Exhibit 10.22
MANUFACTURING AGREEMENT
between
TANISYS TECHNOLOGY, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
and
SIEMENS COMPONENTS, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
1
INDEX TO AGREEMENT
1. BASIC AGREEMENT: SIEMENS - TANISYS
2. ATTACHMENT A: SIEMENS SPECIFIED MODULES AND LOOSE PARTS
3. ATTACHMENT B: ASSEMBLY, TEST AND REPAIR PRICES: MEMORY MODULES (MM)
4. ATTACHMENT C: LOGISTICS/TECHNICAL TERMS OF DELIVERY
5. ATTACHMENT D: SIEMENS Rolling Forecast
6. ATTACHMENT E: SIEMENS Processing and Quality Specification
7. ATTACHMENT F: EDI Agreement
8. ATTACHMENT G: SIEMENS and TANISYS Listing of Contacts
2
MANUFACTURING AGREEMENT
This Agreement made effective November 1st, 1996 between Tanisys Technology,
Inc. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, U.S.A (TANISYS) and SIEMENS
Components, Inc. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (SIEMENS)
(see Article 1.16).
WHEREAS, SIEMENS wants and TANISYS is willing to assemble quantities of
certain products exclusively for SIEMENS in accordance with these terms and
conditions, the parties agree:
1. PARTS OF AGREEMENT: DEFINITIONS
In this Agreement, the following expressions, except where the context
otherwise requires, shall have the following meanings:
1.0 "Affiliates" shall mean those corporate entities controlled by or
controlling, directly or indirectly, by capital or votes, either SIEMENS
or TANISYS, but only so long as the entities are so related.
1.1 "Contract products" (Products) shall mean those specific Memory Modules
(equipped printed circuit boards) defined in Attachment A.
1.2 "CONFIDENTIAL Information" shall mean all such technical information as
well as know-how (given orally, in writing or in other tangible form)
necessary for the manufacture of Products, which one party shares with
the other. "Confidential Information" includes the specification necessary
for the procurement of the components required for the manufacture of
Products, with the exception of DRAMs, as defined in Attachment A.
1.3 "Effective Date" shall mean the date on which this Agreement enters into
force as set forth at the beginning of this Agreement.
1.4 "Date of Shipment" shall mean the date on which the Products are shipped
out "Ex-Works" TANISYS by SIEMENS' appointed forwarder.
1.5 "Purchase orders" (Orders) shall mean the order(s) issued by SIEMENS
confirming purchase of Products from TANISYS requiring delivery within the
time frame indicated in the order.
1.6 "Specification" means the technical description of goods contained or
referred to in the order.
1.7 "Allowed Capacity" is the capacity TANISYS has dedicated for SIEMENS.
1.8 "Golden Devices" shall mean Products, tested by SIEMENS using the tester
and the test programs as well the test protocols containing the respective
results.
1.9 "Subsidiaries" shall mean legal entities controlled directly or indirectly,
by capital or votes, by fifty percent or more by SIEMENS or TANISYS, but
only as long as the entities are so controlled.
1.10 "Requirements for Quality Assurance" shall mean the general quality
requirements for processing of Devices enclosed as Attachment E to this
Agreement, including any future updates or modifications of Attachment E.
3
1.11 "Packing Specification" shall mean the specification according to which
the Products shall be packed and labelled by TANISYS using the material as
specified in the "Packing specification", which is part of the "Processing
specification".
1.12 "Processing specification" (see Attachment E) shall mean the specification
and documentation for testing, burn-in and packing as well as specific
quality requirements agreed upon in the written form between the parties
for processing of the Products. For each type of Products or a family of
Products, a "Processing specification" shall be agreed upon between the
parties.
1.13 "Electronic Mail", "Internet" or "Electronic Data Interchange" (EDI) shall
mean those communications governed by the EDI Agreement attached as
Attachment F.
1.14 "Ex Works TANISYS" shall mean that title and risk of loss to the Products
will be transferred from TANISYS at the time at which TANISYS deposits the
properly packed Products with the freight carrier designated by SIEMENS at
TANISYS' facilities, or delivered to customer location. TANISYS will use
SIEMENS' shipping accounts when possible.
1.15 "FCA (Free Carrier) TANISYS" shall mean that SIEMENS will provide the DRAMs
to TANISYS' facilities for use per this Manufacturing Agreement with all
related charges until they reach that site paid by SIEMENS.
1.16 "SIEMENS" means legal entity, and means the list of contacts as specified
in Attachment G.
2. SCOPE OF WORK
Subject to these terms and conditions, TANISYS shall, in accordance to
instructions from SIEMENS, manufacture, test and ship quantities of Products
to SIEMENS or to those companies or locations to which SIEMENS directs
(Customers). On acceptance by SIEMENS or upon receipt by the Customer of
those Products, TANISYS shall be paid the amounts specified in Attachment B
for such Products.
Upon TANISYS receiving products and signing a "Warehouse Receipt" for any
given shipment, the quantity and description thereon will be deemed an
absolute indication that TANISYS has accepted risk of loss for that quantity
of that item. The only exception will be that TANISYS will be allowed until
the close of business twenty-four (24) hours after receipt of any given
shipment to advise in writing (by FAX) as to any discrepancies at the carton
level; within forty-eight (48) hours at the part number and ident number
detail level.
3. DELIVERY BY SIEMENS
3.1 SIEMENS or its "affiliates" shall deliver to TANISYS free of charge,
subject to respective orders (on the basis "FCA" TANISYS) the quantity of
DRAMs (as defined in Attachment A) necessary to fulfill the Contractor
Manufacturer's obligation according to Article 4 and the Orders placed by
SIEMENS as per Article 7 or 8 below.
4
4. QUALITY ASSURANCE
4.1 QUALITY ASSURANCE MANUAL AND WORKMANSHIP STANDARD
TANISYS shall prepare and submit to SIEMENS, within 30 days following the
Effective Date of this Agreement, an official quality assurance Manual and
workmanship standard and shall implement such standard. SIEMENS may request
alterations to the manual and workmanship standard in order to improve the
overall product quality of the Products. Notwithstanding the above, the
responsibility for such Manual and workmanship standard shall rest with
TANISYS.
4.2 GENERAL INSPECTION SYSTEM
TANISYS shall provide and maintain an inspection system acceptable to
SIEMENS Quality Assurance covering the Products. Records of all inspections
shall be kept complete and available for review by the SIEMENS Quality
Assurance representative in accordance with the data retention periods
specified in the Processing and Quality specification (Attachment E).
4.3 FIRST ARTICLE TEST
If SIEMENS chooses to perform a first article test upon the Products, then
such test may be performed at TANISYS' premises before delivery of the
first quantity shipment of each type or any modified version thereof and
further deliveries shall be subject to successful performance of such test.
Such tests shall be performed at no cost to SIEMENS by TANISYS and under
the observation of the SIEMENS Quality Assurance representative where
necessary.
4.4 QUALIFICATION
Reference devices for the various packages will be submitted by TANISYS
during the initial production to SIEMENS for qualification. The production
shall not start until approval is given by SIEMENS after the qualification
tests on these parts.
4.5 AUDITS
SIEMENS reserves the right to conduct an audit of the Quality Assurance
system or Process Conformance of manufacturing and other fields with
respect to quality, reliability and reporting.
4.6 RECORD RETENTION
Records of all Production and quality data shall be kept for tracking and
available for review by SIEMENS. The data retention period to be as
specified in the Processing and Quality specification (Attachment E).
4.7 FINAL INSPECTION/TEST
TANISYS shall conduct a final inspection test on each Product (100% test)
prior to shipment. Such test shall demonstrate compliance with the
applicable specification of the Products in question. The parties will
agree on the details of such final inspection tests and document same in a
writing signed by both parties (Attachment E).
4.8 SIEMENS PERSONNEL
SIEMENS shall be responsible for the expense of sending any SIEMENS
personnel to TANISYS' premises.
5
4.9 SIEMENS ACCEPTANCE AT DESTINATION
All Products ordered are subject to final acceptance at SIEMENS or its
Customers. SIEMENS or its customers may perform an incoming inspection
test based on random samples according to the quality assurance
instructions. If any Products should fail to pass such test as a result
of TANISYS' work, SIEMENS will notify TANISYS of such defects in writing,
i.e. by E-Mail or FAX. If the Products fail to pass such test based upon
an agreed and correlated test method, SIEMENS may return the failed
Products for rework by TANISYS free of charge with all handling, packing,
forwarding transport cost and insurance cost incurred to be paid by
TANISYS, and
a) TANISYS shall, upon request, promptly supply replacement, or
b) TANISYS shall, if SIEMENS requests it, replace the failed Products
delivery lot free of charge on an emergency basis, or
c) SIEMENS may return the failed Products to TANISYS at no cost to SIEMENS
for respective credit if the failed Products cannot be reworked to
conform with the agreed specification.
5. CHANGE IN PRODUCTS
5.1 SIEMENS may request technical changes of the Products relating to
improvement, reliability, serviceability or to requests of the market,
customers, or requirement of authorities and TANISYS must comply with such
change request. TANISYS will inform SIEMENS within ten (10) working-days
after receiving such requests of the result of its evaluation of the change
in writing. The parties shall mutually agree upon prices and
implementation schedules for such changes.
5.2 If TANISYS proposes to modify or change the Products so as to deviate from
the specifications set forth in Attachment A to this Agreement, TANISYS
shall inform SIEMENS in writing. SIEMENS may approve or disapprove such
modifications or change request and will inform TANISYS in writing thirty
(30) working days after receipt of notice of such a change in request. Such
a proposed modification or change may only be implemented by TANISYS upon
the express approval by SIEMENS. When modification or changes are approved
and introduced into manufacturing, TANISYS shall inform SIEMENS as to final
technical version of change and when the first shipment may be expected.
SIEMENS will then determine how many units of the ordered or forecasted
amount shall be shipped without the modifications or changes until first
shipment takes place according to the new revision level.
5.3 Regarding changes as per Article 5.2 above, TANISYS shall, upon request,
submit to SIEMENS free of charge, samples of the modified Products at
least thirty (30) days before first delivery of said products, for testing
purposes.
6. PURCHASE OF PRODUCTS
The scope of TANISYS' delivery and SIEMENS' purchase obligations shall depend
on the forecasts and Orders placed by SIEMENS in writing.
6
6.1 Issue of "Purchase forecast"
a) Two weeks before the end of each quarter, SIEMENS shall forward a
"Purchase Forecast" (Forecast) setting forth the anticipated demand
for Products by SIEMENS for the succeeding six (6) quarters. The
Forecasts are projections for planning purposes only (see Attachment
C).
b) TANISYS shall ensure sufficient material (such as Printed Circuit
Boards (PCBs) and Packing Material) as specified in Attachment C. If
any change in the design of the Products requires sudden change of PCBs
or packing material, or if a Products is terminated and that
circumstance then renders TANISYS' specific SIEMENS' stock as obsolete
or unusable, SIEMENS shall be financially responsible for TANISYS'
stock of PCB and Packing Material in the quantities specified in
Attachment C.
6.2 Issuing of Order
a) SIEMENS shall issue to TANISYS a firm Order to purchase the quantity
and type of Products. Each Order shall be placed in writing via EDI,
fax or Internet. See Attachment C.
b) The Order shall govern all requirements of the Products by SIEMENS and
deliveries by TANISYS. Only the quantities and type of Products given
therein are firm order commitments.
c) All Orders have to be confirmed within one (1) working day by EDI, fax
or Internet (see Attachment C).
7. LEAD TIMES, EMERGENCY ORDERS
Lead times, "Ex-Works" TANISYS shall for either Products or Replacement
products as specified in Attachment C.
Leadtimes for Emergency orders are separately defined in Attachment C. Any
delay in delivery or pre-scheduled Products to SIEMENS affected by the
emergency order shall not be construed as a delay under Article 9.3, unless
total deliveries made within the relevant period concerned is less than the
quantity deliverable by TANISYS fully utilizing the declared capacity of
TANISYS which is dedicated for SIEMENS' Products. In such case of
under-utilization and delays in delivery, TANISYS shall be liable under
Article 9.3 for the portion short delivered.
Deliveries under emergency orders shall be effected separately. TANISYS shall
notify SIEMENS of the dispatch date (flight number, AWB number) by EDI, fax
or Internet.
8. DELIVERY OF PRODUCTS/LATE DELIVERIES
8.1 Delivery shall be effected on the basis delivered "Ex-Works" TANISYS to
SIEMENS' appointed forwarder. Each delivery shall be accompanied with
appropriate shipping papers. All dispatch notes and/or invoices must
include the Order number, the part numbers of Products shipped and any
other information specified in the Order.
8.2 Title and risk of loss shall pass upon delivery of product to SIEMENS'
specific customer locations or to SIEMENS' appointed freight forwarder.
SIEMENS shall indicate, in writing, a specific freight forwarder or means
of transportation or routing to TANISYS and TANISYS shall comply with such
directions. The Products shall be packed suitable for road/air
transportation as agreed with the SIEMENS' appointed freight forwarder.
7
8.3 DELAYS
a) TANISYS shall make its best effort to ensure on-time delivery of the
Products. If TANISYS is in default with the delivery of Products
except by reasons of Force Majeure, Article 15, and/or delayed delivery
of parts and components supplied by SIEMENS, SIEMENS may claim
liquidated damages in the amount of 0.2% (two-tenths percent) of the
Tanisys invoice as per Attachment B "Assembly Pricing" for the
respective late delivered Products for every calendar day of the delay
from the "Date of Shipment" which is confirmed or deemed accepted by
TANISYS according to Section 6.2. The liquidated damages may accrue up
to a maximum amount of 5% (five percent) in total or five thousand
dollars ($5,000.00) maximum, notwithstanding any other rights SIEMENS
may have.
b) In addition to these rights, any delays extending for more than a week,
regardless of the cause (even if caused by late deliveries of TANISYS'
subcontractors), SIEMENS shall be entitled to cancel the order wholly
or in part without incurring any liability, and shall re-order the
quantities according to then existing needs of SIEMENS after the
circumstances interrupting the delivery have ended.
8.4 If any circumstances should arise which could result in a delayed delivery
of parts to TANISYS or of Products by TANISYS, the parties shall promptly
notify each other.
8.5 TANISYS shall only deliver full boxes of Products. Any incompletely filled
boxes shall be retained by TANISYS and delivery made together with Products
in the next Production Lot.
TANISYS shall deliver to SIEMENS on the 15th of each month:
a) All incomplete filled boxes of Products, and
b) All scrap DRAMs and modules for disposal by SIEMENS.
9. PRICES AND TERMS OF PAYMENT
9.1 Prices for the Products as stated in Attachment B to this Agreement are in
U.S. Dollars, on the basis of delivery "Ex-Works" TANISYS and including
appropriate packaging as specified by SIEMENS.
9.2 PRICING ADJUSTMENTS
a) The prices stated in Attachment B are fixed for the period stated in
Attachment B except in the case of changes under Article 5. The
parties will review the market conditions, currency effect, material
and labor cost influencing the price to be fixed for the next SIEMENS
fiscal year (October through September) in good faith, on an annual
basis, within the period of the last quarter of each SIEMENS fiscal
year and mutually agree and decide the price applicable for the next
SIEMENS fiscal year which price shall reflect the result of reviewing
the aforesaid factors.
b) However, the parties will review, in good faith, the market conditions,
currency effect, material and labor cost specifically costs affecting
printed circuit board and packing material and volumes influencing the
prices, on a quarterly basis, three weeks before the end of each
quarter and will mutually update the price applicable for the next
SIEMENS' quarter to reflect the result of reviewing these factors.
c) If the parties cannot work out a mutually acceptable solution, either
party may terminate this Agreement with six (6) months written notice.
Notwithstanding such right of termination, TANISYS shall continue to
deliver Products at the most recent contractual prices during this six
months' period. However, if the parties come to an agreement for
solution within such six (6) months from the notice of termination,
then the new price shall be supplied retro-actively from
8
the date of termination notice and the respective party shall compensate
the other party the difference of the Purchase Price accrued from that
date.
9.3 TERMS OF PAYMENT
Payment shall be due thirty (30) days net after receipt of the respective
invoice from TANISYS.
10. WARRANTY/DEFECTS OF EPIDEMIC NATURE
TANISYS warrants that the Products conform with the applicable specifications
and are free from defects in material and workmanship subject to these
conditions:
10.1 The warranty period for the Products shall end at the earlier of
thirty-six (36) months after the delivery to Customers or receipt of the
Products by SIEMENS.
10.2 If any Products supplied by TANISYS fails to conform with this warranty
due to manufacturing defects, TANISYS shall replace at its sole cost and
expense such defective Products without delay after receipt of SIEMENS'
return shipment. The expenses required for returning such defective
Products to TANISYS shall be borne by SIEMENS; the expenses required for
re-sending Products to SIEMENS or to its Customer shall be borne by
TANISYS.
If, within thirty (30) days after receipt at TANISYS, such replacement
Products are not shipped, SIEMENS shall have the right to replace the
defective Products with products from TANISYS' latest shipment or
SIEMENS' stock which shall then be deemed as replacement under
warranty. TANISYS shall ship on an emergency basis and on its own
account such number of Products as to make up for the thus diminished
SIEMENS stock.
10.3 Replacements shall be subject to a new 36 month warranty period,
beginning with the receipt of the product by SIEMENS or its Customer.
10.4 If defects or malfunctions which appear to be excessive or of an
epidemic nature result from the manufacturing or use of unsuitable
materials by TANISYS, then TANISYS shall take appropriate actions to
remedy such defects in agreement with SIEMENS and in accordance with
reasonable standards applicable to the individual circumstances. TANISYS
shall inform SIEMENS about its actions to be taken within two (2) weeks
after notification.
10.5 The provisions of this Article 10 shall also apply after termination of
this Agreement.
10.6 If any technical problem, defect or malfunction occurs, SIEMENS will
promptly be informed by TANISYS. TANISYS will immediately start
investigations and supply a first substantial answer within five (5)
working days after receipt of SIEMENS' notification.
10.7 TANISYS does not warrant consigned DRAMs, except as to damage or defects
which result from TANISYS' storage or use of the consigned DRAMs.
9
10.8 TANISYS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES EXCEPT THOSE
SPECIFICALLY PROVIDED HEREIN, INCLUDING WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE AND OF MERCHANTABILITY.
11. LIABILITY, RESPONSIBILITY
11.1 It is SIEMENS' responsibility to defend and resolve at SIEMENS' expense
any dispute arising from a claim that the Products infringe a third
party's patent to the extent that the alleged infringement is due to the
use of SIEMENS Information and/or DRAMs supplied by SIEMENS and
incorporated in Products manufactured by TANISYS.
11.2 Notwithstanding Section 11.1 above, it is TANISYS' responsibility to
defend or otherwise resolve at TANISYS' expense any dispute arising from
a claim that the Products infringe a third party's patent, due to
specific components in Products manufactured by TANISYS or purchased by
TANISYS from any third source or due to the manufacturing process
employed by TANISYS unless directly specified by SIEMENS'.
11.3 If a third party alleges an infringement of its patent, then the party
to this Agreement against which this claim is raised shall immediately
inform the other party and both parties shall discuss how to handle
such claim or lawsuit in the best way possible; such discussion limited
to consultations only.
11.4 SIEMENS shall indemnify and hold TANISYS harmless against any claims,
costs and expenses due to non-patent claims related to the Products
which arise from TANISYS' use of SIEMENS SUPPLIED Information or DRAMs
supplied by SIEMENS.
11.5 TANISYS shall indemnify and hold SIEMENS (and/or SIEMENS'
Subsidiaries/Affiliates and/or its Customers) harmless against any
claims, costs and expenses due to any other liability than SIEMENS
liability as per Sections 11.1 and 11.4. TANISYS may at SIEMENS'
request maintain general comprehensive liability insurance in a minimum
amount of $_______; in such case SIEMENS shall be named as an additional
insured. SIEMENS reserves the right to carry such general comprehensive
liability insurance concurrent with existing SIEMENS insurance policies
in effect.
11.6 These indemnities are conditioned upon the party seeking indemnification
promptly notifying the other party; making no admissions of liability
and cooperating in the defense of the claim.
11.7 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES THAT RESULT FROM PERFORMANCE UNDER THIS
AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
12. ARBITRATION
12.1 SIEMENS and TANISYS shall attempt in good faith to resolve any dispute
arising out of or relating to this Agreement promptly by negotiation
between executives who have authority to
10
settle the controversy. The executive will be at the CEO, CFO or COO
level and will not have had direct responsibility for administration of
this Agreement. Either party may give the other written notice of any
dispute not resolved in the ordinary course of business. Within fifteen
(15) days after delivery of the notice the party receiving the notice
shall submit to the other a written response.
The notice and response shall include a statement of the party's
positions regarding the matter in dispute, a summary of arguments in
support, and the name and title of the executive who will represent that
party and any other person who will accompany that executive. Within 30
days after delivery of the initial notice, the designated executives
shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary to attempt to resolve the
dispute. All reasonable request for information made by one party to the
other shall be honored in a timely fashion.
All negotiations conducted pursuant to this Section 12 (and any of the
party's submissions in contemplation hereof) shall be kept confidential
by the parties and shall be treated by the parties and their respective
representatives as compromise and settlement negotiations for purposes
of the Federal Rules of Evidence and any similar state rules.
12.2 If any matter in dispute arising under this Agreement has not been
resolved within sixty (60) days after delivery of the notice or if the
parties fail to meet within thirty days (30) days, the matter will be
submitted to binding arbitration. Either party may initiate binding
arbitration as contemplated herein.
Either party (the claimant) may give written notice to the other
(respondent) of its intention to arbitrate, which notice shall contain a
statement setting forth the nature of the dispute, the amount involved,
if any, and the remedy sought, and file with the appropriate office of
the American Arbitration Association three copies of the notice and
three copies of the arbitration provision of this Agreement, together
with the appropriate filing fee as provided in the Schedule on page 21
of the AAA Commercial Rules as Amended and Effective on November 2, 1993.
The AAA shall give notice of such filing to the respondent which may
file an answering statement in duplicate with the AAA within ten days
after notice from the AAA, in which event the respondent shall at the
same time send a copy of the answering statement to the claimant. If a
counterclaim is asserted, it shall contain a statement setting forth the
nature of the counterclaim, the amount involved, if any, and the remedy
sought. If a counterclaim is made, the appropriate fee shall be
forwarded to the AAA with the answering statement. If no answering
statement is filed within the stated time, it will be treated as a
denial of the claim. Failure to file an answering statement shall not
operate to delay the arbitration.
12.3 The AAA Commercial Arbitration Rules, as modified or revised by the
provisions herein, shall govern these proceedings. The arbitration shall
be conducted by three arbitrators, one selected by each party and the
third selected by those two arbitrators. After the arbitrators are
selected, the parties agree to try in good faith to settle the dispute
by mediation administered by the American Arbitration Association under
its Commercial Mediation Rules.
12.4 The place of the arbitration proceedings shall be San Francisco,
California if TANISYS initiates the arbitration and in Austin, Texas if
SIEMENS initiates the arbitration. The decision of the arbitration panel
shall be rendered in writing.
11
12.5 The parties agree that procedural rules will be those of the State in
which the arbitration is to OCCUR, as amended by this Agreement. In
addition, the parties agree that discovery will take place informally to
the extent possible through document production, interrogatories limited
to identification of witnesses and documents and no more than five (5)
depositions per side.
13. SUBSTANTIVE LAW
All disputes shall be settled in accordance with the provisions of this
Agreement and all other Agreements regarding its performance, in accordance
with the substantive law of the State identified in Section 12.4 (except for
its conflict of laws provision) without reference to other law. The United
Nations Convention on contracts for the International Sale of Goods of April 1,
1980 shall not apply.
14. CONFIDENTIALITY
14.1 The parties undertake to keep secret, even after termination of this
Agreement, Confidential Information furnished hereunder insofar as, and
as long as, it has not otherwise lawfully come into the public domain or
the party which disclosed the information has not consented in writing
that it may be disclosed to third parties.
14.2 The parties further agree that it will only use Confidential Information
supplied under this Agreement for purposes set forth in this Agreement.
14.3 Information shall not be subject to the above confidentiality provisions
to the extent that a party can demonstrate that the information
- is known to or is in the possession of that party before transmission
by the other party;
- became legally available to that party from a source other than the
other party or is in or passed into the public domain other than by
reach of this Agreement;
- is developed independently by that party;
- the disclosure of which is expressly authorized by the other party.
14.4 Except as required by law, neither party shall disclose the existence of
this Agreement, including insurance coverage and values thereunder,
except as mutually agreed.
15. FORCE MAJEURE
Neither party shall be liable to the other for failure or delay in the
performance of any of its obligations under this Agreement for the time and
to the extent such failure or delay is caused by Force Majeure such as, but
not limited to, riots, civil commotion, wars, hostilities between nations,
governmental laws, orders or regulations, actions by the government or any
agency thereof, storms fires, strikes, lockouts, sabotages, explosion or any
other contingencies beyond the reasonable control of the respective party and
of its sub-contractors or supplier. In such events, the affected party shall
immediately inform the other party of such circumstances together with
documents of proof, if any, and the performance of obligations hereunder
shall be suspended during, but not longer than, the period of existence of
such cause and the period reasonable required to perform the obligations in
such cases.
Should a circumstance of Force Majeure continue without interruption for a
period of more than six (6) months, then either party has the right to
forthwith terminate this Agreement and/or the respective
12
individual orders by registered letter. The parties may also negotiate for a
reasonable extension or adjustment of this Agreement.
16. TERM AND TERMINATION
16.1 This Agreement shall be in effect for a period of two (2) years and
shall be extended automatically by periods of one year each unless
terminated by written notice at least six (6) months before the end of
such 2 year period or the end of a one year extension period. The term
of notice shall be six (6) months.
16.2 This Agreement may by written notice be prematurely terminated with
immediate effect by the party having such right as herein provided, and
notwithstanding any other rights such party may have, upon the
occurrence of either one or more of the events stated below:
- by either party if the other party voluntarily files a petition in
bankruptcy or has such a petition involuntarily filled against it
(which petition is not discharged within ninety (90) days after
filing), or is placed in an insolvency proceeding, or if an order
is entered appointing a receiver or trustee for a levy or
attachment is made against a substantial portion of its assets
which order shall not be vacated, set aside or stayed within
thirty (30) days from date of entry, or if any assignment for the
benefit of its creditors is made.
- by either party if the other has failed substantially in the
performance of any material contractual obligation, provided that
such default is not remedied to the other party's satisfaction,
within sixty (60) days after written notice to the other party
specifying the nature of such default and requiring remedy of the
same.
16.3 A waiver of any default by either party of any of the terms and
conditions of this Agreement but shall apply solely to the instances to
which such waiver is granted.
16.4 In the event of termination of this Agreement, SIEMENS shall be entitled
to request delivery of, and TANISYS shall be obliged to deliver, subject
to the terms of this Agreement, all quantities of Products ordered from
TANISYS before the Effective Date of termination.
17. PROVISIONS COVERING THE TIME AFTER TERMINATION
17.1 After termination of this Agreement, TANISYS shall continue to supply to
SIEMENS according to the terms of this Agreement Products which SIEMENS
needs in order to fulfill contractual delivery obligations which have
been entered into on the basis of quotations before termination of this
Agreement; SIEMENS will continue to meet its payment obligations under
this Agreement.
17.2 When this Agreement is terminated, either party shall, upon written
request by the other, return all Confidential Information received, as
well as all copies made of such Confidential Information.
17.3 This Article 17 shall survive the termination of this Agreement.
13
18. MISCELLANEOUS
18.1 For orders placed by SIEMENS under this Agreement no other conditions
than those specified herein shall be applicable.
18.2 All changes and amendments to this Agreement must be in writing to be
valid. This requirement of written form can only be waived in writing.
18.3 Notices and communications between TANISYS and SIEMENS shall be given in
writing or by FAX or E-Mail in English Language to the following
addresses of the parties or to such other address as the party concerned
may subsequently notify in writing to the other party:
If to TANISYS: TANISYS Technology, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FAX: 512/▇▇▇-▇▇▇▇
If to SIEMENS: SIEMENS Components, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ Du Preez, Director, Memory Products
FAX: 408/▇▇▇-▇▇▇▇
18.4 TANISYS shall not be permitted to assign this Agreement, or parts
thereof, or any right or obligation hereunder, wholly or partially to
any third party (which term includes "Subsidiaries") without the prior
written consent of SIEMENS. SIEMENS shall not be permitted to assign
this Agreement, or rights or obligations hereunder, wholly or partially
to any third party, without the prior written consent of TANISYS.
However, SIEMENS shall be permitted to assign the contract to any entity
formed by or resulting from changes in the structure of SIEMENS
activities in the U.S., so long as the resulting entity continues to be
part of the Siemens family.
18.5 If for any reason a court of competent jurisdiction finds any provision
of this Agreement, or portion thereof, to be unenforceable, that
provision of this Agreement shall be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder
of this Agreement shall continue in full force and effect.
18.6 The titles to the Articles of this Agreement are for convenience or
reference only and are not part of this Agreement and shall not in any
way affect its interpretation.
18.7 When this Agreement becomes effective, it shall constitute the entire
understanding and agreement between the parties with respect to the
manufacture of Products, and shall supersede and cancel all previous
agreements, negotiations and commitments, either oral or written.
18.8 All rights and remedies conferred under this Agreement or by any other
instrument or law shall be cumulative, and may be exercised singularly
or concurrently. Failure by either party to enforce any provision of
this Agreement shall not be deemed a waiver of further enforcement of
that or any other provision.
18.9 THE PARTIES agree to comply with all U.S. federal, state, and local laws
and regulations that are applicable to the Products.
14
19. EXPORT REGULATIONS
SIEMENS Information and supplies and products to be provided under this
Agreement are subject to governmental export regulations and the obligations
to provide same are subject to receipt of appropriate approvals.
TANISYS agrees to use the freight carrier so designated by SIEMENS which will
handle all coordination, brokerage and customs activities for all export
activity.
20. ORDER OF PRECEDENCE
In the event of any contradiction occurring between the various documents
contained in this Agreement, the order of precedence shall follow the order
listed below with the first item (1) having first precedence and the last
item enjoying lowest precedence.
1. This AGREEMENT: SIEMENS TANISYS
2. ATTACHMENTs: In ascending Order (A, B, ....)
15
IN WITNESS THEREOF, the parties hereto have caused this Manufacturing
Agreement to be executed by their duly authorized representatives as of the
date first written above.
TANISYS TECHNOLOGY, INC. SIEMENS COMPONENTS, INC.
__________________________ __________________________
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ Du Preez
----------------------------------- ----------------------------------
By By
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ DU PREEZ
----------------------------------- ----------------------------------
Printed Name Printed Name
PRESIDENT & CHIEF OPERATING OFFICER DIRECTOR, MEMORY PRODUCTS
----------------------------------- ----------------------------------
Title Title
11/20/96 11/20/96
----------------------------------- ----------------------------------
Date Date
/s/ ▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- ----------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- ----------------------------------
Printed Name Printed Name
CHIEF FINANCIAL OFFICER DIRECTOR, CORPORATE CONTROLLING
----------------------------------- ----------------------------------
Title Title
11/20/96 11/21/96
----------------------------------- ----------------------------------
Date Date
16
