Product to which such license relates. RME
represents
and warrants that prior to the effective date of this Agreement,
neither
RME nor its Affiliates (i) have used the Intellectual Property
to
commercialize syringe-implantable transponders for use in humans
or
animals other than through DAC or (ii) assigned or otherwise granted
any
rights in the Intellectual Property to any third
parties.
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26.3
|
Exclusivity.
So long as DAC purchases not less than the aggregate quantity
of Products
purchased by DAC in calendar year 2005 from RME (the “Annual Minimum
Purchase Amount”), RME shall not, without the prior written consent of DAC
in each instance, (i) manufacture or sell any Products (or Products
competitive with the Products) to third parties or (ii) knowingly
license
any Intellectual Property of RME or its Affiliates to any third
party for
use in manufacture or distribution of the Products or products
competitive
to the Products. In the event that RME is unable or unwilling
to
manufacture the quantities of any Product requested by DAC and
does not
acquire such Products from third parties pursuant to Clause 10
herein, DAC
shall have the right to purchase Products from third parties,
and (i) such
purchases shall be treated as having been purchased from RME
for the
purpose of calculating the Annual Minimum Purchase Amount, and
(ii) the
license of Intellectual Property of RME and its Affiliates referred
to in
subparagraph (c) above shall be deemed to extend to all such
Products
manufactured by third parties. RME shall have the right, on not
less than
90 days prior notice, to advise DAC of its willingness to again
produce
the quantities of Product requested by DAC, and upon delivery
of such
Products, DAC shall not have the right to treat purchases from
third
parties against the Annual Minimum Purchase
Amount.
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26.4
|
No
other interest in Intellectual Property.
Except as expressly provided herein, the parties acknowledge
that neither
party has, nor shall such party acquire, any interest in the
other party’s
Intellectual
Property.
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27.
|
Force
Majeure.
Any delay or failure of RME to perform its obligations hereunder
shall be
excused to the extent that it is caused by an event or occurrence
beyond
its reasonable control such as, by the way of example and not by
way of
limitation, acts of god, actions by any governmental authority
(whether
valid or invalid), fires, floods, windstorms, explosions, riots,
natural
disasters, wars, sabotage, labor problems (including lockouts,
strikes,
and slowdowns) at RME’s facility, its source plant or suppliers, inability
to obtain power, material, labor, equipment, or transportation,
or court
injunction or order.
|
The
parties or their duly authorized representatives have executed this Agreement
on
the date shown at its head.’
Signed for and on behalf of
Digital Angel Corporation
|
Signed for and on behalf of
Raytheon Microelectronics España,
S.A.
|
/s/ Xxxxx Xxxxxxxx | /s/Xxxxxxx Xxxxxxxx |
Xx. Vice President Xxxxx Xxxxxxxx | Managing Director Xxxxxxx Xxxxxxxx |
Dated: April 26, 2006 | Dated: April 26, 2006 |
Page 10 of 10 |
4/26/2006
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