NSK Corporation/Adept Technology
Robot Module Purchase and Service Agreement
This agreement between Adept Technology, Incorporated (hereinafter referred to
as "ADEPT") and NSK Corporation (hereinafter referred to as "NSK") is entered
into this agreement for the purpose of providing sales of NSK Robot Modules
through ADEPT'S sales and marketing capabilities. NSK and ADEPT agree that the
following provisions shall govern the mutually beneficial relationship between
NSK and ADEPT.
1. Purpose and Scope of Agreement
1.1 This agreement, along with the terms and conditions printed on ADEPT'S
purchase orders and NSK's acknowledgement forms that do not conflict with one
another, set forth the conditions for purchase of items and quantities. Should
there be any conflict between purchase order and or acknowledgement forms this
document shall be paramount.
2. Product Specification and Technical Information
2.1 Product Specification
NSK will sell to ADEPT "Robot Modules" (hereinafter referred to as MODULES)
which meet a mutually agreed upon specification in the NSK product specification
manual. If changes are required to the product specifications referenced in this
agreement during the course of the business relationship, both parties must
approve the requirements and changes in writing to be made before they are
incorporated into the product sold to ADEPT. NSK agrees that all MODULES sold to
ADEPT will meet the most current effective revision of the product
specifications approved by both parties and be compatible in form, fit and
function including spare parts.
2.2 Technical Support
NSK will provide an on-site NSK engineer, currently Xx. Xxxxxx, to train ADEPT
personnel. Xx. Xxxxxx will be the technical liaison between NSK (USA) and T-NSK
(Japan). NSK and ADEPT agree that from time to time the NSK Engineer may be
changed at the discretion Of NSK. however, a replacement Engineer will be
provided of equal skill and competence. NSK agrees to give ADEPT sixty (60) days
notice of any such change.
3.0 Pricing and Payment
3.1 Pricing
The prices applicable to the product purchased under this agreement shall be set
forth in the attached PRICE SCHEDULE. Pricing shall be in U.S. dollars for a
minimum quantity of 40 axis for calendar 1994 and a minimum quantity of 1050
axis for calendar 1995. Pricing may be renegotiated to take into account cost
changes due to: improvement of production processes. labor costs, material
costs, currency fluctuations, price increases by competitors and governmental
actions. Price is based on a rate of 105 Yen per one U.S. dollar. Yen changes of
plus or minus 10% may be renegotiated.
3.2 Pricing Schedule
Proposed changes in prices will be reviewed quarterly and must be communicated
to Adept at least ninety (90) days prior to intended effective date. A release
against the new price schedule shall be applicable to all shipments ninety (90)
days after effective date on new price schedule.
3.3 Payment Terms
Invoicing shall be on a per shipment basis and shall become due and payable one
hundred-twenty (120) days from the date of invoice. A total of eight (8)
demonstration units will become payable one hundred and eighty (180) days from
invoice date. Spare parts will become payable one hundred-twenty (120) days from
invoice date. If additional demonstration units are ordered, exceeding the eight
mentioned, payments will be due one hundred-twenty (120) days from invoice date.
4.0 Lead Times, Forecasts, Purchase Orders, Delivery Schedules
4.1 Lead Times
NSK shall offer a lead time of eight (8) weeks by boat for delivery of standard
product. Non-standard product will be subject to availability. NSK will incur
additional freight charges to fulfill promised ship dates. ADEPT will incur
additional freight charges if drop shipments are required before NSK promise
date. NSK will use its best efforts to expedite particular orders where ADEPT'S
ability to make a sale is based on quick delivery. Initial stocking order is
subject to availability. NSK will make best efforts to provide quick service to
the customer to promote the mutual success of both parties.
4.2 Forecast
ADEPT will provide to NSK a twelve (12) month rolling forecast via facsimile
from Purchasing Agent and will be updated every master schedule change. The
forecast and revised forecast provided to NSK by ADEPT will be ADEPT'S best
efforts but shall not be a binding obligation to place orders in accordance with
its forecast. Only actual signed Adept Purchase Orders shall be considered as
the purchasing commitment.
4.3 Purchase Orders
Only actual signed Adept Purchase Orders shall be considered as the purchasing
commitment. NSK shall acknowledge, within forty-eight (48) hours exclusive of
weekends and holidays via fax, all purchase orders. Adept will issue release
orders via fax against open purchase orders. Adept will issue open Purchase
Orders for an approximate period of six (6) to twelve (12) months for stocking
inventory. ADEPT will periodically issue Purchase Orders for drop ship
requirements. Every week Adept will issue an Order Release (Ship Schedule) via
facsimile against the Open Purchase Order.
4.4 Shipment Schedule
Adept will issue an Order Release Schedule against the Open Purchase Order
(hereafter known as Ship Schedule) via facsimile commencing the 10th of each
month that will specify monthly Production Shipment delivery quantities for the
next six (6) months of which the first thirty (30) days are firm. The balance of
the schedule may be adjusted based on the following matrix.
Month Lead-time Upside Downside
Current 0-30 days Frozen Frozen
+1 31-60 days 20% 20%
+2 61-90 days 50% 50%
+3 or more 91-180 days 100% 100%
4.5 Stocking Location and Stocking Levels
Adept will be the primary stocking entity and will be responsible for shipments
to the end user. NSK will have supplementary inventory in Cerritos, CA, to
support ADEPT's stocking levels. Each location will have a minimum of two weeks
shipping requirements of modules and a two (2) weeks of safety stock available
and ready for shipment within 24 hour notice. NSK will provide drop ship
services when it promotes our mutual success.
4.6 Deliveries
Delivery quantities to be made on a weekly system are scheduled and supplied by
ADEPT'S Agent via fax or phone call. NSK shall deliver to ADEPT or ADEPT'S
Customers in accordance with delivery schedule set forth in weekly fax. NSK
shall not deliver product in advance of ADEPT'S required delivery without prior
written approval. When earlier deliveries are made, ADEPT may elect to return
the item at NSK's expense.
4.7 Shipments
All product shall be shipped FOB NSK U.S. facilities. Shipments will be made to
ADEPT'S Standard Shipping specification. From time to time it may be necessary
to modify shipments by mutual agreement of both parties. NSK agrees to provide
weekly shipments as requested by ADEPT. Title and Risk of loss shall pass to
ADEPT at the FOB ship Point, notwithstanding any failure of notification to ship
any non-conformity MODULES. NSK will ship to ADEPT'S customer when it promotes
our mutual success at ADEPT'S expense.
4.8 Returns
NSK will allow a one-time mass return of the NSK styled MODULES and related
products in unused and saleable condition. In return for this service, ADEPT
agrees to place an offsetting order for equal to or greater than the return
amount.
5.0 Warranty
5.1 Product Warranty
NSK warrants that the Robot MODULES sold to ADEPT will conform to NSK
specification and be free of manufacturing defects for a period of eighteen (18)
months from ship date. NSK specifically disclaims the implied warranties of
merchantability and fitness for a particular purpose.
5.2 Warranty Obligation
NSK's warranty obligation will be limited to provide at no charge to ADEPT, an
exchange or replacement part within two (2) working days for any standard field
replacement part or subassembly found to be defective by ADEPT and NSK during
the warranty period. ADEPT will return or scrap defective part or subassembly at
NSK's direction. NSK will pay the cost of transportation in both directions for
the defective parts. NSK will not under any circumstances be liable for personal
injury and or consequential damages or lost profits that may arise from breach
of this express warranty.
5.3 Defect
To the extent that the defects are substantial (over 5% of the MODULES shipped
in the prior three (3) months or require more than four (4) man hours per unit
to repair) per ADEPT and NSK agreement. ADEPT will return the product to NSK for
repair or replacement at NSK's expense including labor and transportation both
ways.
5.4 Training
Maintenance and repair training to ADEPT personnel and any third party whom
ADEPT contracts to service the Robot MODULE will be provided by an on-site NSK
engineer (currently Xx. Xxxxxx) for a period of one (1) year. If training is
held at an ADEPT customer site, ADEPT will reimburse NSK for expenses incurred
to provide such training. Additional time may be agreed to by both parties
should it be necessary at the conclusion of the initial one (1) year time
period. Should Adept desire to use a third party contractor for service a
confidentiality agreement running to the benefit of Adept and NSK must be signed
prior to any third party service.
5.5 Dead On Arrival (DOA) and Infant Mortality Performance
MODULES parts and replacement parts DOA and infant mortality rates for 18 months
must be 1% except for abnormal transportation damage. The system and its
packaging must be able to withstand normal industry shipping (air, rail, and
truck) requirements for vibration, shock, temperature and humidity. If DOA and
infant mortality rates exceed 1%. ADEPT may claim labor expense at cost
(includes labor, travel and per diem expenses) from NSK. A notification of DOA
in writing must reach NSK within five (5) working days after the date of cargo
arrival at the customer's site. ADEPT judges the DOA and Infant mortality
performance as non-functional MODULES or replacement parts when arrived at ADEPT
or products not performing per stated specification.
5.6 Replacement Parts
All replacement parts for components within the warranty period shall carry the
remaining express warranty time period. Replacement parts for components out of
the warranty period will have a 12 month repair warranty period.
6.1 Replacement Parts
All spare or replacement parts required for the MODULE sold to ADEPT shall be
listed in the PRICE SCHEDULE. Prices for out-of-warranty and spare parts
purchased by ADEPT shall be listed and updated in the PRICE SCHEDULE in the same
manner as product prices as outlined in Section 3 of this agreement. All spares
must be fully tested and run as per NSK specification manuals.
6.2 Replacement Parts Stock Levels
ADEPT agrees to maintain a level of replacement parts which will allow it to
ship emergency spare units. NSK agrees to maintain a level of stock of spare and
replacement parts which will allow it to ship emergency replacements of any part
within one (1) working day of notification via FAX. NSK will drop ship emergency
requirements to ADEPT'S customer at ADEPT'S expense.
ADEPT will use its best efforts to advise and encourage their customers to
maintain an adequate level of replacement parts (spares) to support their
installed base of ADEPT equipment.
6.3 Part Revision Control
NSK agrees to maintain records of the revision levels for all parts and relate
the part revision level to the serial numbers of all MODULES which it ships to
ADEPT. These records are to be sent monthly to ADEPT with the latest updates.
NSK shall also keep ADEPT informed at all times of cases where the most current
revisions of any part cannot be used to replace a prior revision level of the
same part. When these cases exist. NSK will stock sufficient quantities of prior
revision level parts to meet any future repair requirements for MODULES in the
field for a required eight (8) years. Both parties shall discuss the update of
prior revision spare parts in ADEPT inventory which shall be returned to NSK
upon agreement.
6.4 Re-manufactured Parts Usage
Only new parts will be employed in new MODULES and spares
6.6 Spare Part Packaging
All MODULES and spare parts will be individually packaged and in a manner to
prevent any normal shipping damage and allow safe storage and handling of the
individual parts in the unopened package. All MODULES and spare or replacement
parts must have exterior markings in English which clearly show quantity,
ADEPT'S part number, revision level, and whether the spare part is "new" or
"used" (usable only for warranty and non-warranty replacement.)
6.7 Packaging Labeling
NSK will create packaging having external labeling that conforms to applicable
law and trademark and marketing identification requirements established by
ADEPT. This is particularly important given the plan to ship direct from NSK's
stocking locations to ADEPT'S customers.
All electric components must be adequately packaged to prevent (E.S.D.) and/or
humidity damage consistent with the shipping and storage methods.
7.0 Product Changes Management
NSK agrees to maintain and provide notification to ADEPT of revision level to
the serial numbers of all product that it ships to ADEPT. NSK will keep ADEPT
informed at all times of cases where the most current revisions of any part
cannot be used to replace a prior revision level of the same part. When these
cases exist, NSK will stock sufficient quantities of prior revision level parts
to meet any future repair requirements for MODULES in the field. Should NSK make
a revision to a part and the new revision part is a retrofit to previous
revisions. ADEPT may return any prior revision spare parts in ADEPT'S inventory,
which the new revision will replace, to NSK for replacement with the new
revision part. This will minimize revisions of parts which ADEPT must stock as
spares and allow only the most current revision to be inventoried.
All changes are to be fully downward and upward compatible. If for any reason
compatibility is not possible, the impact to ADEPT'S customer base must be
assessed and is subject to ADEPT'S approval. ADEPT will expect that all spares
will be upgraded within six (6) months through a recycle program and all other
parts must be upgraded and/or replaced upon failure. All revisions will be at
NSK's cost.
8. Obsolescence
8.1 Support Service
For all MODULES sold to ADEPT under this agreement, NSK agrees to support
service and parts replacement for at least eight (8) years after notification to
ADEPT of product discontinuance.
8.2 Obsolescence Agreement
NSK agrees to obtain ADEPT'S concurrence on the obsolescence on any product
and/or part covered by this agreement. If concurrence can not be reached, NSK
agrees to maintain production of the subject product and/or part for eighteen
(18) months from notification.
9. Documentation
9.1 Documentation
NSK will provide manuscript, technical illustrations in fully converted English
for all MODULES sold to ADEPT for incorporation into ADEPT'S user and service
manuals at no cost. NSK grants ADEPT the right to reproduce the documentation
for sales, service literature and manuals. Documentation will be provided in the
form of electronic copy in eighty-eight megabyte magneto-optical disk in Page
Maker 4.0 format.
10. Inspection and Testing
10.1 Testing
NSK products will perform to printed NSK catalog specification. If additional
testing is needed, NSK and ADEPT will come to a mutual agreement.
10.2 Inspection
ADEPT shall have the right to periodically inspect NSK's production process for
MODULES sold to ADEPT at NSK's facility as required with reasonable notice
before any visit. ADEPT shall retain the right to final test and acceptance of
any product before it is shipped from NSK's facility. A non-disclosure and
confidentiality agreement will be required to be signed by authorized ADEPT
personnel.
10.3 Quality Data
This issue has yet to be resolved and should be deleted from this agreement. NSK
will try to comply with ADEPT'S questions concerning quality issues but NSK does
not have a formal quality response system in existence at this time.
10.4 Conformal Agency Approvals
For the MODULES acquired by ADEPT, NSK must maintain the relevant product,
design and manufacturing operations in full compliance with all appropriate
safety and standards requirements.
11.1 Indemnity
NSK will defend at its expense any claim or suit brought against ADEPT, or any
ADEPT customer using MODULES originally manufactured by NSK, based on claim that
the use of any product delivered constitute an infringement of a patent,
copyright, or any other intellectual property right issued by a country in which
ADEPT does business.
NSK will indemnify ADEPT and ADEPT's customers from any costs, damages and fees
finally awarded against ADEPT in an action attributable to such a claim,
including any legal fees incurred by ADEPT to defend itself.
To the extent that NSK decides to procure a license for ADEPT or ADEPT'S
customer to continue use of the product at some cost to NSK, this cost will not
be borne in any way by ADEPT for any product received through the time NSK
notified ADEPT of this cost and no purchase orders outstanding will be affected
by a price increase due to this cost. Additionally, at the time NSK notifies
ADEPT that due to this additional cost future pricing will be increased. ADEPT
shall notify NSK of all outstanding quotations which ADEPT is obligated to and
NSK will not pass this cost on to any product sold under the named outstanding
quotations.
12.1 Confidentiality
Each party acknowledges that, in the course of the performance of this
agreement, it may obtain information relating to the other party. its business,
and MODULES that is of confidential and proprietary nature (hereinafter referred
to as "Proprietary Information").
Proprietary Information will be identified by written notification by either
party to the other, prior to disclosure. Each party agrees to treat the other
party's Proprietary Information in a manner similar to how it treats its own
Proprietary Information during the initial term and any renewal terms of this
agreement and for three (3) years after its expiration or sooner termination,
and will not divulge the Proprietary Information to third parties or people
within its company who do not have a need to know without the express written
permission of the party making the claim of Proprietary Information.
12.2 Propriety
Obligations to protect the others Proprietary Information shall not apply to the
extent such information: (a) was in the recipient parties lawful and
unrestricted possession prior to disclosure by the other party as evidenced by
written records; (b) is generally available to the public; (c) has been received
lawfully and in good faith by either party, from a third party who did not
derive it from the disclosing party; or (d) is independently developed by the
recipient without reference to the Proprietary Information and without violation
of any confidentiality restriction, or divulged to a third party through due
process of 1aw.
12.3 Non-disclosure
Neither party will disclose the terms or contents of this agreement, including
appendixes, to any third party except as mutually agreed, or as required by
statute, regulation, or court order.
12.4 Public Disclosure
All public disclosure of any terms of our relationship for publicity or business
purposes must be approved by both parties prior to disclosure unless required
through due process of law. Then the party required to the disclosure shall
notify the other party as far in advance as circumstances allow.
13.1 Assignments and Delegations
This agreement shall inure to the benefit and be binding upon the parties and
their respective successors and assignees. Neither party shall assign or
delegate this agreement or any rights, privileges or obligations under this
agreement without the prior written consent of the other party. Notwithstanding
the foregoing, no such consent shall be required for any such assignment or
delegation by a party that is part of or incident to the sale or other transfer,
whether by sale, merger, consolidation, or other corporate reorganization. All
or substantially all of such party's assets and business, so long as the
assignees or successor shall be a corporation owning or retaining all or
substantially all of such assets and business and shall have assumed all of such
party's obligations under this agreement except as the said successors and
assignees or their licenser, license, affiliated company complete with the other
party.
14.1 Initial Term
The Initial Term of this agreement shall be thirty-six (36) months from and
after the Effective Date unless specifically formally contested by either party,
this agreement will automatically extend in 12 month increments. This agreement
will not extend beyond ten (10) years. Given this agreement is contested by
either party, or both hereto shall discuss with each other the extension or
expiration of this agreement in good faith six (6) months prior to the above
expiration date. If both parties cannot reach agreement, this agreement will
expire on said date.
14.3 Termination
Termination shall not relieve NSK of its obligations under sections 5, 6, or 7
of this agreement that deal with warranty and service of MODULES sold to ADEPT
prior to the termination of this agreement.
15.1 Force Majeure
Neither party shall be liable for any obligation under this agreement if
fulfillment of any such obligation has been delayed, hindered, or prevented by
force majeure, including strikes, riots civil commotion or any circumstances
beyond the reasonable control of the parties to this agreement, provided that
the suspension of fulfillment of any obligation under this agreement shall be
limited to the duration necessary for removal of the effects of the force
majeure.
16.1 Law
This agreement shall be governed by and interpreted in accordance with the laws
of the State of California, U.S.A. The California state courts of Santa Xxxxx
County, California (or, if there is exclusive federal jurisdiction, the United
States District Court for the Northern District of California), ADEPT and NSK
will work out a fair settlement between the two parties. If one cannot be
reached, it will go to arbitration. The parties agree that any arbitration shall
be held in the U.S. at a site mutually convenient to both parties. The
arbitration shall be pursuant to the rules of commercial arbitration of the
American Arbitration Association.
16.2 Fees
Reasonable attorney's fees and costs shall be awarded to the prevailing party in
the event of litigation involving the enforcement or interpretation of the
agreement.
17 Exclusivity
17.1 Information Disclosure
NSK will not use to its advantage any information disclosed by ADEPT as a result
of this purchase and service agreement unless the information is freely and
commonly available in the market place.
ADEPT Customer Contact and Business Competitive Restrictions
NSK agrees not to use this supplier relationship as a mean to contact any ADEPT
customer without the formal written agreement of ADEPT.
17.2 Territory Exclusivity
NSK agrees that this contract will be the basis to purchase. NSK agrees that
this ADEPT has exclusive rights in North America (Canada, United States, and
Mexico) to sell Robot MODULE. Exclusivity of Canada and Mexico must be approved
by NSK-RHP (Canada) and NSK-MEX (Mexico) through Xx. Xxxxxxxx.
NSK retains the right to sell modules to existing NSK customers who prefer not
to purchase from ADEPT. ADEPT agrees that NSK will retain the right to sell and
service, under the NSK label, non-U.S. machine builders who import product to
North America.
NSK agrees to provide ADEPT incoming leads for MODULES. ADEPT agrees to inform
NSK concerning applications deemed non-module compatible but could be addressed
by other NSK products.
In return for this exclusivity ADEPT agrees to the following marketing
commitment:
o Strive for majority of market share in North America
o Produce ADEPT brochures to promote the sales of MODULES
o Institute direct mail, telemarketing and advertising programs to
promote the sales of MODULES
o Establish a five person MODULE team to promote MODULES
o Establish a technical service hot line
o Achieve unit sales described in Section 3.1
o Place order for initial stocking quantity to be determined
o Based on previous meeting and ADEPT'S business plan ADEPT has agreed to
spend one million dollars to promote sales of MODULES
18.1 Miscellaneous
This agreement and all notices, reports, documentation, or other communications
hereinafter shall be in English language, and in all cases of any conflict
between the English version and any translated version of this agreement or any
such communication, the English version will govern. Filed notices should be
sent to:
Xxxxx Xxxxx Xxxxx Xxxx
Adept Technology NSK Corporation
000 Xxxx Xxxxxxx Xxx 000 Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Ph. (000) 000-0000 Ph. (000) 000-0000
Fax (000) 000-0000 Fax (000) 000-0000
18.2 Miscellaneous
Failure of either party to enforce any provision of this agreement or waiver by
either party of a breach of any provision of this agreement by the other party
shall not be construed as a waiver of any succeeding breach of the same or any
other provision.
If any provision is held to be invalid or unenforceable, the invalidity shall
not affect the validity of the remaining provisions, and the parties agree to
substitute for the invalid provision a valid provision that most closely
approximates the intent and economic effect of the invalid provision.
19.1 Entire Agreement
This agreement constitutes and expresses the entire agreement and understanding
between the parties hereto with respect to all the matters herein referred to.
All previous discussion, promises, agreements, memoranda. representations, and
understandings relative thereto, if any, had between the parties hereto, are
herein merged or superseded. This agreement is deemed signed in Illinois.
IN WITNESS WHEREOF the parties hereto have cause this agreement to be executed
in duplicate by their respective duly authorized representatives on the day and
year first below written and retained one copy respectively.
ADEPT TECHNOLOGY NSK CORPORATION
BY: /s/ Xxxxxxx ?????? BY: /s/ ???????
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TITLE: Senior V.P. TITLE: Chairman C.E.O.
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DATE: 1/16/95 DATE: 1/19/95
-------------------------------- --------------------------------
BY: /s/ ??????? BY: /s/ ??????
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TITLE: Linear Modules Business Manager TITLE: Gen. Manager
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DATE: 1/16/95 DATE: 1/19/95
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