EXHIBIT 10.1
*** Text Omitted and Filed Seperately
Confidential Treatment Requested
Under 17 C.F.R. 200.80(b)(4),
200.83 and 240.24b-2
AMENDMENT NO. S/M018-4 TO THE PURCHASE AGREEMENT
BETWEEN SBE INC. AND COMPAQ DATED MAY 6, 1991
AGREEMENT NO. S/M018-0 & PURCHASING AMENDMENT NO. S/M018-3
THIS AMENDMENT No. S/M018-4 to the Purchase Agreement No. S/M018-0 and
Purchasing Amendment No. S/M018-3 is entered into as of this 3rd day of April,
2001 (the "Effective Date"), by and between SBE, INC., a Delaware corporation
with its principal place of business at 4550 Norris Canyon Road, San Ramon, CA
94583-1369 ("Seller"), and COMPAQ COMPUTER CORPORATION, a Delaware corporation
with its principal place of business at 901 Page Avenue, Fremont, California,
94538 ("Customer").
RECITALS
A. Seller manufactures and distributes certain hardware components;
B. Customer wants to buy Seller's hardware components from Seller.
WHEREAS, Buyer and Seller have entered into the Corporate Purchase Agreement
effective as of May 6, 1991 ("Agreement") as amended by the Purchase Amendment
with an effective date of May 6, 1996.
NOW, THEREFORE, Seller and Customer agree as follows:
AGREEMENT
1. DEFINITIONS
1.1. "Confidential Information" means any confidential or proprietary
information of either party, including without limitation any designs,
schematics, plans or any other information relating to any research project,
work in process, future development, scientific, engineering, manufacturing,
marketing or business plan, or financial or personnel matter relating to such
party, its present or future products, sales, suppliers, customers, employees,
investors or business, and identified as propriety or confidential, whether in
oral form, or in written, graphic or electronic form."
1.2. "Intellectual Property Rights" means all current and future worldwide
patents and other patent rights (such as continuations, continuations-in-part
and reissues), utility models, copyrights, mask work rights, trade secrets and
all other intellectual property rights, including without limitation all
applications and registrations with respect thereto, including trademarks,
service marks, trademarks, trade names and other product, service and company
identifiers.
17
1.3. "Products" means the Seller-proprietary hardware products described on
Exhibit A attached hereto.
1.4. "Source Control Documents" (SCD) The SCD is a non-disclosure statement
specifying the information provided will not be freely disclosed to unauthorized
end users. The SCD also outlines the procedures and process required for
handling source code information. The SCD contains information considered
confidential; examples would be blue prints, operating software for controlled
products, software that allows the automatic generation of source codes,
software that performs proof/validation.
2. PURCHASE OF PRODUCTS.
2.1. Purchase Orders. Customer's purchase orders for Products shall contain the
quantity of each item to be purchased, the delivery destinations, the requested
delivery dates, any special shipping or delivery instructions, billing
instructions and any other special information required by this Agreement. All
purchase orders hereunder must be received by Seller prior to April 30, 2005 and
must specify a delivery date prior to July 31, 2005. All purchase orders shall
be issued at least sixty (60) days but no more than one hundred eighty (180)
days before the requested delivery date. Notwithstanding the preceding sentence,
by agreeing to pay a premium/expedite fee of [ *** ] of the original order price
(in addition to original order price) Customer may issue a purchase order less
than sixty (60) days before the requested delivery date. Seller will endeavor to
meet such requests by Customer for expedited delivery insofar as it is
practicable and consistent with Seller's production schedules to do so, but
Seller shall have the right to reject any request for expedited delivery. The
terms and conditions of this Agreement with respect to Product purchases shall
be incorporated into and made a part of each Customer purchase order. Seller
reserves the right to reject any purchase order that is not consistent with the
terms of this Agreement. The terms and conditions of this Agreement shall
supersede any terms set forth in any purchase order or other Customer document
delivered in connection with Customer's purchases under this Agreement, and any
terms and conditions appearing in any purchase order that are inconsistent with
or in addition to the terms and conditions of this Agreement shall be of no
force and effect and are hereby rejected. Performance under a purchase order
shall not constitute acceptance of terms that are inconsistent or in addition to
the terms and conditions of this Agreement.
2.2. Minimum Product Purchases. During the Term, Customer agrees to
Purchase and Seller agrees to supply up to 13,350 units of the Products at the
purchase price per unit set forth in Exhibit A. Such purchase shall consist of
up to [ *** ] VCOM-33 controller boards (Part No. U40567-A01) and up to [ *** ]
VCOM-34 controller boards (Part Nos. U32887-002 and U25022-A04). Customer agrees
to convert all orders for Products outstanding as of the Effective Date to
purchase orders under this Agreement no later than April 3, 2001. All such
orders not converted as of April 5, 2001 will be cancelled.
*** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
18
2.3. Minimum Order, Minimum Delivery. Seller shall not be obligated to
accept any order from Customer of fewer than [ *** ] units of each part number
listed on Exhibit A. Seller shall not be obligated to make any delivery of fewer
than [ *** ] units of each part number listed on Exhibit A.
2.4. Retention of Rights to Change Product Design. Either party reserves the
right to make changes and modifications in specification, construction, or
design of any Product or product component at any time and from time to time and
any component so modified shall be accepted by both parties in fulfillment of
existing orders. Either party will notify Customer in writing of any proposed
design changes to the Products, which affect form, fit, function, safety,
reliability or electrical or mechanical interfaces. Such notices will be
delivered at least ninety (90) days prior to such date change is expected to be
incorporated into the Product.
2.5. No Cancellation. Customer may not cancel purchase orders once accepted
by Seller, except for the ability to reschedule as referred to in Section 2.6
2.6. Reschedule. For no charge or fee, Customer may request rescheduled
delivery for Products subject to an outstanding purchase order; provided that
(i) the date of such request is at least 60 days in advance of the requested
rescheduled delivery date and (ii) the requested rescheduled delivery date is
less than 180 days from the original order date. By agreeing to pay a
premium/expedite fee of [ *** ] of the original order price (in addition to
original order price) Customer may request that delivery for Products subject to
an outstanding purchase order be rescheduled to a date less than [ *** ] days
from the date of such request. All requests for rescheduled delivery are
subject to acceptance by Seller. All rescheduled deliveries are subject to the
minimum order provision of Section 2.3.
3. SHIPPING TERMS.
3.1. ORDER FULFILLMENT. Upon receipt of a purchase order, Seller will
notify Customer of acceptance or rejection of such purchase order, and if
accepted, the proposed delivery date. Seller will endeavor to fill all Customer
orders for Products insofar as it is practicable and consistent with its
production schedules to do so, but in the event of its failure to fill all or
any material part of any accepted order within 10 days of committed delivery
Seller shall be liable or responsible as follows. For delivery later than 10
days but prior to 30 days from committed delivery date, Seller will reduce the
price of the Products by [ *** ]. For failure to deliver within [ *** ] days
from committed delivery date Customer may give notice of termination as per
Section 10.4. No Customer purchase order will become fixed and binding on
Seller unless and until accepted by Seller.
3.2. TITLE, RISK OF LOSS AND SHIPPING COSTS. Delivery of all Products shall
be made ex works "per Chamber of Commerce INCOTERMS, 1990 addition" Seller's
facilities. Customer must take delivery of all Products no later than 180 days
from the order date. Customer shall be responsible for paying all freight;
handling, shipping and insurance charges and such charges will be separately
listed in the applicable invoice and are not included in the list price for the
Products. Title, risk of loss or damage to the Products shall pass to Customer
upon shipment from Seller's facility.
*** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
19
3.3. CARRIER. Seller will select a carrier for delivery unless Customer has
designated a particular carrier acceptable to Seller. In no event shall Seller
have any liability in connection with shipment, nor shall the carrier be deemed
to be an agent of Seller. Seller shall not be liable for damage or penalty for
delay in delivery or for failure to give notice of any delay. Customer will be
deemed to have accepted all Products upon delivery.
4. PURCHASE PRICE AND PAYMENT.
4.1. PURCHASE PRICE. Customer shall pay to Seller the purchase price for the
Products as set forth on EXHIBIT A. Customer acknowledges that separate fees
may be charged under a separate services agreement for related services, and
that any such separate fees will be as stated in such agreement or an exhibit
thereto. [ *** ]
4.2. PAYMENT SCHEDULE. Customer shall pay all invoices issued under this
Agreement within [ *** ] from the date of invoice. Seller may at any time
decline to make any shipments or deliveries or perform any work except upon
receipt of payment or upon terms and conditions or security satisfactory to
Seller.
4.3. TAXES. All stated prices are exclusive of any taxes, fees, duties and
levies, however designated or imposed, and including without limitation, value
added and withholding taxes which are levied or based upon the amounts paid
hereunder (collectively, "Taxes"). Any Taxes related to Products purchased
pursuant to this Agreement shall be paid by Customer (excluding taxes based on
Seller's net income), unless Customer presents an exemption certificate
acceptable to Seller and the applicable taxing authorities. Applicable Taxes
shall be billed as a separate item on the invoice to the extent possible.
4.4. LATE CHARGES. Seller reserves the right to charge Customer a late
payment fee on any past due amounts at the rate of one and a half percent (1.5%)
per month or the maximum amount permitted by law, whichever is less.
4.5. DEPOSIT. On the Effective Date, Customer will pay to Seller a deposit
in the amount of four million eight hundred seventy thousand dollars
(US$4,870,000.00) (the "Deposit"). The Deposit will be refunded to Customer
according to the following schedule:
(a) Seller will refund to Customer [ *** ] when a total of [ *** ] units of
the Products have been shipped to Customer under this Agreement;
*** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
20
(b) Seller will refund to Customer [ *** ] when a total of [ *** ] units of
the Products have been shipped to Customer under this Agreement;
(c) Seller will refund to Customer [ *** ] when a total of [ *** ] units of
the Products have been shipped to Customer under this Agreement;
(d) Seller will refund to Customer [ *** ] when a total of [ *** ] units of
the Products have been shipped to Customer under this Agreement;
(e) Seller will refund to Customer [ *** ] when a total of [ *** ] units of
the Products have been shipped to Customer under this Agreement;
(f) Seller will refund to Customer the remaining [ *** ] of the Deposit when
a total of [ *** ] units of the Products have been shipped to Customer;
If Customer chooses to terminate the agreement pursuant to Section 10.2 or 10.3
prior to reaching any of the payback milestones listed in (a) through (f) above,
Seller will refund to Customer upon such termination [ *** ] per every unit of
the Products purchased by Customer since the previous payment milestone reached
by Customer. Upon such termination, Customer will forfeit any remainder of the
Deposit not refunded pursuant to the terms of this Section 4.5.
5. LIMITED WARRANTIES.
5.1. LIMITED WARRANTY. The Products supplied to Customer by Seller under
this Agreement are subject to the Seller's Product Limited Warranty attached as
EXHIBIT B hereto. The warranty period for each of the Products supplied
hereunder will begin on the date such Products are shipped to Customer and shall
terminate as specified in the Product Limited Warranty.
5.2. WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY IN THIS SECTION 5,
SELLER MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND HEREBY
EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES, INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR
NONINFRINGEMENT, WITH RESPECT TO THE PRODUCTS SUPPLIED TO CUSTOMER HEREUNDER.
Customer acknowledges that it has not relied on any representations or
warranties regarding the Products, other than those in this Section 5.
5.3. End-User Warranties. Customer shall indemnify, defend and hold
harmless Seller for and against any end-user warranty claim offered by Customer
that is outside the warranties of this Agreement, including, but not limited to,
valid consumer warranty claims arising outside the applicable warranty period.
*** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
21
5.4. Out of Warranty Repair Seller shall repair and or refurbish any Product
which is out of warranty and which is not beyond practical reparability for
thirty percent (30%) of the price stated in exhibit A. Seller warrants that any
Products repaired or refurbished by Seller will be in conformance with the
Product Specifications and free from defects in materials and workmanship for
ninety days (90) from the date of shipment.
6. INDEMNITY
Seller shall indemnify, defend and hold harmless Buyer and its
affiliates and their respective directors, officers, shareholders, employees and
agents (collectively, the "Buyer Indemnified Parties") from and against any and
all claims, demands, suits, actions, judgments, costs and liabilities (including
attorneys' fees) (each, an "Indemnified Loss") relating to or arising out of any
allegation that Products furnished under this Agreement infringe or violate any
patent, copyright, trade secret, trade name, trade dress, mask work, mask
rights, trademark or any other proprietary right and shall pay all costs and
damages awarded;provided, the foregoing indemnity shall not apply to the extent
any such claim is attributable solely to design specifications furnished by
Buyer to Seller. Buyer shall notify Seller of such claim and permit Seller to
defend and compromise such claim; provided, Buyer's failure to so notify Seller
shall not diminish Seller's indemnity obligations hereunder except to the extent
any Buyer's delay in notifying Seller materially prejudices Seller's defense of
such matter. If an injunction or exclusion order preventing the use of the
Products results from such a claim (or, if Buyer reasonably believes such an
injunction is likely) Seller shall, at its expense, and at Buyer's request, use
commercially reasonable efforts to obtain for Buyer the right to continue using
the Product. In the event that Seller cannot obtain such right for Buyer,
Seller shall be deemed to have breached its warranty set forth in the Warranty
Section above and thereupon Seller shall repurchase all such Products from
Buyer at the purchase price, and Buyer shall be entitled to such additional
remedies as may be available at law or in equity.
Seller shall indemnify, defend and hold harmless the Buyer Indemnified
Parties from and against any Indemnified Loss relating to or arising out of any
personal injury or death resulting from (i) the use of any Product or (ii)
Seller's acts or omissions; provided, the foregoing indemnity shall not apply to
the extent any such claim is attributable solely to design specifications
furnished by Buyer to Seller.
22
7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANYONE CLAIMING THROUGH OR
UNDER CUSTOMER, FOR ANY LOST PROFITS, LOST SAVINGS, PRODUCTS DOWNTIME OR LOST
DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY
KIND, INCLUDING, BUT NOT LIMITED TO, ARISING FROM OR RELATING TO THE PRODUCTS OR
THIS AGREEMENT, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY OF ITS ESSENTIAL
PURPOSE, THE TOTAL CUMULATIVE LIABILITY OF SELLER TO CUSTOMER FOR ANY CLAIMS OR
CAUSES OF ACTION ARISING FROM OR RELATING TO THE PRODUCTS OR THIS AGREEMENT,
WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT
EXCEED THE LESSER OF ONE THOUSAND DOLLARS ( $1,000) OR THE AGGREGATE AMOUNT PAID
TO SELLER DURING THE TWELVE (12) MONTHS PRECEEDING THE CLAIM. Customer
acknowledges and agrees that Seller's pricing and the other terms of this
Agreement are predicated on the limitations of Seller's liability set forth in
above and acknowledges that Seller would not enter into this Agreement without
such limitations.
8. CONFIDENTIALITY.
8.1. Confidentiality. During the Term and for five (5) years thereafter,
each party (the "Receiving Party") shall maintain in confidence all Confidential
Information disclosed to it by the other party (the "Disclosing Party")
hereunder. The Receiving Party shall not use, disclose or grant use of the
Disclosing Party's Confidential Information except as expressly authorized by
this Agreement. To the extent that disclosure is authorized by this Agreement,
the Receiving Party will obtain prior agreement from its employees, agents or
consultants to whom disclosure is to be made to hold in confidence and not make
use of such information for any purpose other than those permitted by this
Agreement. The Receiving Party will use at least the same standard of care as it
uses to protect its own most confidential information to ensure that such
employees, agents or consultants do not disclose or make any unauthorized use of
such Confidential Information. The Receiving Party will promptly notify the
Disclosing Party upon discovery of any unauthorized use or disclosure of the
Confidential Information.
9. INTELLECTUAL PROPERTY RIGHTS. Except for the right to possess and use the
Products contemplated by this Agreement, the delivery and sale of the Products
to Customer (a) does not convey to Customer or any third party any Intellectual
Property Rights in or related to the Products, and (b) does not grant to
Customer or any third party any license under any patents or patent applications
of Seller except for the right to possess and use the Product in accordance with
this Agreement. Customer shall not, and shall not permit any third party to,
disassemble or analyze the physical construction of any Products (or any
component thereof) for any purpose.
10. TERM AND TERMINATION.
10.1. TERM. This Agreement shall become effective as of the Effective Date
and, unless terminated earlier pursuant to this Section 10, shall terminate on
July 31, 2005 (the "Term").
10.2. TERMINATION BY CUSTOMER. Customer may terminate this Agreement for any
reason at any time by giving notice of termination to Seller. Upon termination
by Customer under this Section 10.2, (i) Customer will forfeit any unrefunded
portion of the Deposit according to the terms of Section 4.5; and (ii) all
purchase orders issued prior to termination for delivery within 150 days will
remain valid and in full effect.
23
10.3. TERMINATION BY EITHER PARTY. Either party may terminate this
Agreement on thirty (30) days notice if Customer has not taken delivery of any
units of the Products for a period six (6) months prior to such notice date. In
the event of any termination under this Section 10.3, all purchase orders issued
prior to such termination will remain valid and in full effect. In the event of
any termination under this Section 10.3, Customer will forfeit any unrefunded
portion of the Deposit according to the terms of Section 4.5.
10.4. Termination on Default. Either party may terminate this Agreement if
the other party fails to perform any material obligation under this Agreement
and such failure is not cured within thirty (30) days following written notice
of such failure to the defaulting party. Upon termination by either party under
this Section 10.4, all purchase orders issued under this Agreement shall
immediately terminate. In event of any termination under this Section 10.4 by
Customer for default by Seller, Seller shall immediately refund to Customer any
unrefunded portion of the Deposit paid by Customer under Section 4.5. Upon
Default by Seller, the parties hereby agree that Seller shall reimburse Customer
for any premium cost ("cover cost") reasonably incurred by Customer to remedy
Seller's Default. Reimbursement should not exceed 15% sale price per unit of
all undeliverable units remaining. Customer shall be entitled to such additional
remedies as may be available at law or in equity that are consistent with the
terms of this Agreement. In the event of any termination under this Section 10.4
by Seller for default by Customer, Customer will forfeit any unrefunded portion
of the Deposit according to the terms of Section 4.5. For default by Seller,
Buyer shall have the right to manufacture or have manufactured the products at
its discretion. To the extent that Buyer does not own the rights to the product
hardware and software, Seller hereby grants to Buyer all rights necessary for
Buyer to produce, manufacture and/or have manufactured quantities of such
product for distribution by Buyer. Seller shall provide Buyer access to and use
of all items that are necessary and/or useful in the manufacture of the
products, including but not limited to, Seller's drawings, software download
images, bills of materials processes, tools, and vendor list. Buyer reserves
the right, with advance notification, to facilities and resources until seller
is once again able to support the product adequately. Seller shall bear all
costs associated with the implementation of Buyer's management team, including,
but not limited to, travel, lodging, and salary for each team member. In
addition, Seller shall bear all costs associated with Buyer's support requested
by Seller.
10.5. EFFECTS OF TERMINATION. Upon termination or expiration of this
Agreement for any reason:
(a) All amounts due hereunder shall become immediately due and payable;
(b) Except for obligations arising under purchase orders that survive
termination of the Agreement, Seller shall have no further obligation to deliver
any Products to Customer.
24
(c) Each party shall return or destroy all Confidential Information and any
copies thereof, disclosed by the other party during the Term.
(d) Sections 4 (as to accrued but unpaid amounts), 5, 6, 7, 8, 10.5, 10, and
11 shall survive any expiration or termination of this Agreement for any reason.
All terms and conditions of this Agreement shall survive as to purchase orders
remaining in effect beyond the date of termination.
11. COMPLIANCE WITH LAWS; EXPORT RESTRICTIONS. Customer shall obtain all
licenses, permits and approvals required by any jurisdiction and shall comply
with all applicable laws, rules, policies and procedures of the applicable
government and any other regulatory agency that Seller notes are available for
export. Customer will indemnify and hold Seller harmless from and against any
liability, loss and expense (including without limitation attorneys' fees)
attributable to any violation or alleged violation by Customer of such laws,
rules, policies or procedures. Customer shall not transmit, export or
re-export, directly or indirectly, separately or as part of any system, the
Product or any technical data (including processes and services) received from
Seller, without first obtaining any license required by the applicable
government, including without limitation, the U.S. Government and/or any other
applicable competent authority. By accepting delivery, Customer agrees that
none of the Products or technical data supplied by Seller under this Agreement
will be sold or otherwise transferred to any US-embargoed destination, any
entity subject to a US denial order, or made available for use by or for, any
military end-user. Customer also certifies that none of the products or
technical data supplied by Seller under this Agreement will be sold or otherwise
transferred to, or made available for use by or for, any entity that is engaged
in the design, development, production or use of nuclear, biological or chemical
weapons or missile technology.
12. General Provisions.
12.1. ASSIGNMENT. Customer nor Seller may not assign this Agreement or any
right under this Agreement, nor delegate any obligation under this Agreement,
without Customer or Seller's prior written consent. Any attempted assignment or
delegation in contravention of this Section 11.1 shall be void.
12.2. NON-WAIVER; SEVERABILITY. Any delay or failure by either party to
exercise any right or remedy under this Agreement shall not constitute a waiver
of such right or remedy thereafter or of any other right or remedy. If any
provision of this Agreement is determined to be unenforceable, the remaining
provisions shall remain in full force and effect.
12.3. NOTICES. All notices and other communications provided for hereunder
shall be in writing and shall be mailed by first-class, registered or certified
mail, postage paid, or delivered personally, by overnight delivery service or by
facsimile, computer mail or other electronic means, with confirmation of
receipt, addressed as follows:
25
If to Seller: SBE, Inc.
4550 Norris Canyon Road
San Ramon, CA 94583-1389
Attn: CFO
Fax No. (925) 355-2033
If to Customer: Compaq Computer Corporation
901 Page Avenue
Fremont, CA 94538
Attn: CFO
Fax No: (510) 354-4538
Either party may by like notice specify or change an address to which notices
and communications shall thereafter be sent. Notices sent by facsimile,
computer mail or other electronic means shall be effective upon confirmation of
receipt, notices sent by mail or overnight delivery service shall be effective
upon receipt or upon refusal of delivery, and notices given personally shall be
effective when delivered or when delivery is refused.
12.4 Publicity. Seller and Customer agree that neither party shall originate
any press release nor other public announcement related to this Agreement,
written or oral, without the prior written consent of the other party, except as
required by law or a court order.
12.5 Force Majeure. Seller will not be liable for damages caused by failure
to ship, or delay in shipment, resulting from events beyond Seller's control,
such as governmental order or regulation, war, war-like situations, threat of
war, hostilities, impossibility of acquisition of components by Seller through
no fault of Seller, mobilization, blockage, embargo, revolution, riot, general
strike, fire, flood, earthquake, tsunami, tornado, etc. Once the above causes of
delay in performance are removed, Seller must make every reasonable effort to
allocate production capacity to meet the schedules established in all Customer
purchase order(s).
12.6 Governing Law and Venue. The laws of the State of California shall
govern this Agreement, as those laws are applied to contracts entered into and
to be performed entirely in California-by-California residents. Recipient shall
submit all claims it may desire to bring arising out of or related to this
Agreement or any breach hereof to a court of applicable jurisdiction in San
Francisco County, California, and Recipient hereby consents to the jurisdiction
and venue of such court if Seller brings a claim in such court.
12.7 Injunctive Relief. The parties agree that any unauthorized
duplication, distribution or disclosure of any of the other party's Confidential
Information will actually and materially damage the Disclosing Party and such
damages are difficult to calculate. Seller and Customer agree to comply with the
Source Control Documents as agreed to by the parties.
26
12.8 Entire Agreement; Modifications. This Agreement, together with the
exhibits attached hereto, supersedes all prior oral or written negotiations and
agreements between the parties with respect to the subject matter hereof. No
modification, variation or amendment of this Agreement shall be effective unless
made in writing and signed by the parties. Any additional or different terms
stated in any purchase order or other document delivered to Seller by Customer
in connection with this Agreement shall have no effect. Any Master Agreement
shall not supersede the terms and conditions of this Agreement.
In Witness Whereof, Seller and Customer have each caused this Agreement to be
executed by their duly authorized representatives as of the Effective Date.
SBE, INC. COMPAQ COMPUTER CORPORATION
("SELLER") ("CUSTOMER")
By: /s/ Timothy J. Repp By: /s/ Robert M. Murden
---------------------- -----------------------
Name: Timothy J. Repp Name: Robert M. Murden
------------------- ------------------
Title: Chief Financial Officer, Title: Fremont Site Director
Vice President BCSG Supply Chain Management
Compaq Computers
27
EXHIBIT A
PRICE LIST
ITEM PRICE PER UNIT (US DOLLARS)
- ---- -------------------------------
VCOM-33 Controller Board (U40567-A01) [ *** ]
VCOM-34 Controller Board (U32887-002) [ *** ]
VCOM-34 Controller Board (U25022-A04) [ *** ]
PRODUCT DESCRIPTIONS
VCOM-34
The VCOM-34 is a high performance, 68030-based, multiprotocol serial
communications controller for VME systems requiring a serial interface to links
transmitting at speeds up to E1 (2.048Mbps). Four full-duplex, independently
programmable serial channels support asynchronous, X.25-compatible HDLC, and
bisynchronous protocols. The Zilog Z16C30 Universal Serial Controller (USC)
coupled with a custom DMA Controller supports multiple lines at speeds up T1
(1.544Mbps) or E1. The 25MHz 68030 with built-in memory management unit, 1 or
4Mbytes of parity-protected DRAM, and up to 1 Mbyte of EPROM provide the ideal
communications controller for high-performance front-end processor applications.
The VCOM-34 is an excellent serial communications controller for minicomputers,
workstations, or data networking systems that require a powerful, high-speed
serial interface for high-speed data transmission.
VCOM-33
The VCOM-33 is a high-speed, 6U VMEbus interface to 4 or 16Mbps
(selectable) IEEE 802.5 Token Ring LANs. Featuring a 25MHz 68030
microprocessor, the Texas Instruments TMS380C16 Compressor and 1 or 4 Mbytes of
DRAM, the VCOM-33 supports the network and transport layers of communications
protocols such as TCP/IP. The Commprocessor executes MAC/LLC software (Type 1 &
2) to provide data link level functionality. An optional mezzanine board, the
VMM-34, can be added to provide four ports of high-speed, multiprotocol serial
I/O in one VME slot. Suitable for a wide range of applications, the VCOM-33 can
act as a high-performance Token Ring interface for mini or super minicomputers
or, with the optional source routing accelerator, as a controller in
internetworking products.
*** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
28
EXHIBIT B
PRODUCT LIMITED WARRANTY
SBE, Inc., is a California corporation doing business at 4550 Norris Canyon
Road, San Ramon, California U.S.A. 94583-1369, (800) 214-4SBE (herein referred
to as "SBE") and is the Warrantor of SBE's Product.
DEFINITION OF TERMS
Product - Any board level or system product that was manufactured or sold by
SBE to Customer.
Original Shipping Configuration - The configuration in which Product is
originally shipped from SBE.
LIMITED WARRANTY PERIOD
Product is warranted for a period of twelve (12) months from the date of
original shipment from SBE to Customer ("Limited Warranty Period"). When
Product is purchased from SBE for resale to Customer's customer, the Limited
Warranty shall be valid for the remainder of the original Limited Warranty
Period. However, SBE will repair the Product or, at its option, replace Product
with a product of like kind under this Limited Warranty for Customer only. Any
software product is covered by warranties specified in its individual license
agreement.
COVERED ITEMS
The Limited Warranty shall cover defects in workmanship or material and shall
conform to SBE's then-current Product Specification for the Limited Warranty
Period.
LIMITED WARRANTY CONDITIONS
This Limited Warranty is subject to the following conditions:
1. This Limited Warranty shall cover only Product that is sold by SBE to
Customer.
2. Product must be eligible for this Limited Warranty.
3. SBE shall deem Product ineligible for this Limited Warranty if it:
has been physically and/or electrically abused;
has been altered by cutting the board, changing components to devices other
than the device type originally supplied, changing the wiring, or any other
alterations that substantially changes the characteristics of Product such
that it cannot be tested with normal testing procedures used by SBE; or
has been damaged due to Electrostatic Discharge (ESD).
29
In the event Customer requires repair of Product and Product is ineligible
for warranty repair, SBE shall provide a repair quotation to Customer and await
written instructions from Customer to either authorize the repair or return
Product without repair.
4. Changing jumper configurations and adding normal Product options supplied
by SBE are considered normal usage, and are not a condition of ineligibility.
Any change made to Product by Customer, including implementing SBE-approved
Revision Change Notices (RCN), must be performed competently to avoid being a
condition of ineligibility.
5. To return a Product for repair under this Limited Warranty, Customer must
contact SBE and obtain a Return Material Authorization (RMA) number, and
instructions for returning the defective Product. The RMA number MUST be
contained in the shipping documents on the outside of the Product's packaging
when returned to SBE.
SBE shall, as Customer's sole and exclusive remedy and SBE's sole and
exclusive obligation for breach of this limited warranty and at SBE's option,
either repair Product or replace Product with a product of like kind at no
charge, and ship it back to Customer within thirty (30) days, subject to
availability of Product or repair parts. SBE will notify Customer if the
repairs will take longer than thirty (30) days. Any replaced or repaired
Product shall be warranted for ninety (90) days or for the duration of the
initial Limited Warranty Period, whichever is longer.
6. Product should be restored to its Original Shipping Configuration by
Customer for testing and repair. If Product is sent to SBE in a configuration
other than the Original Shipping Configuration, SBE will restore Product to the
Original Shipping Configuration to facilitate testing and repair. Any
components removed from Product to restore it to its Original Shipping
Configuration will be returned to Customer with Product, whenever possible. SBE
will not be liable for loss of such components. Product will be returned to
Customer in the Original Shipping Configuration after repair and testing.
7. Upon request from the Customer, any Customer approved RCN's shall be
added to repaired Product. Customer shall notify SBE upon receipt of an RMA
number.
8. For Product covered under this Limited Warranty, Customer shall pay
shipping charges to send Product to SBE for repair. After repair, SBE shall pay
shipping charges to return Product to Customer using the same method as used by
Customer. Unless mutually agreed by both parties, SBE shall not pay (a) excess
shipping charges if shipping method specified by Customer is different than
Customer used to send Product to SBE; or (b) any costs associated with
import/export fees.
9. SBE reserves the right to invoice Customer for all costs (including
transportation both ways, expenses associated with import/export, labor, and
parts) if Product returned for repair under this Limited Warranty was not
defective or otherwise not covered under this Limited Warranty.
30
10. SBE shall not be liable for damage sustained during shipment.
IN NO EVENT WILL SBE BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT
RESULT FROM THE USE OR FAILURE OF ANY SBE PRODUCT, EVEN IF SBE HAS BEEN INFORMED
OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, NO OTHER WARRANTIES OR
CONDITIONS (EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A
COURSE OF DEALING OR USAGE OF TRADE) ARE MADE OR GIVEN. IN PARTICULAR, SBE
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY,
MERCHANTABLE QUALITY, OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR
OTHERWISE.
31