계약서(OEM AGREEMENT)

OEM AGREEMENT

 

THIS AGREEMENT, made and entered into this _______day of ________,  1997, by and between________________("BUYER"), a California corporation, and XXXX CORP.("ABC"), a corporation of the Republic of Korea

 

WITNESSETH:

 

Whereas BUYER has developed, manufactures and sells Disk Dirves;and

Whereas BUYER desires to enter into a manufacturing arrangement with a party capable of providing with high quality Disk Drives and

Whereas ABC wishes to acquire the technical expertise necessary to develop and manufacture Disk Drives and

Whereas ABC wishes to manufacture Disk Drives developed by BUYER and to sell such Disk Drives for its own account only in the Republic of korea ("korea") market and to BUYER for sale and distribution worldwide(excluding Korea).

Now, Therefore, the parties hereto do hereby agree as follows;

 

1. License to Manufacture

BUYER hereby licenses to ABC the right to manufacture the Buyer's products listed on Exhibit A hereto (hereinafter the "Products"), subject  to final assembly and testing by BUYER as set forth in Section 8 hereof, solely for the following purposes:

(a) For sale to BUYER pursuant to the terms hereof for resale by BUYER worldwide(excluding Korea), and

(b) For sale by ABC to  customers located in Korea solely for use by such customers in Korea and not for export by ABC or any third party to any other country.

The product list set forth on Exhibit A may be amended form time to time mutual agreement of BUYER and ABC.

 

2.Transfer of Technology.

(a) Technical Data.

Within______(_______) days form the data of this Agreement, BUYER will furnish ABC with the written technical data necessary  to commence production of the Products, including without limitation all designs, drawings, details, specifications, bills of materials, details, specifications, bills of materials, equipment and other information necessary for production.

(b) Training

i) Within _____(______) days form the data of this Agreement, ABC will send no more than two(2) of its personnel to BUYER's facilities in ____________, California for training by BUYER personnel in the production process.

ABC will pay all travel and lodging expenses for its personnel and, in addition, will reimburse BUYER  for any reasonable expenses incurred by BUYER in the training of such personnel.

Such ABC personnel will have the skills and education necessary to effectively participate in the training program.

The parties anticipate that the ABC personnel will be trained at the BUYER's facilities for a period of ______________(_______) weeks, but in no event longer than  ______(__________) weeks without the specific approval of BUYER.

ii) BUYER shall, upon request of ABC , as soon as possible, furnish, on location at the plant of ABC to train ABC personnel in  the methods of manufacture of the products, technically qualified personnel of BUYER upon one(1) month's notice by ABC for no more than an aggregate of man working days in any twelve

(ⅲ) month period.

ABC shall also provide a round trip air ticket from and to the point of origin for each such personnel.

In addition, ABC shall pay pursuant, to mutual agreement, local transportation and reasonable living expenses in Korea, including room and meal charges, incurred by such personnel.

 

3. Commencement of Manufacturing.

During the month of December 1996, ABC shall be capable of delivering to BUYER not less than fifty(50) units of the Product. During the month of January 1997, ABC shall be capable of delivering to BUYER not less than one thousand(1,000) units of the Product. During the month of February 1996 and hereafter, ABC shall be capable of delivering to BUYER not less than five thousand(5,000) units of the Product.

 

4. Ordering and Delivery.

Buyer shall provide to ABC a three (3) month rolling forecast of its Product requirements. BUYER shall be entitled to cancel any and all orders more than sixty(60) days prior to the scheduled delivery data for such Products,. However, in the event BUYER cancels its order for the Products manufactured or scheduled to deliver, ABC shall be entitled to sale of such Products to the customers in any other country notwithstanding Section 1(b) hereof.

 

5. Price

BUYER shall pay to ABC prices for the Products in accordance with the pricing schedule set forth on Exhibit C hereto.

ABC shall, unless otherwise agreed, not be entitled to raise such prices during the first two(2) year term of this Agreement. No later than sixty(60) days prior to the end of the initial two(2) year term of this agreement and each year there after, either party may  request in writing price changes with respect to the Products (either increase or decrease)  for the ensuing annual period. The parties shall negotiate with respect to  such requested price changes in good faith. In the event that the total costs of materials used by ABC and labor and other costs directly related to the manufacture and delivery of the Products hereunder shall in the aggregate have increased or decreased by at least _______ percent_________%) from the date hereof or of the last adjustment (whichever  is later), the prices for  the Products will be adjusted by the parties taking into account  such increase or decrease. In the event that the parties fail to reach agreement with respect to the Product or Product or Products as to which pricing is not resolved. If neither party requests a price change, then prices for the Products will remain unchanged for the ensuing year.

 

6. Payment.

BUYER shall pay for the Products to ABC by an irrevocable letter of credit payable at sight issued by bank in the United States covering the purchase price of the  Products set  forth on Exhibit  C hereto, in United States Dollars.

 

7. Minimum Quantity.

BUYER shall purchase any minimum quantity of the Products from ABC not less than the units specified in Section 3 hereof  pursuant to the respective periods.

In the event BUYER fails to meet such minimum purchase quantity, ABC shall be entitled to the sale of the Products to any other country notwithstanding Section 1(b) hereof.

8. Product Responsibilities

BUYER shall be responsible for final assembly and testing of the Products manufactured by ABC as set forth in Exhibit D hereto. BUYER shall perform an incoming inspection test  on each unit of the Products delivered by ABC hereunder within _____(_______) days of receipt  thereof, and shall be entitled to reject any unit which  fails to pass the incoming inspection test.

 

9. Warranty.

ABC warrants the Products delivered to BUYER to be  free from defects in materials and workmanship for a period of one (1) year from the date of delivery to BUYER In the event that defective Product is returned  to BUYER during the warranty period, BUYER will, at its option, repair or replace such Product for its customer. In the event that a Product is repaired by BUYER, BUYER shall receive a credit from ABC, depending on the work performed, as set forth on the Product repair pricing schedule attached hereto as Exhibit E. In the event that a Product is replaced by BUYER during the warranty period, BUYER shall return such Product to ABC for full credit.

THE ABOVE STATED WARRANTY BY ABC IS IN LIEU OF ALL OTHER

WARRANTIES,

EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF

FITNESS FOR A

PARTICULAR PURPOSE. ABC SHALL IN NO EVENT BE LIABLE FOR

CONSEQUENTIAL

DAMAGES, EVENT IF NOTIFIED IN ADVANCE OF THE POSSIBILITY

THEREOF. ABC'S

WARRANTY SHALL  NOT EXTEND  TO  PRODUCTS  WHICH  HAVE BEEN 

SUBJECT TO

MISHANDLING OR ABUSE.

 

10. Term and Termination.

This Agreement shall have an initial term of two(2) years from the date first set forth above and shall continue in force an a year-to-year basis thereafter unless notice of termination is  provided by either party no later than sixty(60) days prior to the end of the initial term or of any subsequent annual period.

(a) Either party may terminate this Agreement upon the material default of the other party provided, however, that the nondefaulting party shall give the defaulting party thirty (30) day's written notice of its election to terminate pursuant to this Section and the defaulting party shall be entitled to cure its default to the resonable satisfaction of the nondefaulting party within said thirty (30) day notice period.

(b) Should ABC fail to make timely delivery of the Products to BUYER in any two(2) consecutive months, BUYER shall be entitled to terminate this Agreement immediately and have no obligation to ABC whatsoever based upon such termination except to make payment of amount then owing.

(c) In the event that BUYER fails to make payment for  the Products within fifteen(15) days of the date when payment is due, ABC shall have the option of terminating this Agreement upon ten(10) day's written notice.

(d) except as provided in Section 4 and 7 hereof, in the event that ABC sells any Products for delivery outside of or for export from Korea (other than to BUYER), or sells the Products to any third party (including any Systems Integrator) which, ABC has reason to know, intends to export the Products from Korea, then this Agreement shall terminate immediately upon such sale by ABC.

(E) In the event of termination of this Agreement, BUYER shall take delivery of any pay all Products which it is committed to take pursuant to the terms of this Agreement, ABC shall return to BUYER  all technical data regarding the Products furnished by BUYER pursuant to Section 2(a) hereof within thirty(30) days of termination. provided, however, that ABC shall be entitled to sell to BUYER or in the Korea market the Products previously produced by it.

 

11. Confidentiality of Information.

ABC shall maintain in strict confidence all proprietary technical furnished to it by BUYER during the term of this Agreement. BUYER shall place the word "Confidential " or similar wording upon documentation it considers to be confidential. Oral disclosures by BUYER to ABC personnel shall be designated in writing by BUYER as confidential with in  thirty(30) days of  such disclosed to others without restriction, or which is made available to ABC by a third party which is not under obligation to maintain the confidentiality of such information.

 

12. Developments and License-Bank.

In the event that BUYER enhances or improves its manufacturing process with respect to a Product whose manufacture is licensed to ABC hereunder, BUYER shall promptly furnish the technical details of such enhancements or improvements to ABC without cost to ABC. ABC shall grant BUYER a worldwide(excluding Korea) exclusive royalty-free license with respect to all improvements or enhancements of the Products developed by ABC.

 

13. Patent indemnity.

BUYER agrees to indemnify and hold harmless ABC from and against all costs, claims, and liabilities based upon the alleged infringement by the Products on any United States patent, provided that BUYER should be notified promptly in writing of any claim or threatened claim. This indemnity shall not apply to any changes made to the Products by ABC and not approved in advance by BUYER, or to any use of the Products for which they are not intended. In the event that a patent infringement suit is threatened or commenced against ABC, BUYER shall procure for ABC the right to use the challenged technology or to change the design of the Products so that they are no longer infringing. The foregoing states the entire liability of BUYER with respect to patent infringement.

 

14. U.S Export Laws.

The parties hereto agree that their performance pursuant to this Agreement shall be subject to the laws of the United States of America regarding the export and reexport of U.S. origin commodities and technical data.

 

* BUYER가 미국국적이 아니거나, 당해 거래가 미국과 직접 관련이 없을 경우에는 삭제함.

 

 

 

15. Force Majeure.

Neither party to this Agreement shall be deemed to be in default under this Agreement to the extent that such party's performance is hindered or made impossible by an act of God, war, revolution or  insurrection, riot, strike or lockout, embargo, governmental intervention, or other event  beyond the control of the party affected. A party affected by a force majeure shall notify the other party of such event and its reasonably anticipated consequences as soon as possible after learning of it.

 

16. Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of (the State of California, United States of America.)

 

※ 한국법을 준거법으로 하는 경우 the Republic of Korea로 할 것.

 

17. Settlement of Disputes.

Disputes which cannot be amicably resolved by the parties shall be settled before the exclusive jurisdiction of the State or Federal courts located in the county of Santa, California, U.S.A. and  the parties hereto do hereby irrevocably consent to the jurisdiction of such courts. Decision rendered by such courts(or the appropriate courts of appeals) shall be vaild and enforceable in any court of competent jurisdiction worldwide.

 

※ 예문은 사법적 절차에 따라 분쟁을 해결토록 되어 있으나, 중재에 의하고자 할 경우는 다음과 같은 중재 조항을 규정하면 될 것임. 한·미간 중재협정에 의할 경우는 다음과 같이 표현할 수 있을 것이나, 한·미간 중재협정에 의할 경우, 중재지 선정의 문제는 당사자간의 중재지합의가 없을 경우는 극히 곤란함으로 중재장소를 미리 규정하여 두거나 혹은 다음과 같은 중재지 관련합의를 추가할 필요 있음. 「Such arbitration shall be held in Seoul, Korea if BUYER files such demand for arbitration, and ○○○○, U.S.A. if ABC files such demand for arbitration」

 

(All disputes, controversies or difference which may arise between  the parties, out of or in relation to or in connection with this Agreement, or for the breach thereof, shall be finally settled by arbitration pursuant to the U.S.-Korean Commercial Agreement dated December 1, 1974, by which each party hereto is bound.)

 

18. Assignment and Successors.

Neither party shall be entitled to assign or transfer this Agreement or its rights and obligations hereunder to any other party hereto, provided, however, that either party may assign its rights and  obligations pursuant to this Agreement to one or more of its subsidiary companies, provided that the parent company shall remain liable for performance hereunder.

This Agreement shall be binding upon and insure to the benefit of the successors in interest of the parties hereto.

 

19.Notices.

All notices under this Agreement shall be in writing and sent to the parties at the addresses set forth below, by registered air mail(return receipt requested) or by telex (answerback confirmed). Air mail notices shall be deemed received three (3) days after mailing if sent within the United States and seven(7) days after mailing if sent internationally.

Telex notices shall be deemed received upon transmission.

If to ABC:

If to BUYER:

 

※ 본 예문은 기본적으로 발신주의의 입장을 취하고 있으므로, 당사자들은 Notices 수령 및 관리에 신경을 써야 할 필요성 있음. 따라서, 문서관리 체계가 완벽치 못한 당사자는 도달주의(수신기준)로 바꿀 필요성 있음.

 

 

 

20. Entire Agreement.

This Agreement represents the entire understanding of the parties with respect to the subject matter thereof and supersedes all prior oral and written ｅxpressions relating hereto.

This Agreement may be amended only in writing signed by both parties. Failure of either party to enforce the terms of this Agreement shall not be deemed a waiver of the right to so enforce said terms.

 

21. Severability.

In the event that a court or courts holds a nonmaterial term of this agreement to be unlawful or void, this Agreement shall continue in full force and effect as modified to exclude the void or unlawful term(s) in the jurisdiction(s) where such exclusion is required.

 

Executed by duly authorized representatives of the parties set forth below to be effective on the date first set forth above.

 

BUYER:

___________________________________

BY_________________________________

Title______________________________

ABC:

__________________________________

By_________________________________

Title______________________________