Exhibit 10.26
PRIVATE AND CONFIDENTIAL
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MASTER ENGINEERING SERVICES AGREEMENT
This MASTER ENGINEERING SERVICES AGREEMENT (the "Agreement") is entered
into as of October 26, 1999 (the "Effective Date") by and between PRI
Automation, Inc., a Massachusetts corporation with its principal offices located
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇. ("PRI"), and
Shinsung Eng. Co., Ltd., a South Korean corporation with its principal place of
business located at ▇▇▇ ▇▇▇▇▇▇-▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
("Shinsung").
Background.
1. PRI designs and manufactures factory automation systems primarily used
to automate the fabrication of integrated circuits.
2. PRI wishes to engage Shinsung from time to time to provide certain
engineering services for Projects (as defined below) in connection with
the development of certain technology which will be owned by PRI.
3. Shinsung wishes to and represents that it has the capability and
expertise to complete the Projects in a timely manner and on-budget and
on the terms and conditions set forth below.
4. The parties intend that the terms of this Agreement shall govern all
individual Projects which Shinsung is engaged by PRI to perform from
time to time.
Now, therefore, in consideration of the mutual obligations and
covenants contained in this Agreement, the parties agree as follows:
1. DEFINITIONS.
In addition to the capitalized terms defined on first use in this
Agreement, the following terms shall be defined as follows:
1.1 "Deliverables" shall mean, in connection with a particular Project,
the items which are to be delivered by Shinsung to PRI in connection with such
Project, including the items set forth on the Statement of Work for such
Project.
1.2 "Intellectual Property" shall mean any and all patents, copyrights,
trademarks, trade secrets, confidential information, know-how, and proprietary
rights and information of any kind or nature whatsoever and all rights and
privileges relating to any effort to establish, perfect, and defend such rights
including, without limitation, the right to prepare and prosecute applications
and registrations, all rights of licensing, transfer, and assignment, and the
right to prosecute infringement claims.
1.3 "Project" shall mean a project identified on a Statement of Work.
"Project" shall include, without limitation, provision of the Services and
delivery of the Deliverables.
1.4 "Project Creations" shall mean all ideas, creations, inventions,
discoveries, improvements, designs, methods, algorithms, computer programs,
written works, research, data and information of any kind, whether or not
patentable or copyrightable, that are made, conceived, reduced to practice or
authored by Shinsung, alone or jointly with others, and that arise from or
relate to any aspect or aim of a Project or make use of any Proprietary
Information. The Project Creations shall include, without limitation, all
tangible representations and embodiments of the foregoing,
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including all prototypes, disks, diskettes, tapes, computer printouts, listings,
flow charts, manuals, diagrams, letters, notes, notebooks, lab books, documents,
reports, and models, as well as the Deliverables.
1.5 "Proprietary Information" shall mean all ideas, creations,
inventions, discoveries, improvements, designs, methods, algorithms, computer
programs, written works, research, data and information of any kind, whether
oral, written, or in machine-readable or any other form, which is confidential
or proprietary to PRI or to any third party that has furnished it to PRI.
Without limiting the foregoing, "Proprietary Information" shall include: all
Project Creations; any information arising from or relating to a Project
furnished to Shinsung by PRI; any information identified as "Proprietary
Information" in a Statement of Work; and any information relating to the
substance of this Agreement and any Project under this Agreement, including all
information contained in this Agreement.
1.6 "Services" shall mean the services which are to be performed for
PRI by Shinsung in connection with this Agreement and any and all Projects
arising under this Agreement, including, without limitation, those services set
forth on the Statement of Work for such Project.
1.7 "Specifications" shall mean, in connection with a particular
Project, the requirements and specifications for any Deliverable or Services as
set forth on the Statement of Work for such Project or otherwise provided by PRI
to Shinsung or developed by Shinsung in connection with such Project.
"Specifications" shall include, without limitation, PRI's requirements for form,
fit, function, performance, and reliability.
1.8 "Statement of Work" shall mean, in connection with a particular
Project, the statement of work for such Project attached hereto setting out,
among other things, the Services, Deliverables, Milestones and Completion Date
for such Project. The standard form of Statement of Work for use by the parties
is attached as EXHIBIT A hereto.
2. PROJECTS.
2.1 MASTER AGREEMENT. In accordance with the terms of this Agreement,
PRI may from time to time, in its sole discretion, submit to Shinsung a proposed
Statement of Work signed by an authorized representative of PRI. Shinsung may,
in its sole discretion, provide an estimate of its fees and expenses for
completion of the Project described in the proposed Statement of Work and notify
PRI of any changes it considers necessary to the proposed Statement of Work. In
the event that PRI and Shinsung agree on the terms of a Statement of Work, the
agreed Statement of Work shall be signed by an authorized representative of each
party. Upon signature by an authorized representative of each party, such
Statement of Work shall be deemed to be a Statement of Work under this
Agreement. The Statement of Work shall be governed by the terms of this
Agreement except to the extent otherwise expressly stated, or supplemented, in
such Statement of Work. This Agreement is non-exclusive. PRI retains the right
to submit a proposed Statement of Work to a third party for quotation and
completion of the Project described in such proposed Statement of Work.
2.2 PERFORMANCE BY SHINSUNG. Shinsung shall perform all work required
by a Project, including providing the Services and delivering the Deliverables,
in accordance with the Statement of Work for such Project. Shinsung shall
complete the Project by the date identified on the Statement of Work for such
Project (the "Completion Date"). Shinsung shall immediately notify PRI of any
cause which may delay its performance. Each party shall designate a manager for
a Project, identified on the Statement of Work for such Project (the "Project
Manager"), and at PRI's request, the Project Managers shall meet and confer to
discuss any and all aspects of such Project.
2.3 BIDS, QUOTATIONS OR PURCHASE ORDERS. Except for a Statement of
Work, no bid, quotation, purchase order or other similar form may vary the terms
and conditions hereunder, and any term or condition thereof that is inconsistent
with or additional to the terms and conditions hereunder shall not be binding.
2.4 ADDITIONAL GOODS AND SERVICES. In the event that, during the course
of a Project, PRI desires goods or services related to the Project in addition
to Deliverables and Services, PRI shall issue, and Shinsung shall use its best
efforts to accept, a purchase order setting forth such additional goods and
services, and provided that a price for them
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shall have been agreed to by the parties. Any such additional goods or services
provided by Shinsung to PRI shall be deemed Deliverables and Services for such
Project, respectively, for purposes of this Agreement.
2.5 INSPECTION; RECORDS. PRI shall have access at all reasonable times
in the course of a Project to inspect any facility at which Shinsung is
performing hereunder, and Shinsung shall assist PRI in any such inspection.
Shinsung shall maintain detailed and accurate written records of work performed
under this Agreement; such records shall be available for review by PRI, and
Shinsung shall provide copies of such records to PRI at PRI's request.
2.6 CHANGE ORDERS. Subject to the terms of this Agreement, PRI may make
changes in any aspect of a Project, including, without limitation, changes in
Services, Deliverables, Specifications, quantities of Services and Deliverables,
Milestones, and Completion Date for a Project. Shinsung shall advise PRI in
writing within seventy two (72) hours after PRI informs Shinsung of a change in
any aspect of a Project if Shinsung believes such change would require an
increase or decrease in the cost of, or the time required for, performance;
Shinsung's failure to so advise PRI shall constitute Shinsung's acceptance of
such change and a waiver of any and all rights of Shinsung to object to such
change, including receiving additional payment or an increase in the time
required to perform. If Shinsung does so advise PRI, then PRI shall either
rescind such change, with neither party having any further obligation regarding
such change, or confirm such change, with the parties agreeing on an equitable
adjustment to the Project Price, Milestones or Completion Date for the
particular Project. Any change made to a Project pursuant to this Section 2.6
shall be memorialized in writing by the PRI Project Manager for the particular
Project.
3. PAYMENTS; PROJECT PRICE.
3.1 PAYMENTS. As full consideration for completion of a Project, PRI
shall make payments to Shinsung in the amounts and upon completion of the events
(the "Milestones") specified in the Statement of Work for such Project. Payment
for any Milestone is due [FORTY-FIVE (45)] days after receipt of an invoice from
Shinsung for payment bearing the applicable Project reference number and
indicating the successful completion of such Milestone.
3.2 PROJECT PRICE. Subject to the terms and conditions of this
Agreement, PRI shall pay the price for completion of a Project listed on the
Statement of Work for such Project (the "Project Price"). Shinsung shall bear
all other costs and expenses incurred in Korea by Shinsung in completing the
Project, and shall bear all foreign, federal, state, municipal and other
governmental excise, value added, sales, use and other taxes, fees, levies,
duties and charges of any nature now in force or enacted in the future,
including, without limitation, export or import duties, assessed upon or in
connection with the Project or otherwise arising in connection with this
Agreement.
4. DELIVERY; INSPECTION.
4.1 DELIVERY. TIME IS OF THE ESSENCE, and delivery of any Deliverable
or provision of any Services according to a Statement of Work is an essential
term of this Agreement. Shinsung assumes all risks of loss or damage for any and
all Deliverables until delivery is completed at PRI's designated discharging
airport or port, and for any and all Deliverables returned to Shinsung pursuant
to Section 4.2. Unless otherwise expressly provided for in a Statement of Work,
Shinsung shall deliver the Deliverables in accordance with standard commercial
practices, and shall pay all shipping charges and be responsible for dealing
with all carriers.
4.2 INSPECTION. Notwithstanding any prior inspection or payment,
Deliverables shall be subject to final inspection by PRI. PRI shall have at
least thirty (30) days from the date of receipt to inspect and approve any
Deliverables, and for any Deliverables that are defective or do not conform with
the Shinsung Warranty (as defined in Section 7.1), PRI shall have the right: to
reject such Deliverables and return them to Shinsung for refund or credit; to
return such Deliverables for correction by Shinsung; and/or to accept such
Deliverables with an equitable adjustment in the applicable Project Price;
provided that such defect or failure to conform to the Shinsung warranty is
acknowledged by the project manager of Shinsung. All costs and expenses incurred
to complete any of the foregoing with respect to defective or nonconforming
Deliverables shall be borne exclusively by Shinsung, and Shinsung shall promptly
reimburse PRI for any damages sustained as a result of defective or
nonconforming Deliverables which are rejected by PRI. If a
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defect or nonconformity in any Deliverable is not apparent on final inspection,
PRI may elect any or all of the foregoing remedies upon discovery of such defect
or nonconformity. Any such non-conformity shall be detailed to Shinsung within
six (6) months after Final Inspection.
5. RIGHTS IN PROJECT CREATIONS, LICENSES.
5.1 OWNERSHIP. The parties stipulate and agree that all Project
Creations and all rights of any kind therein shall be the exclusive property of
PRI. Shinsung shall keep and maintain adequate and current written records of
all Project Creations (in a reasonable form for the particular Project Creation,
and for any Intellectual Property that may be sought for such Project Creation,
or as may be reasonably specified by PRI), which records shall be Proprietary
Information. Shinsung shall promptly inform PRI of all Project Creations and
shall, upon PRI's request, furnish to PRI a copy of all such records and other
tangible materials describing, comprising or containing Project Creations.
Shinsung hereby assigns and conveys, and agrees to assign and convey, to PRI all
rights, title and interests, including all Intellectual Property throughout the
world, in and to the Project Creations as they come into existence. Shinsung
shall execute, and shall cause its employees, subcontractors and agents to
execute, such documents, including assignments and any applications for
Intellectual Property (including patent, copyright and trademark applications),
and to take such other actions as may be requested by PRI to perfect, confirm or
protect Intellectual Property in the Project Creations. If Shinsung shall fail
to execute or procure any such document, PRI is hereby irrevocably granted the
power coupled with an interest to execute such document in the name of Shinsung
as Shinsung's attorney-in-fact.
5.2 EMPLOYEES, CONTRACTORS AND AGENTS. Shinsung shall require any of
its employees, subcontractors and agents who have participated or may
participate in the Project, including in any development of Project Creations,
to comply with the terms and conditions hereunder, and shall obtain from such
employees, subcontractors and agents all agreements, waivers, consents,
releases, assignments or other documents necessary and desirable to enable
Shinsung to carry out this Section 5.1 and any other obligation of Shinsung
hereunder.
5.3 SHINSUNG LICENSE. Subject to the terms and conditions of this
Agreement, Shinsung hereby grants PRI a perpetual, worldwide, transferable,
irrevocable, worldwide, fully paid-up, royalty-free license, including the right
to grant sublicenses, under any Shinsung Intellectual Property to make, have
made, use, sell, offer for sale, reproduce, distribute, display, transmit,
broadcast, prepare derivative works based upon and otherwise exploit in any
manner Deliverables.
5.4 PRI LICENSE. Subject to the terms and conditions of this Agreement,
PRI hereby grants to Shinsung a nonexclusive, nontransferable license, under PRI
Intellectual Property, solely for the purpose of, and solely to the extent
necessary for, performing Project(s) pursuant to this Agreement; PROVIDED,
however, that: (i) Shinsung shall not have the right to sublicense such license;
(ii) notwithstanding anything herein to the contrary, such license shall
terminate upon the termination or expiration of this Agreement; (iii) in no
event shall Shinsung have any license under PRI Intellectual Property to sell or
otherwise provide to any third party Deliverables or Services, any similar good
or service, or any improvement thereof (or any component of the foregoing), or
to use or otherwise exploit any process to support or otherwise achieve the
same.(iv) in no event shall PRI have any obligations to disclose any PRI
Intellectual Property to Shinsung except as may be required by the Scope of
Work.
5.5 RESERVATION. All rights not expressly granted to Shinsung herein
are reserved to PRI. Without limiting the generality of the foregoing, except as
expressly provided for in Section 5.4, nothing herein shall be construed as
granting Shinsung a license, either express or implied, to use or otherwise
exploit any PRI Intellectual Property, Project Creations or Proprietary
Information, and Shinsung stipulates and agrees that PRI owns any and all right,
title and interest in or to, and Shinsung shall acquire no right, title, or
interest in or to, any of the foregoing.
6. CONFIDENTIALITY, ADVERTISING, BUSINESS PROTECTION.
6.1 CONFIDENTIALITY. Shinsung stipulates and agrees that Shinsung shall
have possession of and/or access to Proprietary Information, and that the
Proprietary Information is a valuable asset of PRI. Shinsung shall hold
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Proprietary Information in strictest confidence and not disclose any Proprietary
Information to any third party, and shall use the Proprietary Information only
for PRI's benefit as required or expressly contemplated for performance of
Projects. Shinsung shall limit use of, and access to, the Proprietary
Information to its employees and agents who have a need to use the Proprietary
Information on behalf of PRI to perform a Project and who have executed
confidentiality agreements with Shinsung that are at least as protective of the
Proprietary Information as the provisions of this Section 6.1. Shinsung shall
take all steps reasonably necessary to protect the confidentiality of the
Proprietary Information, including taking such precautions as Shinsung takes to
protect Shinsung's own confidential and proprietary information. Upon the
completion of a Project or earlier termination of this Agreement, Shinsung shall
return to PRI, or destroy, at PRI's request, all embodiments and copies of
Proprietary Information in Shinsung's possession or under Shinsung's control.
6.2 BUSINESS PROTECTION. During the term of this Agreement and for five
(5) years thereafter, Shinsung shall not, directly or indirectly, (i)
participate in the development, manufacture, sale or provision of any goods or
services in connection with factory automation systems for the manufacture of
integrated circuit devices; or (ii) employ, attempt to employ or solicit the
employment of, any employee of or consultant to PRI or otherwise induce or
attempt to induce any employee of or consultant to PRI to leave the employ of
PRI.
7. WARRANTIES; DISCLAIMERS; LIMITATIONS ON LIABILITY; INDEMNIFICATION.
7.1 SHINSUNG WARRANTY. Shinsung hereby represents and warrants that
(the "Shinsung Warranty"): (i) all Services shall be performed diligently and in
a good and workmanlike manner, in accordance with the standard of skill and care
normally provided by a professional person in the applicable field of endeavor;
(ii) all Deliverables shall conform to the Specifications, shall be free of
defects in materials and workmanship, shall be suitable for the purposes for
which each Deliverable of that kind is normally used, and shall be suitable for
PRI's particular purpose; (iii) upon delivery of any Deliverable, PRI shall have
marketable title to the Deliverable, free and clear of all liens and
encumbrances; (iv) all Deliverables shall accept as input, use and provide as
output date data without error or interruption and that each Deliverable shall
operate in accordance with Specifications on all dates before, on and after
January 1, 2000 without impairment arising out of date data representing such
dates; (v) neither Shinsung's Services nor any of Shinsung's obligations herein
do or shall conflict with or constitute a breach of any agreement to which
Shinsung is a party or any obligation by which Shinsung is bound (including any
agreement or obligation restricting the use or disclosure of any information
proprietary to a third party); and (vi) neither the Deliverables, the Services,
the Project Creations nor any of the rights granted by Shinsung hereunder do or
shall infringe any Intellectual Property of any third party anywhere in the
world, and Shinsung shall promptly disclose to PRI any such infringement,
whether actual or alleged; provided, however, that clause (vi) shall not apply
to any infringement resulting entirely from compliance with the Specifications.
The Shinsung Warranty shall survive delivery, inspection, acceptance, payment
and termination of this Agreement, and shall run to PRI, its customers, and
successors and assigns.
7.2 AUTHORITY. Each party represents to the other that it has full
corporate power and authority to enter into this Agreement and to carry out the
provisions thereof.
7.3 WARRANTY DISCLAIMERS. EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED
HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND,
WHETHER EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, WITH RESPECT TO
SERVICES, DELIVERABLES, INTELLECTUAL PROPERTY, PROJECT CREATIONS, PROPRIETARY
INFORMATION OR ANY OTHER SERVICES, MATERIALS OR RIGHTS PROVIDED HEREUNDER OR
OTHERWISE IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, INFRINGEMENT OF ANY THIRD
PARTY'S INTELLECTUAL PROPERTY, PERFORMANCE, AND/OR RELIABILITY OR QUALITY.
7.4 LIMITATION ON LIABILITY. NEITHER PARTY SHALL BE ENTITLED TO RECOVER
FROM THE OTHER PARTY ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR
PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR
LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT
LIABILITY), OR ANY OTHER CAUSE OF
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ACTION RELATING TO SERVICES, DELIVERABLES, INTELLECTUAL PROPERTY, PROJECT
CREATIONS, PROPRIETARY INFORMATION OR ANY OTHER SERVICES, MATERIALS OR RIGHTS
PROVIDED HEREUNDER OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE
PARTY AGAINST WHICH A CLAIM IS MADE HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF
THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF EITHER PARTY
(WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER CAUSE OF ACTION) SHALL NOT EXCEED
THE PURCHASE PRICE. THE LIMITATIONS ON LIABILITY CONTAINED IN THIS SECTION 7.4
SHALL NOT APPLY TO THE PARTIES' INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION
7.5.
7.5 INDEMNIFICATION. Each party ("the Indemnitor") shall indemnify,
hold harmless and, at the other party's request, defend the other party (the
"Indemnitee") and its agents and customers against all claims, liabilities,
damages and expenses of any kind (including attorney's and professional's fees
for defending Indemnitee, its agents and customers) arising out of, or resulting
in any way from any breach, whether actual or alleged, by Indemnitor of any of
its representations or warranties set forth herein; provided, however, that
Indemnitor is promptly notified of all indemnified matters, is given all
cooperation from Indemnitee (at Indemnitor s expense) deemed necessary or
helpful by Indemnitor to the resolution of such matter, and is allowed to
control the prosecution, settlement or other resolution of such indemnified
matter as long as such resolution or settlement does not materially impair the
rights of Indemnitee. The Indemnitor's indemnification obligations shall be in
addition to its obligations under any of its representations or warranties set
forth herein.
8. TERM, TERMINATION, SURVIVAL.
8.1 TERM. This Agreement is effective as of the Effective Date and
shall continue in full force and effect for a period of [five (5)] years until
it expires on [_____________] or until it is earlier terminated pursuant to its
terms.
8.2 TERMINATION FOR CONVENIENCE. PRI may terminate this Agreement or
any Project initiated pursuant to this Agreement for business and/or financial
considerations and upon written notice to Shinsung. In such event, Shinsung
shall immediately stop work hereunder as specified in the notice. Shinsung shall
be paid reasonable termination charges consisting of a percentage of any payment
for any Milestone provided for in a Statement of Work corresponding to the
percentage of work performed for such Milestone prior to the notice of
termination, plus reasonable costs resulting directly from termination, minus
resale or salvage value of any work so terminated. Shinsung shall complete
performance of any portion of a Project not so terminated.
8.3 TERMINATION FOR CAUSE BY PRI. PRI may terminate this Agreement, or
any part hereof, for cause in the event of any default by Shinsung, or if
Shinsung fails to comply with any of the terms and conditions of this Agreement,
and such default or failure has not been cured within [twenty (20)] days of
written notice from PRI. The causes permitting PRI to terminate this Agreement
include, without limitation, late deliveries, failure to complete a Milestone in
accordance with a Statement of Work, failure to complete a Project by the
Completion Date for such Project, breach of any warranty and failure, upon
request, to provide PRI reasonable assurances of future performance and any
change of control of Shinsung as provided in Section 9.12.
8.4 TERMINATION FOR CAUSE BY SHINSUNG. Shinsung may terminate this
Agreement for cause if PRI fails to make any payment owing to Shinsung
hereunder, and such failure has not been cured by PRI within [ twenty(20)] days
of written notice from Shinsung.
8.5 TERMINATION FOR INSOLVENCY. This Agreement will immediately
terminate upon written notice to such effect by either party hereto to the other
party, , (i) in the event of such other party's voluntary or involuntary
bankruptcy or insolvency, (ii) in the event that such other party will make an
assignment for the benefit of creditors, (iii) in the event that petition will
have been filed against such other party under applicable bankruptcy law, or any
other applicable law for the relief of debtors, or other applicable laws similar
in purpose or effect, the effect of which is to cause such other party to have
its business effectively discontinued.
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8.6 NO PAYMENTS FOR CERTAIN LOSSES. No indemnity or other payment shall
be payable to Shinsung by PRI on account of goodwill, lost profits or any other
factor in the event that this Agreement or any Project hereunder is terminated
for any cause provided in Section 8.3 or expires. Should the law to be applied
to the construction and enforcement of this Agreement be altered by any
legislation to the contrary, PRI and Shinsung shall negotiate in good faith to
amend this Agreement or Statement of Work hereunder to preserve PRI's right to
terminate or cause expiration of this Agreement or such Project, in accordance
with the terms hereof.
8.7 SURVIVAL. The following sections shall survive any termination or
expiration of this Agreement: 1, 2.1, 2.4, 3.2, 4.2, 5.1, 5.3, 5.5, 6, 7, 8 and
9.
9. GENERAL.
9.1 ARBITRATION. Any and all disputes arising in connection with this
Agreement shall be finally settled by one or more arbitrators designated in
conformity and in accordance with the Rules of Conciliation and Arbitration of
the International Chamber of Commerce by one or more arbitrators appointed in
accordance with said rule, by which each party is finally bound. Arbitration
shall take place in the International Court of Justice World Court, Hague,
Netherlands or such other location that both parties may agree.
9.2 AMENDMENT. Except as otherwise expressly provided hereunder, this
Agreement, including all Statements of Work and attachments hereto, may not be
amended or modified except by a written agreement signed by the parties hereto.
9.3 WAIVER. No failure on the part of either party hereto to exercise,
and no delay in exercising, any right, privilege or power hereunder shall
operate as a waiver or relinquishment thereof, nor shall any single or partial
exercise by any party hereto of any right, privilege or power hereunder preclude
any other or further exercise thereof, or the exercise of any other right,
privilege or power.
9.4 COMPLIANCE. (a) If any filing with or notice to any governmental
authority, or any government approval of this Agreement, is required to make
this Agreement effective or to make PRI's rights hereunder enforceable or
otherwise to protect PRI's proprietary rights hereunder, or to permit Shinsung
to perform any of its obligations hereunder, Shinsung shall promptly so notify
PRI in writing and, at PRI's request, Shinsung shall promptly, at PRI's expense,
take all actions required to make such filing, give such notice or obtain such
approval. Shinsung, at its expense, shall obtain and maintain in effect all
permits, licenses and other consents necessary to the conduct of its activities
hereunder. Shinsung shall keep PRI currently informed of its efforts in this
regard.
(b) Each party shall comply with all applicable laws, orders,
ordinances and regulations, now or hereafter enacted, of any jurisdiction in
which performance occurs or may occur hereunder. Without limitation of the
foregoing, Shinsung shall comply with the United States Foreign Corrupt
Practices Act, and shall indemnify PRI from any failure to comply with or
violation of such Act by Shinsung. Each party shall be solely responsible for
its own individual violations of any of the foregoing.
9.5 FORCE MAJEURE. In the event that either party hereto shall be
rendered wholly or partly unable to carry out its obligations under this
Agreement by the occurrence of an event of force majeure, including fire, flood,
earthquake, other comparable natural disaster, riots, insurrection or other
civil commotion, war, epidemics and reasonably unforeseen acts of government
(other than acts of government directed exclusively at that party, such as
civil, criminal or regulatory action taken against the party by name), then the
performance of the obligations of the affected party or parties shall be excused
for as long as such event of force majeure continues; provided, however, that
the affected party provides written notice to the other of the force majeure
event and makes reasonable efforts to remedy the disruption. If Shinsung's
performance hereunder is delayed because of any such event for a cumulative
period of more than twenty (20) days after such notification, PRI may terminate
this Agreement for cause in accordance with Section 8.3.
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9.6 NOTICES. All notices required or permitted to be sent hereunder
shall be sent by reputable private international courier with established
tracking capability (such as DHL, FedEx, or UPS), postage pre-paid, marked for
delivery within one (1) business day, and (a) if such notice relates to a
particular Project, addressed to the Project Manager for such Project at the
address set forth on the applicable Statement of Work for such Project or (b) if
such notice relates to the Agreement generally, addressed to the applicable
officer of the party to be notified at the address for such party set forth
below (or such other address as the party to be notified may provide in writing
from time to time):
If to PRI to: PRI Automation, Inc.
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Attention: President
If to Shinsung to: Shinsung Eng. Co., Ltd.
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▇▇▇▇▇, ▇▇▇-▇▇▇
▇▇▇▇▇
Attention:
All notices sent in conformity with this Section 9.6 shall be deemed to
be received by the party to be notified on the later of two (2) business days
after such notice is delivered to the appropriate courier for delivery or, at
such later date as the courier's tracking records demonstrate actual delivery
occurred.
9.7 CERTAIN TERMS; CAPTIONS. As used in this Agreement, "including"
means "including but not limited to", and "hereof", "herein", "hereto" and
"hereunder" refer to this Agreement as a whole. Except as otherwise stated, all
section references in this Agreement refer to sections of this Agreement. The
captions hereof have been inserted solely for convenience of reference, in no
way define or limit the scope or substance of any provision of this Agreement
and shall not be considered in interpreting this Agreement.
9.8 INDEPENDENT PARTIES. PRI and Shinsung are independent contractors,
and are not partners, co-venturers, agents or representatives of the other
party. Neither party shall attempt to act on behalf of the other or hold itself
out to others as having the authority or ability to act on behalf of or bind the
other party. Each party shall assume complete responsibility for obligations
under applicable employers' liability, worker's compensation, social security,
unemployment insurance, tax withholding, occupational safety and health
administration laws and other applicable laws with respect to itself.
9.9 GOVERNING LAW, VENUE. This Agreement shall be governed by the law
of The Commonwealth of Massachusetts as such law is applied to contracts entered
into and entirely performed therein.
9.10 SEVERABILITY. If any provision of this Agreement is found to be
invalid or unenforceable, then this Agreement shall remain in full force and
effect and shall be reformed to be valid and enforceable while reflecting the
intent of the parties to the greatest extent permitted by law.
9.11 COMPLETE AGREEMENT. This Agreement, including all Statements of
Work and other attachments hereto, sets forth the entire agreement of the
parties regarding the subject matter hereof, and supersedes all prior promises,
agreements or representations, whether written or oral, regarding such subject
matter.
9.12 ASSIGNMENT, CHANGE OF CONTROL, SUBCONTRACTING. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors, assigns and legal representatives; provided, however,
that this Agreement is personal to Shinsung, and Shinsung may not assign any of
Shinsung's rights or delegate any of Shinsung's duties hereunder without PRI's
prior written consent. Any assignment or delegation by Shinsung without such
consent
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PRIVATE AND CONFIDENTIAL
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shall be void. PRI may terminate this Agreement, or any part hereof, for cause
in accordance with Section 8.3 upon any Change of Control of Shinsung. For the
purposes of this Section 9.12, a "Change of Control" shall mean a merger,
acquisition, winding-up, dissolution, or liquidation of Shinsung, a sale of all
or substantially all of the assets of Shinsung, or any other transaction which
results in a change in the ownership or control of more than twenty percent
(20%) of the voting interests of Shinsung. Without limiting the foregoing,
Shinsung shall not use any subcontractors or agents to perform its obligations
hereunder without PRI's prior written consent.
9.13 COUNTERPARTS. This Agreement may be executed in counterparts with
the same force and effect as if each of the signatories had executed the same
instrument.
9.14 REMEDIES. Except as otherwise expressly provided herein, no remedy
granted to either party herein shall be exclusive of any other remedy, and each
remedy shall be cumulative with every other remedy herein or now or hereafter
existing at law, in equity, by statute or otherwise. Shinsung stipulates and
agrees that Shinsung's services are special, unique and unusual, and that money
damages would not adequately compensate PRI for its loss were Shinsung to breach
this Agreement. Accordingly, Shinsung consents to PRI's right to seek injunctive
relief to force Shinsung to abide by the terms and conditions of this Agreement,
in addition to any other remedies available to PRI. In the event of any legal
action to enforce the terms and conditions of this Agreement, the prevailing
party in any such action shall be entitled to its costs and expenses, including
reasonable attorneys' fees, expended in enforcing its rights hereunder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives:
SHINSUNG ENG. CO., LTD. PRI AUTOMATION, INC.
By /s/ ▇ ▇ ▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- -------------------------------
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President Vice President & General Mgr.
Factory Systems
Date 10/26/99 Date 10/26/99
---------------------- --------------------------
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PRIVATE AND CONFIDENTIAL
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EXHIBIT A
[Form of Statement of Work]
This Statement of Work is subject to the terms of the Master Engineering
Services Agreement dated as of September, 1999 between PRI Automation, Inc. and
Shinsung Eng Co., Ltd., which terms are incorporated in, and made part of, this
Statement of Work as though each provision were separately set forth herein,
except to the extent otherwise stated or supplemented herein.
PROJECT REFERENCE NO:
I. PROJECT. The Project is as follows:
II. SERVICES. The Services are as follows (set forth or attach the
Specifications, if any, for each Service):
III. DELIVERABLES. The Deliverables are as follows (set forth or attach the
Specifications, if any, for each Deliverable):
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PRIVATE AND CONFIDENTIAL
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IV. PROPRIETARY INFORMATION. The following shall be "Proprietary Information"
in accordance with Section 1.5 of the Master Engineering Services Agreement
dated __________________, 1999 ("Agreement"):
V. PROJECT MANAGER.
The Project Manager for PRI shall be ________________. The Project
Manager for Shinsung shall be ________________.
VI. PROJECT PRICE.
The Project Price shall be __________ dollars ($US ______).
The Milestones shall be as follows:
---------------------------------------------------------------------------------------------------------------------
Milestone Milestone Due Milestone Payment Amount
Date (US$)
=====================================================================================================================
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Completion Date
---------------------------------------------------------------------------------------------------------------------
VII. DELIVERY. Any delivery instructions to modify Section 4.1 of the Agreement
are as follows:
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PRIVATE AND CONFIDENTIAL
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VIII. PRI TRADEMARKS. The PRI Trademarks shall be:
IX. NOTICE. The addresses for the parties hereto for notices are as follows:
For PRI:
PRI Automation, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
For Shinsung:
Shinsung Eng. Co., Ltd.
▇▇▇ ▇▇▇▇▇▇-▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇-▇▇,
▇▇▇▇▇, 150-046
Korea
SHINSUNG ENG. CO., LTD. PRI AUTOMATION, INC.
By /s/ ▇ ▇ ▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- -------------------------------
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President Vice President & General Mgr.
Factory Systems
Date 10/26/99 Date 10/26/99
---------------------- --------------------------
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