EXHIBIT 10.23
AMENDMENT NO. 2
TO THE
MASTER PURCHASE AGREEMENT
BETWEEN
K*TEC ELECTRONICS CORPORATION
AND
EMULEX CORPORATION
AMENDMENT EFFECTIVE DATE: FEBRUARY 1, 1999
The parties agree that the above referenced Agreement is amended to include the
following as a new Section 14:
14. Electronic Data Interchange
14.1 Purpose
Seller and Buyer hereby agree to establish a system of Electronic
Data Interchange ("EDI") whereby communication and/or transactions
between Seller and Buyer can be accomplished through electronic
means, rather than by writing on paper. All communications and/or
transactions between the parties effected by means of third party
public data networks, diskettes transmitted between parties, or other
electronic means shall be subject to this Amendment. All EDI between
the parties hereunder shall be transmitted and formatted in
accordance with the American National Standards Institute Business
Data Interchange (ANSI X.12) Standard identified by number, version,
and date.
14.2 EDI Operations
14.2.1 Technical operational details necessary to implement the EDI
relationship contemplated herein, such as defining
transaction standards and sets and selection of third party
networks, shall be mutually agreed upon and followed by the
parties in good faith using reasonable efforts. Such
operational details need not be signed as a supplement to
this Amendment. Each party must acquire a user identification
number ("User-ID") to transmit and receive EDI transmissions.
As soon as is practicable after execution of this Amendment,
each party shall notify the other party in writing of its
User-ID. Each party shall take commercially reasonable steps
to safeguard access to its User-ID, including, without
limitation, preventing any employee, representative, or agent
from disclosing its User-ID to unauthorized third parties.
14.2.2 An EDI transmission shall be deemed received when the network
delivers such document to the receiving party's network
mailbox. If such delivery occurs on a weekend or holiday,
receipt shall be deemed to occur on the next business day.
Upon proper receipt of a transmission, the receiving party
shall promptly transmit an acknowledgment confirming that
such transmission has been received. The acknowledgment shall
also be used to notify the sender that the receiver does or
does not accept the substance of the received transmission.
14.3 EDI Transaction Enforceability
The parties agree that all rights, duties and obligations which would
accrue upon receipt of data in the form of paper documentation shall
also accrue upon receipt of the data in electronic form via EDI. A
transmission containing a User-ID or other company identifier will be
considered a "writing" or "in writing" and to have been "signed," as
such terms are used in the California Uniform Commercial Code. Any
computer printout of such EDI transmission will be considered to be
an "original" when maintained in the normal course of business and
will be legally admissible as between the parties to the same extent
and under the same conditions as other business records maintained in
documentary form, including, without limitation, with regard to the
business records exception to the hearsay rule, the best evidence
rule, or the Statute of Frauds.
14.4 Third Party Public Data Network Use; Equipment
Unless otherwise agreed, each Buyer is responsible for establishing
its own agreements with third party networks ("Network"). Unless
otherwise agreed, connect time and any other charges of such Network
shall be paid by the party initiating each communication. Each party
shall provide and maintain at its own expense the equipment,
software, services, and testing necessary to effectively and reliably
transmit and receive transmissions hereunder.
14.5 Transmission Errors
Each party shall have in place reasonable controls to assure timely
handling of EDI transmissions and to promptly contact the sending
agent for corrective action in the event of a transmission error.
14.6 Security Duties
Each party is solely responsible for the selection, implementation,
and maintenance of appropriate security products, tools, tests, and
procedures sufficient to meet its requirements for protecting its
programs and data from improper access, loss, alteration, or
destruction.
14.7 Year 2000 Compliance
14.7.1 "Year 2000 Compliance" requires that each product accurately
processes date data (including, but not limited to,
calculating, comparing,
sequencing, storing, and rendering) from, into, during, and
between the 20th and 21st centuries, including leap year
calculations, and will not malfunction or produce any invalid
or incorrect results due to dates on or after January 1,
2000. Year 2000 Compliance includes, without limitation, date
data century recognition, calculations that accommodate same
century and multi-century formulas and date values, and date
data interface values that correctly reflect the century.
14.7.2 All EDI transmissions provided hereunder that specify,
involve, or include calculations using year dates from or
after the year 2000 shall meet the requirements of Year 2000
Compliance as defined above, insofar as the equipment owned
and controlled by each party is Year 2000 Compliant. Neither
party shall be liable to the other in any way for failure to
achieve Year 2000 Compliance resulting from non-compliant
equipment or software owned or controlled solely by its
selected Network. If a party's Network is found not to be
Year 2000 Compliant, that party shall take commercially
reasonable steps to resolve such non-compliance, including
but not limited to selecting a Network that is Year 2000
Compliant. During such time, the parties shall work together
in good faith to continue doing business under the Agreement
using other means of communications as agreed between the
parties.
2. Except as amended above, all terms and conditions of the Agreement remain
in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their duly authorized representatives.
K*TEC ELECTRONICS CORPORATION EMULEX CORPORATION
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx Xxxxxx
---------------- -------------------------
(Signature) (Signature)
Name: Xxxxx Xxxxx Name: Xxxx Xxxxxx
-------------- -----------------------
(Printed or Typed) (Printed or Typed)
Title: President Title: President and CEO
------------- ----------------------
Date: March 17, 1999 Date: March 24, 1999
-------------- -----------------------
