MACHINERY AND EQUIPMENT PURCHASE AGREEMENT (the "Agreement") dated as of April 1, 2005, by and between KYOCERA CORPORATION, a corporation organized under the laws of Japan ("KC"), and AVX CORPORATION, a Delaware corporation ("AVX")
WHEREAS KC and AVX each design and manufacture equipment and machinery of a proprietary and confidential nature used in the manufacture of capacitors and other electrical components; and
WHEREAS KC and AVX are each desirous of purchasing, on the terms and conditions hereinafter described, certain machinery and equipment to be manufactured by the other party in accordance with designs, drawings, specifications, and proprietary information communicated for such purpose.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
The following terms shall have the following meanings for purposes of this Agreement unless otherwise clearly required by the context:
SECTION 1.01. Buyer. "Buyer" shall mean the party hereto that purchases machinery and equipment manufactured by the other party as contemplated in this Agreement.
SECTION 1.02. Product. "Product" shall mean the machinery and equipment used in the manufacture of capacitors and other electrical components purchased by the Buyer and manufactured and sold by the Seller as contemplated in this Agreement.
SECTION 1.03. Seller . "Seller" shall mean the party hereto that manufactures and sells machinery and equipment to be purchased by the other party as contemplated in this Agreement.
Purchases and Terms
SECTION 2.01. Purchase and Sale. The Seller will sell to the Buyer the Products ordered by the Buyer from time to time at prices and terms mutually agreed upon by the Buyer and Seller during the term of this Agreement.
SECTION 2.02. Purchase Orders. All purchases to be made pursuant to this Agreement will take the form of separate orders to be communicated in writing, from time to time, from Buyer to Seller. The Seller shall provide a written notice to the Buyer of each purchase order so accepted; such written notice will include a quotation of the total selling amount and shipment cost for the Product.
SECTION 2.03. Price, Delivery and Payment. The prices, dates and places of delivery, and terms of payment to be made pursuant to this Agreement are to be specified, and agreed upon between Buyer and Seller, in each and every such purchase order and such terms shall be equivalent to those terms which an independent unrelated party would agree to at arm's length. The Buyer shall provide the Seller with a written approval accepting such terms in order to authorize the Seller to commence the manufacture of the Product.
Manufacture of Products
SECTION 3.01. Technical Information. The Seller agrees to furnish to Buyer, after acceptance of each order, necessary designs, drawings, (if specifically requested by Buyer) specifications, engineering data, and other such information.
SECTION 3.02. Quality Control. Seller agrees that the Products which it manufactures hereunder shall be acceptable to Buyer as to designs, specifications, standards of quality, and performance. No significant deviation from designs, specifications, or standards of quality established or approved by Buyer, which have been communicated to Seller, shall be made without the written consent of Buyer. Seller agrees that it will establish and maintain appropriate test and inspection procedures to insure compliance by Seller with the covenants hereinbefore set forth.
SECTION 3.03. Right of Inspection. Seller agrees that Buyer shall have the right of sending inspectors to the plant or plants of Seller during the course of manufacturing, and Seller shall furnish to such inspectors the fullest opportunity for observing any and all work being carried on with respect to the Products, and of testing a reasonable number of such Products or any parts thereof.
All materials and information provided by either party to this Ag