\n 0 – 15 None 1 – 5 None
\n 16 – 30 20% or less 6 – 10 20% or less
\n 31 – 45 40% or less 11 – 20 40% or less
\n 46 – 60 75% or less 21 – 25 75% or less
\n 61 and up 100% or less 26 and up 100% or less<\/p>\n<\/c><\/c><\/c><\/caption>\n<\/table>\n
The rescheduling rights for configured Product provided above assumes
\n that Mylex has entered into a SIMM supply contract that is reasonably
\n acceptable to Dovatron.<\/p>\n
2.5 IMPACT OF RESCHEDULING. With respect to any Products, and related
\n components, the rescheduling of which is beyond the limits specified in
\n Section 2.4, Mylex shall be responsible for (a) Dovatron’s fully burdened
\n cost, as defined below and as quoted by Dovatron in Exhibit A hereto or
\n any amendments thereto, (b) work-in-progress in an amount to be
\n negotiated by the parties (not <\/p>\n
3<\/p>\n
to exceed the quoted price of the finished Product), and (c) finished
\n Products at the quoted price in Exhibit A hereto or any amendments
\n thereto. Mylex’s responsibility for Dovatron’s inventory of
\n non-cancelable or non-returnable components for Products shall be as
\n provided in Section 2.8 below. After forty-five (45) days from
\n Dovatron’s receipt of a generic Product at its Fremont, California
\n facility, but not earlier than the date by which a Product must be
\n completed to meet the delivery requirements of the applicable Forecast
\n (the “Required Completion Date”), inventory not ordered by Mylex will
\n be moved to an internal secured consigned inventory location and
\n billed to Mylex at prices or a formula to be agreed to by each of the
\n parties, each as set forth in Exhibit A hereto or any amendments
\n thereto, with payment terms as provided in 3.1. Dovatron shall give
\n Mylex prompt written notice of its receipt of a generic Product.
\n Inventory not consumed after forty-five (45) days in the consigned
\n inventory location will be the responsibility of Mylex and, five (5)
\n days after the end of such 45-day period, will be shipped from the
\n Dovatron location to the non-Dovatron location designated by Mylex, at
\n the expense of Mylex. Mylex will be billed the fully burdened cost,
\n as defined below and as quoted by Dovatron in Exhibit A hereto or any
\n amendment thereto, minus the amount billed (and paid) with respect to
\n the initial transfer of such inventory to the consigned inventory
\n location, with payment terms as provided in 3.1. Notwithstanding the
\n foregoing, Mylex, at its election, may choose, by written notice to
\n Dovatron, to have Dovatron hold any such inventory for up to an
\n additional forty-five (45) days upon the parties reaching a mutually
\n acceptable agreement with respect to an additional fee for Dovatron
\n providing such service. Dovatron’s fully burdened cost for any
\n component or sub-assembly shall be its out-of-pocket cost to acquire
\n such item, plus XXX%, and its labor cost for the related Product as
\n quoted by Dovatron. Dovatron’s fully burdened cost for any completed
\n or partially completed Products shall be its fully burdened cost for
\n the components and\/or sub-assemblies actually used in such Product
\n plus Dovatron’s labor costs directly attributable to the manufacture
\n of such Product. Such labor costs shall be calculated by Dovatron,
\n utilizing normal manufacturing industry practice for such
\n calculations. Dovatron shall provide Mylex with its written
\n calculation, in reasonable detail, of its fully burdened cost, in each
\n instance, and such calculation must be reasonably acceptable to Mylex.<\/p>\n
2.6 ENGINEERING DESIGN CHANGES. If Mylex should request any engineering
\n change order for any Product, Dovatron will give Mylex written notice,
\n within three business days of receiving written notice at such request,
\n of the date by which, and at what cost, such engineering change order
\n could be implemented. Mylex shall be responsible for any increase in
\n such costs (net of any savings of costs), due to an engineering change
\n order, to which it agrees in writing.<\/p>\n
2.7 QUALITY PROGRAM. Each of the parties shall comply with the quality
\n program requirements described in Exhibit C hereto.<\/p>\n
2.8 CANCELLATIONS. In the event that Mylex wishes to cancel some quantity of
\n units of Products ordered pursuant to this Agreement, Dovatron, upon
\n receipt of such written notice of such cancellation, shall stop work on
\n such units of Products to the extent specified therein. Mylex’s
\n termination liability for a cancellation shall be limited to the
\n following.<\/p>\n
A. Payment for all units of Products delivered to Mylex, or in the
\n process of being delivered at the time, plus finished units of
\n Products in inventory prior to, and including, the <\/p>\n
4<\/p>\n
effective date of cancellation, at then applicable unit prices
\n for such Products;<\/p>\n
B. Payment for all work-in-process on units of Products based upon
\n percentage of completion, as reasonably determined by Dovatron and
\n written notice, in reasonable detail, of which is given to Mylex
\n within two business days of the effective date of cancellation,
\n multiplied by the then applicable unit price of such Products,
\n including units of Products which were in process prior to receipt
\n of notice of cancellation and that could not be completed by the
\n cancellation date. Mylex has the right to require Dovatron to
\n complete any such units on a reasonable schedule acceptable to
\n both of the parties.<\/p>\n
C. Payment, at Dovatron’s fully burdened cost (as defined above), for
\n components in-house and on order which cannot be canceled or
\n returned, provided that such components are Permitted Components.<\/p>\n
D. Payment of any restocking charges, “bill-backs” and cancellations
\n charges received by Dovatron from suppliers for Permitted
\n Components and approved by Mylex.<\/p>\n
Dovatron shall use its best efforts to minimize cancellations charges by
\n returning components for credit (with Mylex’s approval), canceling
\n components on order and applying components to other Dovatron projects
\n (when possible, at the sole discretion of Dovatron) and minimizing all
\n work-in-process and finished goods in support of the final production
\n schedule. Upon payment of the cancellation charges for any completed
\n Products, work-in-process, or Permitted Components in-house or on order,
\n such items shall become the property of Mylex, F.O.B. Dovatron (at the
\n applicable Dovatron facility), and, at Mylex’s election and expense,
\n shall be delivered to a location identified to Dovatron by Mylex or, at
\n Mylex’s direction, disposed of by Dovatron.<\/p>\n
2.9 NEW PRODUCTS\/COST PERFORMANCE.<\/p>\n
A. Quotations by Dovatron for new products will be developed by use
\n of the mutually agreed upon pricing model set forth on Exhibit A
\n hereto. Each such quotation requested by Mylex shall be provided
\n to Mylex on an expeditious basis. Each of the parties shall
\n jointly develop a mutually agreeable quality program for each new
\n product.<\/p>\n
B. During each calendar quarter, beginning with the second quarter of
\n 1999, the parties will jointly review overall cost and volume
\n performance of Dovatron and Mylex, respectively, and other
\n performance parameters to be mutually agreed upon by the parties.
\n The pricing model referenced in subparagraph A above shall be
\n jointly reviewed by the parties at an agreed upon frequency and
\n may be modified with the mutual agreement of the parties.<\/p>\n
2.10 APPROVAL OF LOCATION. Mylex shall have the right to approve each
\nlocation at which Dovatron is providing any of its services hereunder.<\/p>\n
5<\/p>\n
SECTION 3.0 PAYMENT AND SHIPPING TERMS<\/p>\n
3.1 INVOICES AND PAYMENT. <\/p>\n
A. Dovatron shall invoice Mylex upon shipment of configured Product.
\n Payment for such Product is due net thirty (30) days from date of
\n shipment and may be made by check or wire transfer. Should Mylex
\n fail to make payment within thirty (30) days after date of
\n invoice, Dovatron may, at its option, if it gives Mylex written
\n notice, in reasonable detail, of such failure and Mylex does not
\n cure such failure within five (5) business days of its receipt of
\n such notice, (i) cease shipments to Mylex and\/or (ii) make some or
\n all future shipments C.O.D. Daily interest at the rate of 1.5%
\n per month shall accrue and be charged, until paid, on all payments
\n not received by Dovatron within such thirty (30) day period.<\/p>\n
B. Each of the parties will meet weekly to resolve any outstanding
\n shipment or payment disputes in order to ensure timely resolution
\n of such disputes. Any party disputing a shipment or payment shall
\n promptly describe such dispute in writing, in reasonable detail,
\n and provide such description to the other party.<\/p>\n
C. Products that have been in inventory in excess of forty-five (45)
\n days after the Required Completion Date shall be paid for as
\n provided in this paragraph. Dovatron will provide Mylex with a
\n written listing, in reasonable detail, of all such Products,
\n including its applicable purchase price. Mylex shall pay Dovatron
\n for such Products within ten (10) days of its receipt of the
\n listing for such Products; provided, however, Mylex may, to the
\n extent applicable, set off any such payment against amounts owed
\n to Mylex by Dovatron pursuant to this Agreement.<\/p>\n
3.2 PACKAGING AND SHIPPING. Dovatron shall package each unit of Product to
\n Mylex’s specifications, or, if not specified by Mylex, to good commercial
\n standards. All shipments made by Dovatron to Mylex or a customer of
\n Mylex shall be F.O.B. Dovatron shipping point. Title and risk of loss or
\n damage to a Product shall pass from Dovatron to Mylex upon delivery of
\n such Product to the F.O.B. shipping point. Shipments to Mylex or its
\n customer will be made in accordance with Mylex’s specific routing
\n instructions, including method of carrier to be used.<\/p>\n
3.3 SECURITY INTEREST. Dovatron reserves a purchase money security interest
\n in each unit of the Products produced pursuant to this Agreement in the
\n amount of the purchase price therefor. This interest will be satisfied
\n by payment in full for such units of the Products. Mylex agrees to
\n execute, and to allow Dovatron to file, any and all documents, including,
\n without limitation UCC documents, as may be reasonably necessary to
\n perfect such purchase money security interest.<\/p>\n
6<\/p>\n
SECTION 4.0 WARRANTY<\/p>\n
4.1 WARRANTY. Dovatron warrants to Mylex that each of the Products
\n manufactured, configured or tested by Dovatron will have been
\n manufactured, configured and tested in conformance with the
\n Specifications therefor and be free from defects in workmanship under
\n normal use and service for a period of one-hundred eighty (180) days
\n after shipment by Dovatron. Dovatron shall be responsible for
\n procurement of components, incoming inspection, and safe handling of
\n the components while in-house at Dovatron. Mylex shall be responsible
\n for the selection of all components, as well as ensuring the quality
\n of the vendors and the compatibility of the components. Mylex is also
\n responsible for designing a product which does not unduly stress the
\n components being used. Dovatron’s obligation under this warranty is
\n limited to replacing, repairing, or issuing credit for any Products
\n that do not meet such Specifications or are defective in workmanship.
\n Dovatron shall repair or replace any such Product, and deliver the
\n repaired or replacement unit to Mylex, within twenty (20) days of
\n Dovatron’s receipt of such Product. No units of Products for which
\n action may be required under this warranty shall be returned to
\n Dovatron’s manufacturing facility, F.O.B. Mylex, without an
\n accompanying Dovatron supplied Returned Materials Authorization
\n number, which Dovatron shall grant on request and Mylex showing a
\n reasonable basis for such return. In the event a returned unit of a
\n Product is found not to meet such Specifications or to be defective in
\n workmanship, Dovatron shall be responsible for the cost of shipping
\n such unit of Product to Dovatron and back to Mylex or its customer.
\n If a returned unit of Product is not so found, Mylex shall be
\n responsible for such costs of shipping. Mylex will cooperate with
\n Dovatron in its efforts to determine whether a defect in a unit of
\n Product exists and to repair any defective unit of Product. Dovatron
\n shall assign to Mylex any warranties for components or sub-assemblies
\n it purchases under this Agreement and cooperate with Mylex in its
\n efforts to exercise its rights under such warranties.<\/p>\n
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY,
\n EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND
\n FITNESS FOR PARTICULAR PURPOSE AND FOR ALL OTHER OBLIGATIONS OR
\n LIABILITIES ON DOVATRON’S PART.<\/p>\n
DOVATRON NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR
\n DOVATRON ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF PRODUCTS TO
\n MYLEX OR ITS CUSTOMERS. THIS WARRANTY SHALL NOT APPLY TO ANY UNITS OF
\n PRODUCTS WHICH SHALL HAVE BEEN REPAIRED OR ALTERED OTHER THAN BY DOVATRON
\n OR WHICH SHALL HAVE BEEN SUBJECT TO MISUSE, NEGLIGENCE, OR ACCIDENT.
\n DOVATRON IS NOT LIABLE FOR PERSONAL INJURY RESULTING DIRECTLY OR
\n INDIRECTLY FROM THE DESIGN, MATERIAL, OPERATION OR INSTALLATION OF ANY
\n UNITS OF PRODUCTS, OTHER THAN FOR PERSONAL INJURY RESULTING SOLELY FROM
\n WORKMANSHIP.<\/p>\n
NEITHER PARTY IS LIABLE FOR ANY INCIDENTIAL, CONSEQUENTIAL OR SPECIAL
\n DAMAGE OF ANY KIND WHATSOEVER IT MAY CAUSE, EVEN IF IT IS MADE AWARE OF
\n THE POSSIBLE OCCURRENCE OF ANY SUCH DAMAGE.<\/p>\n
7<\/p>\n
SECTION 5.0 RESPONSIBILITY FOR ADDITIONAL COSTS AND EXCESS INVENTORY<\/p>\n
5.1 EXCESS INVENTORY. In the event that Dovatron purchases or orders
\n non-cancelable or non-returnable components in order to meet Mylex’s
\n requirements as set forth in any Forecast or purchase order, Mylex
\n shall be required to purchase the unused portion of such components
\n from Dovatron upon demand if (i) Mylex fails to purchase units of
\n Products, including such components, in accordance with such Forecast
\n or purchase order, and (ii) Dovatron cannot otherwise use such
\n components at no cost to it, other than the purchase price therefor.
\n Mylex will pay for such inventory in the amounts and at the times
\n contemplated by Section 2.5.<\/p>\n
5.2 COST ADJUSTMENTS. Product pricing shall remain firm for units of
\n Products on Mylex purchase orders received by Dovatron, except as
\n follows:<\/p>\n
A. The quoted cost of all components and sub-assemblies in each
\n Product subject to this Agreement is or will be set forth on
\n Exhibit A or an amendment thereto. In the event there is an
\n increase or decrease in the cost of a component or
\n sub-assembly, or the labor content (as normally defined in the
\n manufacturing industry), of a Product (which has not been
\n ordered as of such increase or decrease) which affects the
\n purchase price of such Product, Dovatron shall document such
\n increase or decrease in costs and provide such information to
\n Mylex in writing, in reasonable detail, within five (5)
\n business days of Dovatron becoming aware of such increase or
\n decrease. In the case of an increase, both parties may
\n mutually pursue alternative pricing in order to retain the
\n original cost. If such an alternative cannot be attained
\n within a reasonable period of time, the purchase prices in
\n Exhibit A for units of the affected Product shall be adjusted
\n to reflect the actual amount of such increase. No increase or
\n decrease in such costs for a Product shall be passed on to
\n Mylex unless and until the aggregate changed costs for such
\n Product, after taking into account all increases and decreases
\n in such costs not previously made, exceeds one percent of the
\n then purchase price of such Product. As appropriate in the
\n circumstances, as determined by Mylex in its sole discretion,
\n Mylex will commit such engineering resources as may be
\n necessary to qualify an alternative source component if its
\n preliminary review of the engineering specifications for such
\n alternative source component shows that it provides enhanced
\n management of supply or cost improvements or adequately
\n addresses any end-of-life issues for a then utilized component.<\/p>\n
B. Mylex will be responsible for costs and expenses of Dovatron
\n specified below not included in the purchase price for a Product,
\n and shall pay for such costs and expenses within thirty (30) days
\n of receiving an invoice therefor, where the cause is due to any of
\n the following actions by Mylex:<\/p>\n
1. Overtime charges and other actual out-of-pocket expenses
\n approved by Mylex and incurred as a result of material
\n delays in the normal production or material interruption in
\n the work flow process where such delays or interruptions
\n are caused by: (a) Mylex changes in specifications or
\n product test which impact a build in progress; or (b)
\n Mylex’s failure to provide sufficient quantities or a
\n reasonable quality level of consigned components where
\n necessary to sustain the <\/p>\n
8<\/p>\n
required production schedule.<\/p>\n
2. Any Permitted Component that is rendered obsolete as a
\n result of a Mylex engineering, field, manufacturing,
\n design, test, or other change. Such obsolete inventory
\n shall be invoiced to Mylex at its fully burdened cost, as
\n defined above. Each such component shall be packaged and
\n delivered to Mylex by Dovatron, F.O.B. Dovatron shipping
\n point, within thirty (30) days of the change effective date
\n and invoiced as of the shipment date thereafter.<\/p>\n
3. Out-of-pocket expenses incurred due to extraordinary
\n packaging requirements imposed by Mylex.<\/p>\n
4. Any expedite fees referenced in Section 2.4 above.<\/p>\n
SECTION 6.0 FUNCTIONAL TEST<\/p>\n
A. Mylex will provide to Dovatron, for its use and at Mylex’s
\n expense, appropriate functional test equipment, as may be mutually
\n agreed upon by Mylex and Dovatron from time to time, reasonably
\n necessary to allow Dovatron to meet all product and production
\n commitments of Dovatron under this Agreement. Mylex will also
\n provide, at its expense, the technical support and maintenance to
\n ensure all such functional test equipment is kept in proper
\n working order. Dovatron will ensure that adequate physical asset
\n controls for such equipment are continually maintained and the
\n equipment is used for the purposes contemplated by this Agreement
\n and in compliance with the manufacturer’s specifications for such
\n usage. If Dovatron is negligent in the use or care of any of such
\n equipment, or breaches any of its obligations with respect to such
\n equipment, it will be responsible for the cost of repair or
\n replacement of such equipment.<\/p>\n
B. Mylex will be responsible to pay the fully burdened cost, as
\n defined above, of each generic Product that does not pass
\n functional or configuration testing but passes in-circuit testing
\n and complies with all Mylex and IPC 610 class 2 specific
\n requirements. Dovatron will engage in best efforts to debug any
\n failed Product and will run the failed Product through its process
\n (i.e., rework\/test) three times in a thirty (30) day period.
\n Mylex will be promptly notified of the results of each such
\n rework\/test. Each Product(s) that fails to pass such testing,
\n after such three rework\/tests, will be delivered to Mylex and
\n billed to Mylex pursuant to the terms of this Agreement. If
\n subsequent analysis by Mylex shows that the failure of a Product
\n was a result of Dovatron’s manufacturing, including without
\n limitation, configuration process, Dovatron will release an RMA
\n for such Product(s) and promptly refund to Mylex its payment for
\n such Product upon its receipt of such Product(s) from Mylex.<\/p>\n
9<\/p>\n
SECTION 7.0 TERM AND TERMINATION<\/p>\n
7.1 TERM AND TERMINATION. The initial term of this Agreement shall commence
\n on the effective date hereof and extend for five (5) years thereafter,
\n with automatic one year renewals unless terminated according to one or
\n more of the following provisions:<\/p>\n
A. At any time upon the mutual written agreement of both parties;<\/p>\n
B. At the end of the first one-year term hereof, or any subsequent
\n one-year term, by either party upon written notice of termination
\n to the other party received not less than sixty (60) days prior to
\n the expiration of any such term;<\/p>\n
C. By either party, following a material breach of this Agreement by
\n the other party and the breaching party’s failure to cure such
\n breach within thirty (30) days of it receiving written notice of
\n such breach; and<\/p>\n
D. By either party upon the other party seeking an order for relief
\n under the bankruptcy laws of the United States or similar laws of
\n any other jurisdiction, a composition with or assignment for the
\n benefit of creditors, or dissolution or liquidation.<\/p>\n
Notwithstanding any possible implication to the contrary herein or as a
\n result of the course of conduct or past relationship of the parties,
\n either party may terminate this Agreement pursuant to subparagraph B
\n above with or without cause and neither party presently has a right to
\n have this Agreement continue in effect for any period other than as
\n specified in subparagraph B above, subject to subparagraphs C and D
\n above.<\/p>\n
7.2 EFFECT OF TERMINATION. Upon any such termination by Dovatron or any such
\n termination by Mylex pursuant to subsection A or B above, Mylex shall be
\n liable for any cancellation according to Section 2.8 above. Furthermore,
\n in the event Mylex terminates this Agreement pursuant to subsection C
\n above as a result of a material breach by Dovatron of any of its
\n obligations hereunder with respect to Products subject to a Purchase
\n Order, Mylex shall be liable for any cancellation according to Section
\n 2.8 above other than with respect to such Purchase Order, any units of
\n any of the Products covered by such Purchase Order (whether or not
\n subject to such Purchase Order), and any work-in-process with respect to
\n any of such Products that meets acceptable quality standards. <\/p>\n
10<\/p>\n
SECTION 8.0 INDEMNIFICATION<\/p>\n
8.1 PRODUCT INDEMNIFICATION. Mylex agrees that it will indemnify Dovatron
\n against any and all claims, liabilities, damages or causes of action
\n (collectively, a “Claim”) hereafter brought or asserted by any person or
\n entity arising out of the design, installation or use of any units of
\n Product(s) manufactured by Dovatron under this Agreement, except to the
\n extent such Claim results from such units of Product(s) not meeting their
\n specifications or being defective in workmanship. Such indemnification
\n obligation is conditioned upon Dovatron promptly notifying Mylex of any
\n such claim. Such indemnification shall include reasonable attorneys’
\n fees and other costs incurred by Dovatron in the defense of any Claim;
\n provided, however, Mylex shall have the right to defend any Claim with
\n its own counsel, which is reasonably acceptable to Dovatron.<\/p>\n
8.2 PATENTS, COPYRIGHT, TRADE SECRET AND OTHER PROPRIETARY RIGHTS. Mylex
\n agrees to defend at its expense any suit brought against Dovatron based
\n upon a claim that finished Product(s) manufactured by Dovatron pursuant
\n to the terms and conditions of this Agreement infringes a patent,
\n copyright, trade secret or other proprietary right, foreign or domestic,
\n and to pay the amount of any settlement, or the costs and damages finally
\n awarded, with respect to such Claim, provided that Dovatron promptly
\n notifies Mylex of, and provides Mylex with reasonable assistance in the
\n defense of, any such Claim.<\/p>\n
8.3 EMPLOYEE AND CONTRACTOR INDEMNIFICATION. Each of the parties agrees that
\n it will indemnify the other party against any and all Claims hereafter
\n brought or asserted by any person against the other party (a) relating to
\n any alleged or actual action or omission to act by the indemnifying party
\n arising from, or in connection with, such person’s status as an employee
\n or independent contractor of the indemnifying person or the termination
\n of such status, (b) relating to any physical or other bodily injury
\n arising from, or in connection with, any alleged or actual act or
\n omission to act of the indemnifying party or any of its employees or
\n independent contractors, or (c) relating to any workers’ compensation
\n claim made by an employee or independent contractor of the indemnifying
\n party resulting from any injury sustained by such person while employed
\n or retained by the indemnifying party.<\/p>\n
SECTION 9.0 STAFFING, FACILITIES AND ASSETS<\/p>\n
9.1 STAFFING. Certain Mylex employees, listed on Exhibit D hereto, will be
\n offered the opportunity to resign from Mylex and, upon such resignation,
\n will be hired by Dovatron in connection with this Agreement. Dovatron
\n expressly does not assume any existing employment contracts or
\n obligations with Mylex personnel. Mylex warrants that it has, or will,
\n satisfy all obligations to Mylex personnel terminated in connection with
\n this Agreement, at or prior to such termination. Except as provided
\n above in this section, each of the parties agrees not to solicit any
\n employees of the other party that are directly involved in the activities
\n of the other party in connection with this Agreement during the period
\n such employees are employed by the other party and for a period of one
\n hundred and eighty (180) days after the date of such employee’s
\n termination of employment from the other party.<\/p>\n
9.2 FACILITY. Contemporaneous with the effectiveness of this Agreement, the
\n parties have entered into <\/p>\n
11<\/p>\n
a Sublease of a portion of the premises presently leased by Mylex in
\n Fremont, California, from Mylex to Dovatron (the “Sublease”), a copy
\n of each of which is attached hereto as Exhibit E.<\/p>\n
9.3 ASSETS. Dovatron may purchase from Mylex, on or before sixty (60) days
\n after the effective date of this Agreement, certain assets of Mylex (the
\n “Assets”) pursuant to the terms of a Sale Agreement between the parties,
\n in form and content acceptable to the parties (the “Sale Agreement”). A
\n list of the Assets is set forth on Exhibit F hereto. Prior to any such
\n sale, Dovatron, which shall have the right to use the Assets through such
\n date, shall be responsible for the loss of, or any damage to (reasonable
\n wear and tear excepted), the Assets. If such sale is not consummated by
\n such date, Mylex shall have the right to immediately recover the
\n possession of, and sell, the Assets. Upon the expiration or termination
\n of this Agreement, Mylex shall have the right, but not the obligation, to
\n purchase from Dovatron all of the Assets then being used by Dovatron in
\n the performance of its obligations under this Agreement. The repurchase
\n price for such Assets, and the repurchase terms and conditions, will be
\n specified in the Sale Agreement.<\/p>\n
SECTION 10.0 MISCELLANEOUS<\/p>\n
10.1 ENTIRE AGREEMENT. This Agreement shall constitute the entire agreement
\n between the parties with respect to the transactions contemplated hereby
\n and supersedes all prior agreements and understandings between the
\n parties relating to such transactions. The exhibits attached hereto are
\n considered to be a part of this Agreement; provided, however, to the
\n extent there is a conflict between any term of this Agreement and any
\n term on the face of a purchase order or any other document utilized by
\n Mylex to order Products hereunder, such term of this Agreement shall
\n govern.<\/p>\n
10.2 ASSIGNMENT. This Agreement shall be binding upon and inure to the
\n benefit of the parties and their respective successors and permitted
\n assigns. Neither party hereto shall in any way sell, transfer, assign,
\n or otherwise dispose of any of the rights, privileges, duties and
\n obligations granted or imposed upon it under this Agreement; provided,
\n however, that Dovatron shall have the right to assign its rights, duties
\n and responsibilities under this Agreement to an affiliate of Dovatron;
\n provided further, however, Dovatron shall remain obligated under this
\n Agreement and Mylex shall have the right to approve any change of the
\n manufacturing facility for any Product. An affiliate of Dovatron means
\n any corporation, partnership or other business entity which controls, is
\n controlled by, or is under common control with Dovatron.<\/p>\n
10.3 SEVERABILITY. In case any one or more of the provisions contained in
\n this Agreement shall for any reason be held to be invalid, illegal or
\n unenforceable in any respect, except in those instances where removal or
\n elimination of such invalid, illegal, or unenforceable provision or
\n provisions would result in a failure of consideration under this
\n Agreement, such invalidity, illegality or unenforceability shall not
\n affect any other provision hereof, and this Agreement shall be construed
\n as if such invalid, illegal or unenforceable provision had never been
\n contained herein.<\/p>\n
10.4 FORCE MAJEURE. Neither party shall be liable to the other for any delay
\n in performance or failure to perform, in whole or in part, due to labor
\n dispute, strike, war or act of war (whether an actual declaration is made
\n or not), insurrection, riot, civil commotion, act of public enemy,
\n accident, fire, <\/p>\n
12<\/p>\n
flood, or other act of God, act of any governmental authority,
\n judicial action or similar causes beyond the reasonable control of
\n such party. If any event of force majeure occurs, the party affected
\n by such event shall promptly notify the other party of such event and
\n take all reasonable actions to avoid the effect of such event.<\/p>\n
10.5 INDEPENDENT CONTRACTOR. Dovatron and Mylex are and shall be independent
\n contractors to one another, and nothing herein shall be deemed to cause
\n this Agreement to create an agency, partnership, or joint venture between
\n the parties.<\/p>\n
10.6 DISPUTES. All disputes and controversies of every kind and nature
\n between the parties arising out of or in connection with the
\n existence, construction, validity, interpretation, or meaning,
\n performance, non-performance, enforcement, operation, breach,
\n continuance, or termination of this Agreement shall be submitted to
\n binding arbitration, pursuant to the Rules of the American Arbitration
\n Association, before a single arbitrator in Alameda County, California.
\n In the event the parties cannot agree on the arbitrator, then an
\n administrator of the American Arbitration Association shall select an
\n appropriate arbitrator from among arbitrators of the Association with
\n experience in manufacturing disputes for technology products.<\/p>\n
10.7 JURISPRUDENCE. This Agreement will be governed by and construed in
\n accordance with the laws of California.<\/p>\n
10.8 EXHIBITS. Each exhibit hereto is incorporated herein by this reference.
\n The parties may amend any exhibit from time-to-time by entering into a
\n separate written agreement, referencing such exhibit and specifying the
\n amendment thereto, signed by an authorized employee of each of the
\n parties.<\/p>\n
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
\nthe date first above written.<\/p>\n
Dovatron International, Inc. Mylex Corporation<\/p>\n
By: \/s\/ Dermot O’Flanagan By: \/s\/ Colleen Gray
\n ——————————— ——————————
\n Dermott O’Flanagan Colleen Gray
\n ——————————— ——————————
\n Name (type or print) Name (type or print)<\/p>\n
President Dovatron Intl. Vice President Finance & CEO
\n ——————————— ——————————
\n Title Title<\/p>\n
Date: February 9, 1999 Date: February 5, 1999
\n ——————————— ——————————<\/p>\n
13<\/p>\n
Exhibit A
\n DOVATRON MANUFACTURING COLORADO
\n MYLEX QUOTE SUMMARY
\n 27-JAN-99
\n Exhibit A<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7323,8278],"corporate_contracts_industries":[9509,9507],"corporate_contracts_types":[9613,9620],"class_list":["post-42510","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-dii-group-inc","corporate_contracts_companies-mylex-corp","corporate_contracts_industries-technology__networking","corporate_contracts_industries-technology__equipment","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42510","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42510"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42510"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42510"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42510"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}