Exhibit 10.2
CONFIDENTIAL PORTIONS OMITTED
(**) INDICATES THAT CONFIDENTIAL PORTIONS ARE OMITTED AND FILED SEPARATELY WITH
THE COMMISSION
Execution Copy
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AGREEMENT FOR MANUFACTURE
BETWEEN
DYNAMO POWER SYSTEM (USA) LLC
AND
CELESTICA HONG KONG LIMITED
AND
C&D TECHNOLOGIES, INC.
September 30, 2004
THIS AGREEMENT is made effective the 30th day of September, 2004 (the "Effective
Date")
BETWEEN
CELESTICA HONG KONG LIMITED, a company existing under Hong Kong law with an
office located at 4/F Goldlion Holdings Centre, 13-15 Yuen Shun Circuit, Siu Lek
Yuen, Shatin, Hong Kong ("Celestica"),
AND
DYNAMO POWER SYSTEM (USA) LLC, a Delaware limited liability Company with an
office located at 1400 Union Meeting Road, Blue Bell, Pennsylvania 19422 (the
"Customer"),
AND
C&D TECHNOLOGIES, INC., a Delaware corporation with an office located at 1400
Union Meeting Road Blue Bell, Pennsylvania 19422 ("C&D Parent")
WHEREAS
Customer has requested that Celestica manufacture Products and provide Services,
and Celestica has agreed to manufacture Products and provide Services for
Customer and the Ordering Companies, on the terms and subject to the conditions
of this Agreement;
NOW THEREFORE, in consideration of the respective covenants, agreements,
representations, warranties and indemnities herein contained, and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each party), the parties covenant and agree as follows:
1. DEFINITIONS AND SCHEDULES
1.1 The following words and expressions shall have the following meanings,
and grammatical variations of such terms shall have corresponding
meanings:
"Affiliate" means, with respect to a party hereto, a corporation or other entity
that directly or indirectly controls, is controlled by, or is under common
control with, that party, and for the purposes hereof, "control" means the
power, whether by contract or ownership of equity interests, to select a
majority of the board of directors or equivalent supervisory management
authority of an entity whether directly or indirectly through a chain of
entities that are "controlled" within the foregoing meaning.
"Approved Vendors List" means, with respect to any Product, Customer's approved
list of vendors from whom Celestica may exclusively purchase items of Material
included on such Product's Bill of Materials.
"Bill of Materials" means, in respect of a Product, the bill of materials for
such Product as may be revised from time to time.
"Business" means the business collectively carried on by the Celestica Entities
through their respective power operations prior to the completion of the
Transactions and collectively carried on by the C&D Entities or their successors
after the completion of the Transactions, consisting in each case of the
engineering, development, design, promotion, marketing, distribution and sale of
Power Products to original equipment manufacturers and other customers,
including, without limitation, the "build-to-print" business, consisting of the
facilitation and management, on behalf of customers of the Celestica Entities or
the C&D Entities, as applicable, of the manufacture (including applicable
testing) by third party contract manufacturers, of such customers' Power
Products in accordance with such customers' specifications and without any
design contribution from the Celestica Entities or the C&D Entities, as
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applicable, or any of them, but for certainty excluding the manufacture or
repair of Power Products under such "build-to-print" arrangement.
"CAP" has the meaning set forth in Section 17.4.
"C&D Entities" means Dynamo Power Systems (Canada) ULC, Dynamo Power System
(USA) LLC, Dynamo Acquisition Corp. and Datel Electronic Technology (Shanghai)
Co. Ltd.
"Celestica Entities" means, collectively, Celestica International Inc.,
Celestica Corporation, Celestica Electronics (Shanghai) Co. Ltd. and Celestica
(Thailand) Limited.
"Celestica Intellectual Property" means all Intellectual Property existing on
the date hereof and owned or licensed by Celestica and/or an Affiliate of
Celestica, unless otherwise expressly provided herein, includes all Intellectual
Property subsequently conceived, first reduced to practice, made or developed by
Celestica.
"Claim" means any claim, suit, action, demand or proceeding.
"Competing Bid" has the meaning set forth in Section 2.7.
"Consigned Material" means any Material that is required for the manufacture of
a Product, as listed in the applicable Bill of Materials for such Product, that
is owned by Customer or an Ordering Company but which has been placed in the
care, physical custody or control of Celestica or any of its Affiliates to be
used in the manufacture of Products.
"Coverage Period" has the meaning set forth in Section 3.1.
"Customer Credit Limit" has the meaning set forth in Section 11.1.
"Customer Equipment" means any tools, test equipment, fixtures and any other
production equipment that are owned by Customer or an Ordering Company but which
have been placed in the care, physical custody or control of Celestica and or
any of its Affiliates and are used in the manufacture or testing of Products at
a Facility.
"Customer Information" means all Specifications for Products and all proprietary
drawings, documentation, data, software, know-how and other proprietary written
information, and any tooling provided by Customer to Celestica under this
Agreement, but excludes all Celestica Intellectual Property.
"Customer Intellectual Property" means all Intellectual Property existing on the
date hereof and owned or licensed by Customer and, unless otherwise expressly
provided herein, includes all Intellectual Property subsequently conceived,
first reduced to practice, made or developed by Customer.
"day" means a calendar day.
"Defaulting Party" has the meaning set forth in Section 24.3.
"Delivery Date" has the meaning set forth in Section 3.2.
"Dispute" has the meaning set forth in Section 25.1.
"ECN" has the meaning set forth in Section 15.1.
"Epidemic Condition" has the meaning set forth in Section 17.5.
"Excess Material" has the meaning set forth in Section 16.1.
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"Excess Material Invoice" has the meaning set forth in Section 16.2.
"Exchange Rate" has the meaning set forth in Section 9.4.
"Facility" has the meaning set forth in Section 2.5.
"Financial Liability" has the meaning set forth in Section 11.4.
"Forecast" has the meaning set forth in Section 3.1(b).
"Indemnified Party" has the meaning set forth in Section 23.1.
"Indemnifying Party" has the meaning set forth in Section 23.1.
"Initial Term" has the meaning set forth in Section 24.1(a).
"Intellectual Property" means all tangible or intangible industrial and
intellectual property, including all:
(a) trade secrets, confidential and proprietary information and
confidential know-how, including all unpatented inventions,
customer and supplier lists, formulae, processes, technology,
inventor's notes, unpublished studies and data, research designs,
research results and notes, prototypes, drawings, design and
construction specifications, production, operating and quality
control manuals;
(b) copyrights, including all copyrights in software and databases;
(c) industrial designs, design patents and other designs;
(d) integrated circuit topography rights and mask works;
(e) patents; and
(f) trade-marks, including both registered and unregistered
trade-marks and service marks, designs, logos, indicia,
distinguishing guises, trade names, business names, internet
protocol addresses, internet domain names, any other source or
business identifiers and fictitious characters, and all goodwill
associated with the foregoing;
and all registrations, applications for registration, reissues, extensions,
renewals, divisions, continuations, continuations-in-part, proprietary
information, documentation, licenses, registered user agreements and other
agreements relating to the foregoing.
"Lifetime Buy Materials" has the meaning set forth in Section 4.6.
"Long Lead Time Materials" has the meaning set forth in Section 4.1.
"Losses" means any losses, damages or expenses (including reasonable attorney's
fees and other reasonable costs of legal defense).
"Mark-Up" has the meaning set forth in Section 9.3.
"Material" means any component, part or other material comprising, comprised in
or used in the manufacture of a Product, and any packaging or labeling material
used in the packaging or shipment of a Product.
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"Material Lead Time" means, with respect to any item of Material at any time
during the Term, the minimum number of days then currently being quoted by the
approved Material vendor on the Approved Vendors List selected by Celestica to
deliver such item of Material to Celestica.
"Minimum Mark-Up has the meaning set forth in Section 9.3.
"month" means a calendar month.
"MOQ Requirements" has the meaning set forth in Section 4.1.
"NRE" means a non-recurring expenditure relating to tooling, fixtures or other
items agreed upon by the parties, and includes all associated engineering or
direct charge labour charges.
"Obsolete Material" has the meaning set forth in Section 16.5.
"Obsolete Material Invoice" has the meaning set forth in Section 16.5.
"On-Time" has the meaning set forth in Section 5.4.
"Order" means a purchase order for Products and/or Services delivered by
Customer to Celestica (or by or to their respective Affiliates pursuant to
Section 2.3) in accordance with the terms and subject to the conditions of this
Agreement.
"Ordering Company" means an Affiliate of Customer designated as an Ordering
Company pursuant to Section 2.8 and which has complied with the provisions of
Section 2.8.
"Performance Metrics" means the performance standards set out in Schedule C.
"Power Products" means power supply, regulation and conversion products,
excluding products (or components of products) whose principal function or use
is not power supply, regulation or conversion but which contain or incorporate
power circuitry, or power supply, regulation or conversion components, including
without limitation, printers and communications circuit boards and servers.
"Price" means the price for a unit of a Product or Service, as set out in
Schedule B, as such price may be revised from time to time in accordance with
Article 9.
"Products" means the products listed in Schedule A, together with all follow-on
and replacement Power Products that are designed primarily by the Business after
the date hereof, or that would have been designed primarily by the Business
after the date hereof but for the completion of the Transactions on the date
hereof.
"Purchased Material" means the Material sold by the Celestica Entities (or any
one of them) to the C&D Entities (or any one of them) in connection with the
completion of the Transactions.
"Quarter" means a three (3) consecutive month period commencing on January 1,
April 1, July 1 or October 1.
"RFQ" has the meaning set forth in Section 2.7.
"Rejected Products" has the meaning set forth in Section 6.1.
"Renewal Term" has the meaning set forth in Section 24.1(b).
"RMA" means a return materials authorization.
"Services" has the meaning set forth in Section 2.2.
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"Specifications" means all applicable technical and process specifications for
the manufacture, testing or repair of a Product provided by Customer or any of
its Affiliates to Supplier or any of its Affiliates, including all drawings,
models, specifications, documentation, data, product information, engineering
standards, technical and test instructions, procedures or requirements,
functional information and related data, data files, quality standards, bills of
material, approved vendor lists, software, design information, technical
manuals, packaging requirements, testing requirements and know-how, as amended
and in effect from time to time.
"Term" has the meaning set forth in Section 24.1(b).
"Terminating Party" has the meaning set forth in Section 24.2.
"Transactions" means, collectively, the asset purchase and contribution
transactions contemplated by the asset purchase agreement dated the date hereof
between Celestica International Inc. and Dynamo Power Systems (Canada) ULC, the
contribution agreement dated the date hereof between Celestica Corporation and
Dynamo Power System (USA) LLC, the asset purchase agreement dated September 23,
2004 between Celestica Electronics (Shanghai) Co. Ltd., Datel Electronic
Technology (Shanghai) Co., Ltd., Celestica Inc. and C&D Parent, the asset
purchase agreement dated September 23, 2004 between Celestica International
Inc., Celestica Corporation, Celestica (Thailand) Limited, Dynamo Acquisition
Corp., Celestica Inc. and C&D Parent, the LLC interest purchase agreement dated
September 23, 2004 between C&D Parent, Celestica Corporation and Celestica Inc.,
and the share purchase agreement dated September 23, 2004 between C&D Parent,
C&D Power Systems (Canada) ULC, Celestica International Inc. and Celestica Inc.
"Transaction Taxes" means all federal, provincial, state, local and foreign
sales taxes and other similar taxes, duties, fees or other like charges (but,
for greater certainty, not including any taxes on income or profits).
"Warranty Period" has the meaning set forth in Section 17.1.
1.2 The following Schedules are attached to and form part of this Agreement:
Schedule A - Product List; and DPPM Thresholds
Schedule B - Service Fees
Schedule C - Performance Metrics
Schedule D - Ordering Company Acknowledgement
Schedule E - Warehousing Terms
Schedule F - Initial Prices
2. SCOPE OF AGREEMENT
2.1 This Agreement shall apply to all Orders issued by Customer or any
Ordering Company and accepted by Celestica under this Agreement.
2.2 From time to time, Customer may wish to purchase services from Celestica,
which may include, but shall not be limited to: development, design,
engineering, out-of-warranty repair, prototyping, distribution or other
services as Celestica may agree to provide from time to time and which
may be described in more detail in various statements of work or Orders
(collectively, the "Services"). Unless otherwise agreed to in writing
between the parties, Celestica shall perform all Services in accordance
with the terms and subject to the conditions of this Agreement and for
the fee set out in Schedule B for the applicable Service, or if no fee
for such Service is set out in Schedule B, at a mutually agreed upon
price.
2.3 From time to time, Customer may wish to directly engage an Affiliate of
Celestica to manufacture Products or perform certain Services. In such
event Customer shall issue an Order directly to Celestica's Affiliate.
Each Order placed by Customer with an Affiliate of Celestica shall
incorporate by reference the terms and conditions of this Agreement and,
with respect to that Order, this Agreement shall be interpreted as if it
had been entered into directly by the relevant Affiliate of Celestica and
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Customer, and for the purposes thereof the term "Celestica" shall be
deemed to refer to such Affiliate of Celestica.
2.4 Celestica shall manufacture and deliver Products and supply Services
pursuant to the terms of this Agreement, subject to Customer first having
provided Celestica with the Specifications for the Products, together
with any additional Customer Information and Customer Equipment, if any,
necessary for the manufacture of Products and the provision of Services.
Except as provided in Section 2.6, nothing herein is intended nor shall
be construed as requiring or imposing any obligation on Customer or its
Affiliates to purchase any quantity of the Products from Celestica.
2.5 Celestica shall manufacture the Products and provide the Services at
either its or its Affiliates' manufacturing facilities located in Suzhou,
Peoples' Republic of China, or Laem Chabang, Thailand, and/or at any
other facility owned or operated by Celestica or any of its Affiliates as
Celestica and Customer may from time to time agree (each, a "Facility").
Celestica may not transfer the manufacturing location of any of the
Products from one Facility to another without the prior written consent
of Customer, which consent shall not be unreasonably withheld,
conditioned or delayed, provided that Customer hereby consents to the
transfer of the manufacture of the Products listed in Schedule A by
Celestica from its facility located in Laem Chabang, Thailand to its
facility located in Suzhou, Peoples' Republic of China, subject only to
qualification of such latter facility by Customer's customers.
2.6 During the Term of this Agreement, Customer shall purchase, and shall
cause its Affiliates to purchase, 100% of its and their world-wide
requirements for Products from Celestica. If the parties are in
disagreement as to whether any product is a Product and is therefore
required to be manufactured by Celestica hereunder, such disagreement
shall be referred to and resolved using the dispute resolution procedure
set out in Section 25.1.
2.7 In the event that Customer or any of its Affiliates issues a request for
proposals or other request for bids (each, an "RFQ") from one or more
third party manufacturers in respect of the manufacture of any Power
Product or group of Power Products (other than a Product) which it sells
or distributes in the course of conduct of its business, Customer shall
provide (or shall cause such Affiliates to provide) Celestica with the
opportunity to respond to such RFQ, and shall treat Celestica at least as
favourably as every other third party manufacturer that responds or is
invited to respond to such RFQ, including, without limitation, with
respect to time delays for responding and access to and provision of
information and personnel of the Corporation or such Affiliate. If
Celestica: (a) has the requisite capabilities to manufacture the Power
Product or group of Power Products subject to the RFQ in accordance with
Customer's (or such Affiliate's) requirements, and (b) submits a bid in
response to such RFQ that is, in the aggregate, competitive with a bona
fide response to such RFQ submitted by a third party manufacturer for
comparable levels of quality, service and performance (a "Competing
Bid"), Customer shall award (or shall cause such Affiliate to award) the
manufacture of such Power Product or group of Power Products to Celestica
on the terms and conditions of this Agreement and any other terms
(including with respect to pricing) as the parties may agree. If
Celestica's response to an RFQ is not competitive with the Competing Bid,
Customer (or such Affiliate) may award the manufacturing services to
which such RFQ relates to the third party manufacturer which submitted
the Competing Bid, but such award shall be on terms no less favourable to
Customer (or such Affiliate) than the terms set out in the Competing Bid.
2.8 (a) Customer may designate in writing from time to time any of its
Affiliates as an "Ordering Company" under this Agreement. Each Ordering
Company shall be eligible to order Products and Services on the terms and
conditions set forth in this Agreement; provided that (i) such Ordering
Company shall have executed and delivered to Celestica an acknowledgement
in the form of Schedule D, (ii) such Ordering Company shall have executed
and delivered to Celestica such further agreements, documents or
instruments as Celestica may reasonably request, and (iii) Celestica and
such Ordering Company shall have entered into such additional agreements,
instruments and other writings as are required under any applicable law.
Any reference to Customer in this Agreement shall, where applicable, be
deemed also to refer to any Ordering Company in respect of which the
conditions in this Section have been fulfilled.
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(b) If Customer designates an Ordering Company in accordance with
Section 2.7(a) above, Customer shall ensure that such Ordering Company
performs and discharges all payment and other financial obligations under
this Agreement, including those obligations which, either directly or
indirectly, could have a financial impact on Celestica and/or its
Affiliates and which arise, directly or indirectly, from non-performance
or failure to discharge such obligations of such Ordering Company under
this Agreement. Notwithstanding the foregoing, Customer shall at all
times be and remain fully liable for the performance of any and all
obligations of each Ordering Company under this Agreement.
2.9 From time to time during the Term of this Agreement and upon request of
Customer, Celestica may store Products that have been purchased and paid
for by Customer or an Ordering Company pursuant to this Agreement, on and
subject to terms and conditions to be agreed to by the parties.
3. FORECAST AND ORDER PROCEDURE
3.1 At least five (5) days prior to the first day of each month Customer
shall provide to Celestica a forecast (the "Forecast") of its weekly
Product requirements for the next consecutive twelve (12) months (each
such twelve (12) month period being herein referred to as the "Coverage
Period"). On a weekly basis during the Term, Customer shall provide
Celestica with Orders for the first sixty (60) days in the Coverage
Period. Customer shall use its reasonable commercial efforts to ensure
that the Forecast is accurate but the Forecast shall not constitute an
Order.
3.2 Celestica shall acknowledge receipt of Orders (other than orders for
pre-production or pilot products) within twenty-four (24) hours of
receipt thereof. Celestica shall acknowledge receipt of Orders for
pre-production and pilot products as soon as practicable after receipt
thereof. As soon as reasonably practicable, but in any event within five
(5) business days of receipt of an Order, Celestica shall notify Customer
of its acceptance or non-acceptance thereof. Notwithstanding anything to
the contrary herein, Celestica shall not be bound by any Order unless and
until Celestica has accepted such Order. Concurrently with its
notification to Customer of acceptance or non-acceptance of an Order,
Celestica shall confirm the delivery date(s) specified therein or propose
a revised delivery date (or dates) to Customer. If Customer does not
notify Celestica that it objects to the revised delivery date proposed by
Celestica within five (5) business days of Customer's receipt of such
proposal, Customer shall be deemed to have agreed thereto. The date for
delivery of a Product subject to an Order as accepted by Celestica or as
agreed to (or as deemed to have been agreed to) by Customer as provided
in this Section 3.2 is herein referred to as the "Delivery Date".
Notwithstanding anything to the contrary in this Agreement, Celestica
shall be under no obligation to accept an Order if Customer is in breach
of its obligations under this Agreement, if the Order is for a quantity
of Products that exceeds the amount of such Products specified in the
then current Forecast, as such quantity may be increased pursuant to
Section 7.2, or that is not otherwise in compliance with the provisions
of this Agreement.
3.3 Each Order shall incorporate by reference the terms and conditions of
this Agreement. Any pre-printed terms and conditions found on Customer's
Orders or on Celestica's acknowledgements, invoices or other related
documentation shall be of no force or legal effect. Orders shall indicate
the required Product and/or Service to be delivered or provided by
Celestica and shall include: the description and Price per unit of
Product or Service, the quantities ordered, requested delivery date,
Product revision details, and such other information as the parties may
from time to time agree is required. Orders may be issued in writing, by
mail or facsimile, or by electronic means as agreed from time to time to
by the parties in writing.
3.4 Celestica shall, at all times during the Term, comply with and meet the
Performance Metrics set out in Schedule C in the performance of its
obligations under this Agreement. Notwithstanding anything to the
contrary herein, Celestica shall not be deemed to be in breach of its
obligations under this Agreement or to have failed to meet a Performance
Metric where its failure to comply with such Performance Metric is due to
any factor or reason beyond Celestica's control and not also due to its
own negligence, including without limitation: failure by Customer to
supply, or the inadequacy of, any necessary Customer Equipment; acts or
omissions of third party suppliers not attributable to Celestica;
Customer's failure to perform its obligations under this Agreement or to
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provide any necessary consent or instructions to Celestica; and any event
described in Section 25.10, provided, however, Celestica shall, upon
request of Customer, promptly document any factor or event which it
believes was beyond Celestica's control or which was due to some fault or
failing of Customer.
3.5 Upon receipt of written notice from Customer that Celestica has failed to
meet any Performance Metric, Celestica shall promptly initiate, at its
sole cost, such remedial action as necessary in order to meet the
relevant Performance Metric, and Celestica and Customer shall cooperate
in good faith in identifying and resolving the factors contributing to
such failure.
4. MATERIALS
4.1 Customer hereby authorizes Celestica, and Celestica shall, from time to
time be entitled to order Materials (for which Customer shall be
responsible in accordance with Article 16) in accordance with Material
Lead Times and as necessary to support Celestica's production and
delivery requirements for Customer's (and the Ordering Companies')
Product requirements for the following sixty (60) days, based on
Customer's (and the Ordering Companies') Forecasts. Notwithstanding the
foregoing, Celestica shall at all times be further authorized to order
(i) Materials with Material Lead Times in excess of sixty (60) days
("Long Lead Time Materials"), and (ii) such additional Materials as
Celestica reasonably determines are required based on supplier minimum
order requirements, packaging sizes or economic order quantities ("MOQ
Requirements") to support Customer's (and the Ordering Companies')
Product requirements, based on Customer's (and the Ordering Companies')
Forecasts. No less frequently than every Quarter during the Term of this
Agreement, Celestica shall submit to Customer a list of Long Lead Time
Materials and MOQ Requirements, for Customer's approval. Any failure by
Celestica to meet or comply with the provisions of this Agreement
(including the Performance Metrics) as a result of a failure by Customer
to approve any Long Lead Time Materials or MOQ Requirements shall not be
deemed to be a breach by Celestica of this Agreement or to otherwise
affect any measure of Celestica's performance of its obligations
hereunder.
4.2 Celestica is hereby authorized to procure Materials solely from vendors
listed on the Approved Vendors List. To procure Materials from other
vendors, Celestica must obtain Customer's prior written consent, which
consent shall be provided within fourteen (14) days and, in any event,
shall not be unreasonably withheld, conditioned or delayed.
4.3 In the event that Customer requests that Celestica take possession of and
store Material that is owned by Customer or an Affiliate for use in the
manufacture of Products, Celestica shall store such Material in
accordance with the terms of Schedule E.
4.4 From time to time Customer may request that Celestica purchase Material
from Customer's suppliers pursuant to specific terms and conditions
negotiated by Customer with such suppliers.
4.5 When requested by Customer in writing and upon receipt of an Order
therefor, subject to availability of the required Materials, Celestica
shall purchase, on Customer's behalf, a quantity of Materials that
exceeds the quantity of such Materials that Celestica would otherwise be
authorized to order pursuant to Section 4.1, if the manufacturer of such
Materials intends to discontinue or modify such Materials in a manner
that affects the form, fit or function of the Product(s) in which such
Materials are used, and such Materials do not have a readily available
replacement or substitute identified prior to the time at which such
Material is discontinued or so modified (such Materials being herein
referred to as "Lifetime Buy Materials"). Upon receipt of Lifetime Buy
Materials, Celestica shall invoice Customer for such Materials, and will
either store such Material on behalf of Customer pursuant to Schedule E,
or deliver such Material to Customer, as Customer may elect. Payment for
such Materials shall be due by Customer without offset or deduction for
any matter whatsoever, within fourteen (14) days from the date of
Celestica's invoice to Customer for such Lifetime Buy Materials.
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4.6 Where Customer directs Celestica to buy Materials pursuant to contracts
that are entered into between Customer and the suppliers of the relevant
Materials, Customer shall be responsible for directing its suppliers to
comply with such contracts. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions
negotiated by Customer with suppliers of Materials, Celestica shall be
relieved of any liability to Customer with respect to any Materials
Celestica purchases from such suppliers on terms and conditions
negotiated by Customer, to the extent of such inconsistency. Any failure
by Celestica to meet or comply with the provisions of this Agreement
(including the Performance Metrics) as a result of the failure by
Customer or a supplier of Customer to comply with any contract between
Customer and such supplier shall not be deemed to be a breach by
Celestica of this Agreement or to otherwise affect any measure of
Celestica's performance of its obligations hereunder. If at any time
during a Quarter Celestica is required to obtain Material from a supplier
of Customer under this Section 4.7, at a price which is higher than the
price for such Material reflected in the applicable Bill of Materials,
Customer agrees that the Price for each Product into which such Material
is incorporated shall be increased by an amount equal to such difference
in the Material price until such Material has been fully consumed by
Orders.
4.7 Upon request from Customer and if Material is required by Celestica for
the manufacture of Products, Celestica shall purchase from Customer any
Material that Customer may have on hand (including, without limitation,
Purchased Material), at prices equal to those set out in the then current
Bills of Materials.
5. DELIVERY AND RISK
5.1 Except as agreed otherwise, all Products shall be delivered by Celestica
EXWORKS (INCOTERMS 2000) the Facility of manufacture in accordance with
the delivery terms set forth in Section 5.4.
5.2 No later than two (2) weeks prior to the delivery date of a Product
specified in the Order for such Product, Customer shall provide Celestica
with all necessary shipping instructions for the Product subject to such
Order.
5.3 If Customer fails to provide Celestica with the necessary shipping
instructions as required in Section 5.2 or to deliver carrier or
transportation instructions to Celestica, Celestica shall invoice
Customer for such Products and store such Products in accordance with the
terms of Schedule E.
5.4 Celestica shall deliver all Products included in each Order accepted by
Celestica hereunder in accordance with Section 5.1 on, or no more than
three (3) days before, the applicable Delivery Date for such Order (the
delivery of a Product within such time frame being herein referred to as
"On-Time"). If Celestica becomes aware that a Product will not be
delivered On-Time, Celestica shall promptly notify Customer in writing
and set forth in such notice the cause of such delay and the date on
which it anticipates that such Product will be delivered to Customer.
Upon the written request of Customer after receipt of such notice,
Celestica shall ship the applicable Product to the specified delivery
destination using an expedited method of shipment. Any and all
incremental shipping costs incurred in connection with such alternative
shipment method shall be paid by Celestica where such delay is due solely
to causes within Celestica's control, and otherwise shall be borne by
Celestica and Customer in such respective proportions as they may
mutually agree. Notwithstanding the foregoing, if Celestica is unable to
deliver a Product On-Time but expedites or finds alternative means of
delivery of such Product such that the Product is delivered to Customer's
customer within the time period committed by Customer to its customer,
Celestica shall not be deemed to be in breach of its delivery obligations
under this Section 5.4 or the Performance Metrics.
5.5 Risk of loss and damage of Products shall pass from Celestica to Customer
upon delivery by Celestica pursuant to Section 5.1.
5.6 All Products shall be packaged by Celestica in secure packaging in
accordance with standard industry packing practices for electronic
components and assemblies.
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6. ACCEPTANCE OF PRODUCTS
6.1 Customer may reject Products delivered to it provided that Customer
establishes, to Celestica's reasonable satisfaction, that such Products:
(a) have been damaged prior to delivery, (b) do not conform to the
associated Order, or (c) have not been either manufactured or delivered
in accordance with this Agreement, in each case for reasons attributable
to Celestica ("Rejected Products").
6.2 Customer shall notify Celestica in writing of Rejected Products within
thirty (30) days of delivery thereof to Customer pursuant to Section 5.1,
and will return Rejected Products to Celestica within ten (10) days of
receipt of such notice. Customer shall be deemed to have accepted a
Product if it fails to notify Celestica that it is rejecting such Product
within the 30-day period specified therefor in this Section 6.2. Customer
shall obtain an RMA from Celestica prior to returning any Rejected
Product. Celestica's issuance of an RMA shall not be unreasonably
withheld, delayed or conditioned.
6.3 The cost of returning Rejected Products to Celestica and of returning a
repaired or replacement Product to Customer shall be borne by Customer if
Celestica determines that the Rejected Product did not meet the
requirements for rejection as set out in Section 6.1. In all other
circumstances, the cost of returning Rejected Products to Celestica and
of returning a repaired or replacement Product to Customer shall be borne
by Celestica. Risk of loss in returning Rejected Products to Celestica
and of returning a repaired or replacement Products to Customer shall be
borne by the shipping party.
6.4 Upon receipt of a Rejected Product, Celestica shall, as soon as
reasonably practicable, at its election either repair, replace or credit
Customer for such Rejected Product. The cost associated with any such
repair, replacement, or credit shall be the responsibility of Celestica.
In the case of replacement or credit, title to the Rejected Product shall
pass to Celestica on delivery to Celestica.
6.5 Customer shall pay to Celestica a "no defect found charge" of an amount
equal to the lesser of (i) the Price of the applicable Product and (ii)
(**), in respect of any Product which is rejected by Customer but which
Celestica determines did not meet the requirements for rejection as set
out in Section 6.1.
7. ORDER and FORECAST, FLEXIBILITY AND RESCHEDULING
7.1 Customer may from time to time request that Celestica accept unforecasted
orders for Products or accelerate delivery dates of existing Orders. Upon
such request, Celestica shall notify Customer of all increased costs or
premium charges which will be imposed by Celestica in connection with
such request. If Customer agrees to pay such costs and charges, Celestica
shall use its commercially reasonable efforts to accept the unforecasted
Orders or accelerate the delivery dates of existing Orders as requested
by Customer, provided that the failure of Celestica to comply with any
such request shall not be deemed a breach by Celestica of any of its
obligations in this Agreement, or to affect any measure of its
performance thereof (including, without limitation, the Performance
Metrics).
7.2 Customer shall, upon written notice to Celestica, be permitted to
postpone the delivery of any Order which has a Delivery Date that is not
less than (**) days from the date of such notice without liability or
penalty hereunder, provided that Customer shall not postpone the delivery
of an Order to a date that is more than (**) days after the original
Delivery Date for such Order and Customer may not postpone the delivery
of any Order more than once. Unless otherwise agreed by Celestica, if
Customer postpones the delivery of an Order (or a portion thereof) to a
date that is more than (**) days after the original Delivery Date for
such Order, or if Customer refuses to take delivery of an Order (or a
portion thereof), Customer shall be deemed to have cancelled such Order
(or the relevant portion thereof) and shall be liable for the
cancellation charges payable pursuant to Section 8.1. If Customer is
deemed to have cancelled an Order as provided in this Section 7.2, and
such cancellation results in Celestica or any of its Affiliates having
any Material on hand for more than (**) after the originally scheduled
Delivery Date of such Order, such Material shall be deemed to be Excess
Material and shall be subject to the provisions of Article 16.
10
8. CANCELLATION
8.1 Except where Customer is permitted to do so pursuant to Section 17.5, if
Customer cancels an Order (or any portion thereof):
(a) for prototype, pilot or pre-production Products, Customer shall
pay to Celestica (i) the full Price for each prototype, pilot or
pre-production Product subject to such cancelled Order if the
manufacture thereof has been completed by Celestica at the time it
receives notice of cancellation of such Order; and (ii) (**) cost
for such Product plus an administrative charge in the amount of
(**) cost Price of each Product subject to such cancelled Order
which is a work-in-progress at the time Celestica receives notice
of such cancellation;
(b) for Products (other than prototype, pilot or pre-production
Products) which Celestica has completed or commenced manufacturing
at the time it receives notice of cancellation of such Order (or
the relevant portion thereof), Customer shall pay to Celestica:
(i) the full Price for each finished Product subject to such
Order; and (ii) (**) cost for such Product plus an administrative
charge in the amount of (**) of each Product subject to such
cancelled Order which is a work-in-progress at the time of such
cancellation; and
(c) for Products (other than prototype, pilot or pre-production
Products) which Celestica has not commenced manufacturing at the
time it receives notice of cancellation of such Order (or the
relevant portion thereof), then, if the Material associated with
such Product is not otherwise consumed by Customer through
subsequent Orders within (**) of such cancellation, Customer shall
pay to Celestica for each Product subject to such cancelled Order
(or the relevant portion thereof) an amount equal to (**) cost for
such Product.
8.2 In addition to the costs set out in Section 8.1, in the event of a
cancellation of an Order (or a portion thereof), Customer shall pay
Celestica:
(a) for all costs associated with any Obsolete Materials and/or Excess
Materials that arise as a result of the cancellation of such Order
(or the relevant portion thereof) in accordance with Article 16;
and
(b) an amount equal to the unrecovered balance of any investment made
or incurred by Celestica specifically in relation to the cancelled
Order with the prior written agreement of Customer and which has
not been fully recovered by Celestica from Customer through
amortization or other means as a result of the cancellation of
such Order.
8.3 If any Order (or a portion thereof) is cancelled due to a termination
pursuant to Article 24.2, Customer may direct Celestica to cease its
manufacturing operations in respect of Products affected by such
termination. In the event of such termination, Customer shall pay to
Celestica all relevant amounts specified in Sections 8.1 and 8.2.
8.4 In the event of any cancellation of any Order hereunder by Customer,
Celestica shall use commercially reasonable efforts to mitigate the costs
described in Section 8.1 on behalf of Customer.
8.5 Celestica shall deliver any fully or partially finished Products to
Customer that Customer pays Celestica for as a result of a cancelled
Order.
8.6 Except as expressly provided in this Section 8, Customer shall have no
liability or obligation whatsoever to Celestica for any Order which
Customer may cancel.
11
9. PRICES
9.1 Customer shall pay Celestica the Price for each Product purchased
hereunder as determined in accordance with this Article 9.
9.2 The Prices for the period commencing on the date hereof and ending on
December 31, 2004 shall be the Prices set out on Schedule F. Subject to
the provisions of Section 9.3, prior to the commencement of each Quarter
after such date, the Parties will meet to negotiate the Prices for the
subsequent Quarter in accordance with the provisions of this Article 9 at
Price review meetings to be arranged by the authorized representatives of
the Parties.
9.3 The Price for each Product shall at all times be based on the Material
prices set out in the Bill of Materials for such Product, together with a
mark-up to be applied thereto (the "Mark-Up"), all of which shall be
negotiated by the parties at the quarterly pricing review meetings to be
held pursuant to Section 9.2, except as otherwise provided in this
Section 9.3. For the period commencing on the Effective Date and ending
on March 31, 2005, the Mark-Up for each of the Products listed in
Schedule A shall be fixed at the dollar amount or percentage, as
applicable, specified for such Product in Schedule F. Celestica hereby
represents and warrants to Customer that each Mark-Up that is set out in
Schedule F and specified as a dollar amount is the Mark-Up that was
applied to the Product to which it relates in the Quarter ending on the
date hereof in connection with sales of such Products by Celestica to the
Business as conducted by the Celestica Entities on the date hereof.
9.4 Intentionally deleted.
9.5 The Mark-Up shall be based upon, among other things, industry-standard
benchmarks for labour and load rates, selling, general and administrative
expenses and material mark-up rates, and upon the volume of Products
forecasted to be purchased by Customer from time to time. If at any
quarterly pricing review the parties are unable to agree upon a revised
Price for a Product for the subsequent Quarter (the "New Price"), the
then current Price for such Product (the "Old Price") shall remain in
effect for such Quarter until the parties have agreed upon the New Price,
and following such agreement on the New Price for such Quarter, the
aggregate amount of any unrealized cost savings by Customer or unrealized
revenue by Celestica (as applicable) associated with Products purchased
by Customer during the period in such Quarter in which the Old Price
remained in effect shall be amortized over the New Price and over the
Product Price for any subsequent Quarters until such amount is fully
recovered by the party entitled to the benefit thereof. If the parties
fail to agree on a Price for a Product within 45 days of the commencement
of a Quarter, the parties shall use good faith efforts to reach an
agreement on such Price through the Dispute resolution procedure in
Section 25.1. If the Vice Presidents to whom the matter is referred in
Section 25.1 cannot reach an agreement within the period specified
therefor in such section, the parties shall extend such period or refer
the matter to such other representatives as they may deem appropriate.
(**).
9.6 Celestica and Customer agree, on a periodic basis, to jointly review the
Bill of Materials for the Products for purposes of minimizing Procurement
Lead Times, identifying the lowest priced source(s) of Materials, and
exchanging ideas on reducing the total Bill of Materials cost. Celestica
agrees to use its reasonable commercial efforts to implement any
agreements reached by the parties in respect of the foregoing.
9.7 If at any time during a Quarter the currency exchange rate of One Chinese
Renminbi (1 RMB) to One United States Dollar (USD$1), as reflected in
the New York Federal Reserve Bank noon buying rate on the last day of the
preceding Quarter, (the "Exchange Rate") changes by an amount equal to
(**) or more of the Exchange Rate in effect on the last day of the
immediately preceding (**), the Prices shall be revised to take into
account such
12
change in the Exchange Rate. All Prices that are revised in accordance
with this Section 9.6 shall be applicable to all Orders accepted by
Celestica following the agreed effective date of such Price revision,
notwithstanding that such revision may occur prior to the next scheduled
Price review meeting.
10. PAYMENT
10.1 Each Order for Products shall be invoiced by Celestica based on the
Prices in effect at the time of acknowledgement of the Order. Unless
expressly provided otherwise herein, payment of invoices for Products as
well as any other costs or charges payable by Customer under this
Agreement are due to Celestica without any set off or deduction in U.S.
dollars within (**) following the date of invoice or due date of such
costs or charges unless otherwise specified herein.
10.2 Celestica shall invoice Customer upon, or as soon as reasonably
practicable after, the delivery of Products pursuant to Section 5.1 or
the provision of Services.
10.3 Unless Customer provides Celestica with exemption certificates in form
and substance satisfactory to Celestica, Customer shall be solely
responsible for and shall pay all Transaction Taxes in any country
becoming payable or arising in connection with the services performed
under this Agreement.
10.4 If Customer fails to pay any invoice by the date payment is due,
Celestica may, in addition to its other rights and remedies under this
Agreement or at law charge a late payment charge at a rate of (**) of the
amount of such invoice per month. Customer shall be responsible for all
taxes or other governmental charges arising or becoming payable as a
result of the late payment by Customer of any invoice issued to it by
Celestica hereunder.
11. CUSTOMER CREDIT LIMIT
11.1 Celestica shall establish and from time to time advise Customer and each
Ordering Company in writing of Customer's (together with the Ordering
Companies') credit limit with Celestica (the "Customer Credit Limit").
Customer agrees that the aggregate Financial Liability (as defined below)
of Customer and each Ordering Company under this Agreement shall not at
any time exceed the Customer Credit Limit.
11.2 The initial Customer Credit Limit will be established after consultation
between Customer and Celestica and will be periodically reviewed during
the Term of this Agreement at Customer's request. Celestica may, in good
faith, revise the Customer Credit Limit upon reasonable prior written
notice to Customer.
11.3 If at any time the aggregate Financial Liability of Customer and the
Ordering Companies exceeds the then current Customer Credit Limit,
Celestica shall notify Customer, and shall be under no obligation to
accept any Orders from Customer or any Ordering Companies unless Customer
provides Celestica with security for such excess amounts in the form of a
financial letter of credit or other security acceptable to Celestica. If
Customer fails to provide such letter of credit or other security
acceptable to Celestica within thirty (30) days of the date of such
notice, Celestica may refuse to accept any new orders for Products from
Customer and to deliver any pending Orders until Customer reduces its
Financial Liability to an amount which is equal to or less than the
Customer Credit Limit.
11.4 For the purposes of this Article 11, the "Financial Liability" of
Customer and the Ordering Companies at any time shall mean an amount
equal to the sum of:
(i) the aggregate amount of all outstanding invoices issued at such
time by Celestica to Customer and the Ordering Companies under
this Agreement; and
(ii) the value at such time of all works-in-progress and finished goods
that Celestica and its Affiliates have on hand and of all
Materials that Celestica and its Affiliates have purchased or have
on order if such orders are not cancellable or such Materials are
13
not returnable to the suppliers thereof for full refund, in each
case in accordance with the purchase authorization granted to
Celestica in this Agreement;
less an amount equal to the sum of:
(x) the aggregate of all amounts payable by Celestica to Customer and
the Ordering Companies under this Agreement at such time; and
(y) the value of any other offsets or security provided by Customer to
Celestica under this Agreement at such time.
12. TITLE
12.1 Except as otherwise specified in Section 6.3 and Section 17.2, title to
Products shall pass from Celestica to Customer upon delivery pursuant to
Section 5.1.
13. INTELLECTUAL PROPERTY
13.1 All Customer Intellectual Property shall continue to be owned by or
licensed to Customer, and Celestica is hereby granted a non-exclusive,
royalty-free licence (or sublicence, as applicable) during the Term to
use such Customer Intellectual Property as may be necessary for Celestica
to perform its obligations under this Agreement. With respect to any
Customer Intellectual Property licensed to Customer, Customer warrants
that such licence is in good standing and that Customer has the right to
grant the sublicence granted hereby.
13.2 All Celestica Intellectual Property shall continue to be owned by
Celestica, and all Intellectual Property created by Celestica in the
course of manufacturing Products and providing Services under this
Agreement (other than any such Intellectual Property which relates solely
and uniquely to the Products) shall be owned by Celestica. Any
Intellectual Property created by Celestica in the course of manufacturing
Products or providing Services under this Agreement which relates solely
and uniquely to the Products shall be owned by Customer, but licensed to
Celestica pursuant to Section 13.1.
13.3 Upon expiration or termination of this Agreement, each party agrees to
promptly return to the other, any Intellectual Property owned by the
other party (or any of its Affiliates) together with all copies or
embodiments of such Intellectual Property, regardless of the format or
media on which such Intellectual Property may be stored.
13.4 Except as provided in Section 13.2 and other than the licence (or
sub-licence, as applicable) granted pursuant to Section 13.1, nothing in
this Agreement or any Order grants or shall be deemed to grant to a party
(whether directly, indirectly, or by implication, estoppel or otherwise)
any rights to any Intellectual Property created, owned by or licensed to
the other party.
14. QUALITY ASSURANCE
14.1 Celestica shall manufacture, test, repair and package the Products in
accordance with all applicable Specifications.
14.2 Celestica shall, at all times during the Term, maintain quality assurance
systems for its manufacturing obligations hereunder including, without
limitation, the control of Material quality, processing, assembly,
testing, packaging and shipping consistent with industry standards and,
at a minimum, sufficient to allow Celestica to achieve the Performance
Metrics set forth in Schedule C. The workmanship standard to be used by
Celestica in building Products is IPC-A-610 Rev. C Class 2, as published
by the Institute for Interconnecting and Packaging Electronic Circuits,
as amended, supplemented or replaced from time to time, and which shall
be deemed to be incorporated by reference herein.
14
14.3 Celestica shall perform its normal test procedures relating to Products
and Services, and any applicable test procedures specified in the
Specifications. If Celestica performs tests using test equipment,
procedures or software provided by Customer, Celestica shall have no
liability for defects in Products where failure to isolate or repair the
defect is attributable to such equipment, procedures or software.
14.4 Each party may during normal business hours and upon reasonable notice
and subject to the other party's normal security and confidentiality
requirements, review the other party's facilities and quality control
procedures as reasonably necessary to satisfy itself of the other party's
compliance with its obligations under this Agreement.
14.5 The parties will endeavour to meet on a quarterly basis to discuss and
resolve any issues which may arise under this Agreement, including those
relating to quality, performance, engineering changes, obsolescence or
excess.
14.6 Celestica shall at all times maintain an emergency backup manufacturing
plan at each Facility where it manufactures Products for Customer, which
plan shall include specific plans and procedures for the re-establishment
of manufacturing operations and shipment of Products in the event of a
catastrophic event affecting Celestica or the relevant Facility or both.
Upon request by Customer, Celestica shall provide Customer with a copy of
such plans.
15. CHANGE CONTROL
15.1 Either party may at any time propose changes to a Specification or
Product by issuing a written engineering change notice (an "ECN") to the
other party.
15.2 The recipient of an ECN shall use its commercially reasonable efforts to
provide to the party issuing the ECN a detailed response thereto within
thirty (30) days of receipt thereof. No change proposed to a
Specification or Product pursuant to an ECN shall be implemented unless
and until both parties have agreed to such ECN.
15.3 Celestica shall advise Customer of the likely impact of an ECN (including
but not limited to delivery scheduling and Prices) on the provisions of
any relevant Orders.
15.4 Neither party shall unreasonably withhold, delay or condition agreement
to a change proposed pursuant to an ECN and the parties shall endeavor to
agree and implement at the earliest opportunity changes proposed pursuant
to ECNs relating to personal and product safety.
15.5 Any Obsolete Materials and/or Excess Materials resulting from the
implementation of an ECN shall be subject to the provisions of Article
16.
15.6 All costs of implementing ECNs (including without limitation: NRE
charges; premium costs of Materials; Material handling charges; process
and tooling charges; administrative charges; engineering charges; and
evaluation and testing costs) shall be the responsibility of the
Customer, except for ECNs initiated by Celestica to improve its
manufacturing processes.
15.7 Any cost savings which are achieved by Celestica as a result of
implementing an ECN shall be apportioned between the parties on a
mutually agreeable basis.
16. EXCESS AND/OR OBSOLETE MATERIAL
16.1 If at the end of any month during the Term the aggregate quantity of any
item of Material that Celestica and its Affiliates have on hand or on
order (which order has been paid for) and which has been ordered,
manufactured or acquired by Celestica and/or its Affiliates in accordance
with Article 4, exceeds the quantity of such Material required by
Celestica and its Affiliates to manufacture Products in the (**)
15
(**) days following such time (based on the then current Forecast), such
excess quantity of Material shall constitute "Excess Material".
16.2 On or about the fifteenth (15th) day of each month, subject to Section
16.6, Celestica shall provide to Customer a notice, setting out the
amount and value of any Excess Material on hand at the end of the
previous month. Within thirty (30) days of the date on which Celestica
delivers such notice to Customer, Celestica will issue to Customer an
invoice for such Excess Material (the "Excess Material Invoice"). Within
seven (7) days of receipt by Customer of an Excess Material Invoice,
Customer may request that Celestica provide supporting documentation
which evidences that such Excess Material was procured in accordance with
Article 4. Provided that Celestica produces such documentation, Customer
shall pay Celestica a daily inventory carrying charge in an amount equal
to (**) of the aggregate value of such Excess Material per day from the
date that such Material becomes Excess Material until Customer elects to
purchase such Excess Material from Celestica pursuant to Section 16.2, or
is required to purchase such Excess Material from Celestica pursuant to
Section 16.5.
16.3 If Customer elects to purchase Excess Material from Celestica, it shall
purchase such Excess Material at an amount equal to the sum of the
following amounts:
(i) the price for the Excess Material to which such invoice relates,
as reflected in the applicable Bill of Materials at the time such
Material was procured by Celestica, and as set out in the Excess
Material Invoice;
(ii) an administrative charge equal to (**) of the amount in (i) above;
(iii) an amount equal to the reasonable costs and expenses of mitigation
incurred by Celestica pursuant to Section 16.6, including
under-recoveries resulting from the sale of Material at prices
less than the price for such Material reflected in the applicable
Bill of Materials, as well as all costs relating to vendor
re-stocking or return charges, all as specified by Celestica in
the notice delivered to Customer pursuant to this Section 16.3;
and
(iv) all applicable Transaction Taxes.
16.4 Customer shall keep Celestica's procurement organization apprised of any
Material purchased by Customer from Celestica under Section 16.3 which
remains suitable for use in the manufacture of Products, and the parties
shall negotiate in good faith for the purchase by Celestica of such
Material from Customer on an as-needed basis, prior to purchasing
additional Material from Material vendors. The purchase price of such
Material shall be at the cost reflected in the then current Bill of
Materials or as otherwise agreed to by the parties in writing.
16.5 In the event of:
(a) a complete or partial termination, rescheduling or cancellation of
an Order;
(b) a reduction at any time in the Forecast;
(c) the termination of all or any part of this Agreement; or
(d) a change in Specifications or a change in a Product pursuant to an
ECN;
which in each case is not due to a breach or default by Celestica and
which results in Celestica or its Affiliates having on hand or on order
(which order has been paid for) any Material (including, without
limitation, any Excess Material) which has been ordered, manufactured or
acquired by Celestica and/or its Affiliates in accordance with Article 4,
and which is not required by Celestica or its Affiliates to manufacture
Products for Customer within the (**) period after such time
16
(based on the then current Forecast), such Material shall constitute
"Obsolete Material" and, subject to Sections 16.6 and 16.7, Celestica
shall notify Customer of such Obsolete Material. Within seven (7) days of
delivering such notice to Customer, Celestica will issue to Customer an
invoice for such Obsolete Material (the "Obsolete Material Invoice").
Within seven (7) days of receipt by Customer of an Obsolete Material
Invoice, Customer may request that Celestica provide supporting
documentation which evidences that such Obsolete Material was procured in
accordance with Article 4. Provided that Celestica produces such
documentation, Customer shall purchase such Obsolete Material from
Celestica at an amount equal to the sum of the following amounts:
(i) the price for the Obsolete Material to which such invoice relates,
as reflected in the applicable Bill of Materials at the time such
Material was procured by Celestica, and as set out in the Obsolete
Material Invoice;
(ii) an administrative charge equal to (**) of the price for the
Obsolete Material to which such invoices relates, as reflected in
the then current Product Prices;
(iii) an amount equal to the reasonable costs and expenses of mitigation
incurred by Celestica pursuant to Section 16.6, including
under-recoveries resulting from the sale of Material at prices
less than the price for such Material as reflected in the
applicable Bill of Materials, as well as all costs and expenses
relating to vendor re-stocking or return charges, all as specified
by Celestica in the notice delivered to Customer pursuant to this
Section 16.5; and
(iv) all applicable Transaction Taxes.
16.6 Prior to delivering a notice of Excess Material or Obsolete Material to
Customer pursuant to Section 16.2 or 16.4, as applicable, Celestica shall
use its commercially reasonable efforts to:
(a) cancel outstanding orders for Excess Material and Obsolete
Material; and
(b) return or sell Excess Material and Obsolete Material to the
original supplier thereof or to a third party on such terms as
Celestica may determine at its discretion; and
(c) use Excess Material and Obsolete Material for the manufacture of
other products.
Such mitigation efforts shall continue for a period of up to fourteen
(14) days from the date the relevant Material becomes Excess Material or
Obsolete Material, as applicable.
16.7 Notwithstanding the persons designated in Section 25.8, all notices,
inventory purchase orders and any other communication required to be made
or delivered by either party to the other party pursuant to this Article
16 shall be sent to representatives agreed to in writing by the parties,
if different from those specified in Section 25.8.
16.8 All Disputes relating to Excess Material and Obsolete Material shall be
referred to the Dispute resolution procedures set out in Section 25.1.
17. CELESTICA WARRANTY
17.1 Celestica warrants that it shall without charge, repair, replace or
credit, as it may elect, any Product which is proved to be defective as a
result of a failure in Celestica's workmanship, provided that:
(a) Customer has notified Celestica in writing of the defect within
sixty (60) days after discovery of the defect; and
17
(b) such defective Product has been returned to Celestica's designated
repair location within (**) after the Delivery Date of such
Product to Customer (the "Warranty Period") (which period shall
not be extended by the repair or replacement of such Product),
except where the defect is discovered in the last month of the
Warranty Period, where Customer notifies Celestica in accordance
with Section 17.1(a) and returns the defective Product to
Celestica no later than thirty (30) days after the expiration of
the Warranty Period.
Customer shall obtain an RMA from Celestica prior to returning any
Products to Celestica under this Section 17.1. All returned Products
shall include documentation describing the nature of the defect, how it
was discovered and under what conditions it occurred. Celestica's
issuance of an RMA shall not be unreasonably withheld, delayed or
conditioned.
17.2 Celestica shall bear all costs of returning Products to Celestica's
designated repair facilities and of delivering repaired or replacement
Products to Customer, if the returned Products were found by Celestica to
be covered by the warranty in Section 17.1. For any Products which are
found by Celestica not to contain any defect or not to be covered by the
warranty in Section 17.1 after being analyzed and tested using
Celestica's standard repair procedures, Celestica shall document to
Customer its service charges for each Product analyzed and, with such
documentation, include an invoice to Customer which includes, for each
Product analyzed, a charge in the amount of the lesser of: (i) the Price
paid by Customer for the applicable Product, and (ii) (**). Where a
Product is to be replaced by Celestica, title to the replaced Product
shall pass from Customer to Celestica on delivery to Celestica, and title
to the replacement Product will pass from Celestica to Customer on
delivery to Customer pursuant to Section 5.1.
17.3 The warranty provided in Section 17.1 shall not apply to:
(a) Products which have been misused, modified, damaged, placed in an
unsuitable physical or operating environment or maintained
improperly or caused to fail by any product or service not
supplied by Celestica;
(b) Products which have been subjected to any repair not authorized in
writing in advance by Celestica;
(c) any defect caused by Customer or a third party or by an error or
omission or design or other fault in any Customer Information;
(d) any defect caused by, or arising directly or indirectly out of or
in connection with, a defect in a Material or Materials;
(e) prototypes and pre-production or pilot versions of Products, which
will be supplied "as is" without warranty of any kind; or
(f) Products for which Celestica has not performed the standard
inspection and test procedure at the request of the Customer.
17.4 To the extent permissible, Celestica shall extend to Customer the benefit
of any warranties provided to Celestica by the vendors or manufacturers
of Material, and upon request by Customer Celestica shall use all
commercially reasonable efforts to cause such Material vendors or
manufacturers to extend any such warranties to Customer for periods
comparable to the periods of the warranties offered by Customer to its
customers. If any vendor or manufacturer of Material is determined to
have supplied a defective item of Material that results in Product
failure or a warranty claim against Customer by any of its customers,
Celestica agrees to assist Customer in its efforts to resolve with such
vendor or manufacturer any quality issues and claims for Losses against
such vendor or manufacturer.
18
17.5 If during (**) under this Agreement Customer notifies Celestica that
it has a good faith belief that all or specific Products are defective
and that an Epidemic Condition (as defined below) exists, Celestica shall
prepare and forward to Customer a proposed corrective action plan ("CAP")
with respect to such Products within ten (10) days of such notification,
addressing implementation and procedure milestones for remedying such
Epidemic Condition. Notwithstanding anything to the contrary in this
Agreement, if Customer's customers postpone orders for Products affected
by the Epidemic Condition, upon notification of the Epidemic Condition
to Celestica, Customer shall have the right, without any liability
hereunder to Celestica, to postpone delivery of all or part of any
unshipped Orders for the Products affected by such Epidemic Condition
until such Epidemic Condition has been remedied by Celestica, by giving
written notice of such postponement to Celestica. If Celestica is unable
to implement the CAP within the time period specified therein and if
Customer's customers cancel orders for Products affected by the Epidemic
Condition, Customer shall have the right, without any liability to
Celestica under Section 8.1, to cancel Orders for the Products intended
to be delivered in respect of such cancelled orders; provided that
Customer shall remain liable to Celestica in accordance with Article 16
for all costs associated with any Obsolete Materials and/or Excess
Materials that arise as a result of any such cancellation. Should
Celestica not agree to the existence of an Epidemic Condition or should
Customer not agree to the CAP, then Celestica shall have the right to
suspend all or part of its unshipped Orders without liability to Customer
until such time as a mutually acceptable solution is reached.
17.6 An Epidemic Condition in one or more Products will be considered to exist
when at least one of the following conditions exists and such condition
(or conditions) is (or are) due to the same root cause and is (or are)
caused by Celestica's workmanship of the relevant Products:
(a) failure reports or statistical samplings show that (**) or more of
Products shipped to end users by Customer or (**) or more of the
Products shipped to Customer by Celestica during any two
consecutive months contain identical verifiable defects or exhibit
a highly objectionable symptom such as visible emissions of smoke
or overheating under specified operating conditions; or
(b) Product dead on arrival ("DOA") failures exceed a rate of (**)
of a sequentially delivered volume of at least (**) identical
Products over the course of a (**) period. For purposes of this
Agreement, a Product DOA failure shall not be deemed to have
occurred unless (i) the Product fails to operate as required by
the Specifications during testing, installation or upon its
first use, and (ii) Celestica has subsequently verified the
failure using the in-circuit test or functional test procedures
applied during manufacture of the Product as required by the
Specifications for such Product.
Notwithstanding anything to the contrary herein, only major functional
and visual, mechanical or appearance defects shall be considered in
determining whether an Epidemic Condition exists, and an Epidemic
Condition shall not include failures due to misapplication, alteration of
a Product Customer, failures induced by internally or externally
integrated subassemblies not approved by Celestica, or which are due to
any of the causes set out in Section 17.3.
17.7 In the event that Celestica develops a remedy for the defect(s) that
caused the Epidemic Condition and Customer agrees in writing that the
remedy is acceptable, Celestica shall, at its sole expense:
(a) incorporate the remedy in the Products evidencing the defect
giving rise to the Epidemic Condition in accordance with
Customer's instruction;
(b) include the required modification which corrects the defect in all
subsequent Products; and
(c) repair and/or replace Products that caused the Epidemic Condition.
Celestica shall bear risk of in-transit loss and damage for such
repaired and/or replaced Products.
19
17.8 Celestica and Customer shall agree on an implementation schedule for the
CAP, and Celestica shall use reasonable commercial efforts to implement
the remedy in accordance with the agreed-upon schedule. In connection
with the preparation of a CAP by Celestica, (**).
17.9 If Celestica and Customer are unable to (**), the matter shall be
referred to the Dispute resolution procedure set out in Section 25.1.
17.10 EXCEPT FOR CELESTICA'S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 19.3,
THIS ARTICLE 17 SETS OUT CELESTICA'S SOLE OBLIGATION AND LIABILITY, AND
CUSTOMER'S EXCLUSIVE REMEDIES, FOR CLAIMS BASED ON DEFECTS IN OR THE
FAILURE OF ANY PRODUCT OR SERVICE AND CELESTICA HEREBY DISCLAIMS ALL
OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED,
REGARDING THE PRODUCTS MANUFACTURED AND THE SERVICES PERFORMED HEREUNDER
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES, REPRESENTATIONS OR
CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18. CUSTOMER WARRANTY
18.1 Customer warrants that to the best of Customer's knowledge the Customer
Information and any other items or information supplied by Customer to
Celestica are accurate and contain all items and information of Customer
necessary for Celestica to manufacture and deliver the Products and
perform the Services.
18.2 Celestica shall promptly notify Customer of any manufacturing problems
which it encounters and believes are related to Product design or any
Customer Information. The parties shall jointly determine whether such
manufacturing problems are attributable to Product design or any Customer
Information. Where such problems are attributable to Customer
Information, Customer shall be responsible for all costs incurred by
Celestica to correct such problems. Celestica shall not implement any
changes to any Product design or any Customer Information without
Customer's prior approval. Where any such changes result in the delay of
any scheduled delivery date for a Product, Celestica shall have no
liability for such delay and Customer may not cancel any Orders for
Products affected thereby.
19. INDEMNIFICATION
19.1 Subject to the provisions of Article 23, Customer shall indemnify and
hold harmless Celestica and its Affiliates and their successors and
permitted assigns (hereinafter referred to as the "Celestica Indemnified
Parties") from and against any Losses which the Celestica Indemnified
Parties may sustain or incur as a direct result of any Claim brought by
or on behalf of a third party (other than an Affiliate of Celestica)
where such Claim or Loss arises as a result of, or directly or indirectly
out of or in connection with: (a) death or personal injury claimed to
have resulted from the negligence or willful misconduct of Customer
(provided, however, that where Customer's acts or omissions are
adjudicated to be only a contributing factor in such third party Claim,
Customer's indemnity shall only relate to the portion of such Claim
attributable to Customer's acts or omissions); (b) Celestica's compliance
with Customer Information, Customer's manufacturing processes or written
instructions given by, or on behalf of, Customer in manufacturing the
Products or providing the Services, including without limitation the use
of Customer Equipment in the manufacture of Products, except in each case
to the extent that any such Losses are attributable to the negligence or
willful misconduct of Celestica or its Affiliates; or (c) Claims that the
performance by Celestica of its obligations under this Agreement, or that
the Products or Specifications or any other information (including
Customer Information) or Customer Intellectual Property infringes any
Intellectual Property rights of third parties.
19.2 Celestica shall give Customer prompt notice in writing of all claims that
are the subject of indemnification under Section 19.1, shall permit
Customer to control the defense of any such claim, and shall provide
20
reasonable assistance and co-operation to Customer in the defense of any
such claim. Celestica may employ counsel, at its own expense, to assist
in the defense of any such claim, but shall have no authority to settle
any such claim on behalf of Customer.
19.3 Subject to the provisions of Article 23, Celestica shall indemnify and
hold harmless Customer and its Affiliates and their successors and
permitted assigns (hereinafter referred to as the "Customer Indemnified
Parties") from and against any Losses which the Customer Indemnified
Parties may sustain or incur as a direct result of any Claim brought by
or on behalf of a third party (other than an Affiliate of Customer) where
such Claim or Loss arises as a result of, or directly or indirectly out
of or in connection with: (a) death or personal injury claimed to have
resulted from the negligence or willful misconduct of Celestica
(provided, however, where Celestica's acts or omissions are adjudicated
to be only a contributing factor in such third party Claim, Celestica's
indemnity shall only relate to the portion of such Claim attributable to
Celestica's acts or omissions); or (b) Celestica's unauthorized use of
Intellectual Property of Customer or third parties as a result of its use
of machines or processes in the manufacture of the Products or the
provision of the Services, unless such machines or processes were
provided by, or were purported to be provided by, Customer or were based
on any Customer Information.
19.4 Customer shall give Celestica prompt notice in writing of claims that are
the subject of indemnification under Section 19.3, shall permit Celestica
to control the defense of any such claim, and shall provide reasonable
assistance and co-operation to Celestica in defense of any such claim.
Customer may employ counsel, at its own expense, to assist in the defense
of the claim, but Customer shall have no authority to settle any such
claim on behalf of Celestica.
20. CUSTOMER PROPERTY
20.1 All Customer Information may be used by Celestica as required by
Celestica for the purposes of performing its obligations under this
Agreement and any Orders.
20.2 All Customer Information shall remain Customer's property and shall be
treated by Celestica with substantially the same care as it treats its
own property of a similar nature but which in no event shall be less than
a reasonable amount of care. For certainty, Celestica shall be entitled
to retain one copy of all Customer Information, for internal archival
purposes.
20.3 Celestica acknowledges that certain Customer Equipment is located at each
of the Facilities which was delivered by Customer in trust to Celestica
for use in connection with the testing of the Products. Customer shall at
all times have and retain title to Customer Equipment. Celestica shall
bear all risk of loss or damage to Customer Equipment (except where such
loss results from Customer's gross negligence or willful misconduct) and
shall insure Customer Equipment against loss, theft or damage for its
replacement value and against personal injury and property loss related
to the Customer Equipment, and shall be liable to Customer for the
replacement value of such Customer Equipment. Celestica shall, at all
times during the Term, receive, hold, store and safeguard such Customer
Equipment and use the Customer Equipment exclusively to manufacture
Products for Customer.
20.4 Upon expiration or termination of this Agreement or at any time upon
request of Customer, Celestica shall return Customer Equipment to
Customer on an "as-is" basis. All freight costs associated with the
Customer Equipment shall be the sole responsibility for Customer.
20.5 In order to protect Customer's interest in the Customer Equipment,
Celestica agrees, from time to time, at the reasonable request of
Customer, to execute documents and instruments, and do other acts and
things required by law or, reasonably considered by Customer to be
necessary or prudent in order to evidence or perfect Customer's ownership
of the Customer Equipment or to protect Customer's ownership interest in
the Customer Equipment.
21
20.6 Customer Equipment shall at all times be subject to inspection by
Customer at Customer's sole discretion during normal business hours, upon
reasonable notice to Celestica, and subject to Customer's compliance with
the confidentiality and safety requirements of the Facility at which the
Customer Equipment is located. In addition to its other remedies
hereunder and at law, in the event of a breach by Celestica of any
provision of this Agreement, then Customer may in its discretion remove
any Customer Equipment. Customer shall then have the right to take
possession of all Customer Equipment at the Facilities without any
liability to Celestica.
20.7 No failure by Celestica to fulfill any of its obligations under this
Agreement, which is due to a failure by Customer to provide Celestica
with any Customer Equipment necessary for the manufacture and/or testing
of Products, shall be deemed to be a breach by Celestica of, or to
otherwise affect any measure of, Celestica's performance of its
obligations hereunder.
20.8 Except for the costs of routine maintenance, the costs of special
maintenance and of calibration and repair of any Customer tooling or
Customer Equipment shall at all times be the responsibility of Customer.
20.9 Customer shall be responsible for all Transaction Taxes payable or
arising as a result of Celestica having or taking possession, custody or
control of Customer Equipment.
21. CONFIDENTIALITY
21.1 The parties hereto shall hold the terms of this Agreement in confidence
and shall not disclose the terms hereof except to: (a) their respective
legal and financial advisors; (b) their underwriters and their respective
counsel, as part of their due diligence in connection with any offering
of securities of such party; (c) their lenders and their counsel, as part
of their due diligence in connection with any financings; and (d) stock
exchanges, securities commissions or other similar bodies (including in
public filings), to the extent required by applicable laws. Neither party
shall make any public statements with respect to this Agreement, except
as may be required under applicable laws and regulations (including,
without limitation, federal securities laws) or with the consent of the
other party, which consent will not be unreasonably withheld. In
addition, each party will be permitted to respond generally to inquiries
regarding its business, provided that it will not disclose specific terms
of this Agreement, except as may be required under applicable laws and
regulations.
22. GUARANTEE
22.1 C&D Parent hereby irrevocably and unconditionally guarantees to
Celestica, jointly and severally with Customer, the performance by
Customer of its obligations under this Agreement including, without
limitation, the indemnification obligations of Customer in Section 19.1.
Celestica shall not be required to give any notice to, or make any demand
on, Customer or to proceed against Customer's assets prior to requiring
the performance by C&D Parent of the obligations guaranteed under this
Section 22.1. C&D Parent agrees that its obligations under this Section
22.1 will not be discharged except by complete performance of all
obligations of Customer set forth in this Agreement. C&D Parent hereby
agrees, in furtherance of the foregoing and not in limitation of any
other right which Celestica may have against C&D Parent by virtue hereof,
that upon the failure of Customer to pay or perform any of its
obligations when and as the same shall become due hereunder, C&D Parent
will, upon demand, pay, perform or cause to be paid or performed all
obligations then due as aforesaid.
23. EXCLUSIONS AND LIMITATION OF LIABILITY
23.1 Subject to the provisions of Section 23.3(a), the total aggregate
liability at any time of a party (the "Indemnifying Party") to the other
party (the "Indemnified Party"), including, without limitation, (**),
whether resulting from claims made by a third party against the
Indemnified Party or otherwise, under or in connection with this
Agreement, regardless of the form of the action or the theory of
22
recovery, whether related to any single event or a series of related or
unrelated events, shall be limited at such time as follows:
(a) in the case of liability for Losses due to claims for damage to or
loss of tangible property, the value of such property, and
(b) in the case of liability for Losses due to any other claims, to
the greater of (i) (**).
23.2 Subject to the provisions of Section 23.3(b), neither party shall have
any liability to the other party under or in connection with this
Agreement, for any of the following:
(a) such party's indirect, incidental, collateral, consequential,
exemplary, punitive or special damages, including lost profits,
regardless of the form of the action or the theory of recovery,
even if such party has been advised of the possibility of such
damages; or
(b) Losses due to claims made by third parties against the Indemnified
Party, other than Losses that are the subject of indemnification
under Article 19.
23.3 (a) The limitation of liability set forth in Section 23.1 shall not
apply with respect to any of the following:
(i) claims relating to amounts for which one party has issued,
or is entitled to issue, an invoice to the other party
pursuant to this Agreement;
(ii) claims made by third parties against Celestica that the
performance by Celestica of its obligations under this
Agreement, the Products or Specifications, or any Customer
Information or Intellectual Property supplied or licensed
by or on behalf of Customer, infringes any Intellectual
Property rights of such third parties;
(iii) claims relating to the breach by one party of its
obligations under Section 21; and
(iv) claims relating to the wrongful termination or repudiation
of this Agreement or any of the material terms hereof by
either party.
(b) The limitation of liability set forth in Section 23.2 shall not
apply with respect to any of the following:
(i) claims relating to amounts for which one party has issued,
or is entitled to issue, an invoice to the other party
pursuant to this Agreement;
(ii) claims made by third parties against Celestica that the
performance by Celestica of its obligations under this
Agreement, the Products or Specifications, or any Customer
Information or Intellectual Property supplied or licensed
by or on behalf of Customer, infringes any Intellectual
Property rights of such third parties; and
(iii) claims relating to the wrongful termination or repudiation
of this Agreement or any of the material terms hereof by
either party.
23.4 Neither party may bring an action under this Agreement more than two (2)
years after the cause of action arose.
23
24. TERM AND TERMINATION
24.1 This Agreement:
(a) is effective from the Effective Date and continues for a period of
three (3) years from the Effective Date (the "Initial Term")
unless terminated in accordance with this Article 24; and
(b) will automatically renew for additional successive one (1) year
terms (each, a "Renewal Term") after the expiration of the Initial
Term unless either party delivers to the other, at least ninety
(90) days prior to the end of the Initial Term or any Renewal
Term, as the case may be, written notice to terminate this
Agreement at the end of the then current term. The Initial Term,
as it may be extended by one or more Renewal Terms is herein
referred to as the "Term".
24.2 Either party (the "Terminating Party") may by written notice to the other
party (the "Defaulting Party") terminate any Order and/or this Agreement:
(a) effective immediately upon delivery of such notice, if the
Defaulting Party has committed a material breach of any of the
terms of this Agreement (which, for certainty, shall not include a
failure of Celestica to meet any Performance Metrics) and has
failed to remedy the breach within sixty (60) days of receipt of
written notice from the Terminating Party requiring it to do so;
(b) effective immediately upon delivery of such notice, in the
circumstances set out in Schedule C;
(c) effective immediately upon delivery of such notice, if the
Defaulting Party becomes insolvent, admits in writing its
inability to pay its debts as they become due, commits or
threatens to commit an act of bankruptcy, is adjudged or declared
bankrupt, makes an assignment for the benefit of creditors or a
proposal, or institutes any proceedings, or any proceedings are
instituted in respect of the Defaulting Party under or any
legislation (whether domestic or foreign) relating to bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt,
winding-up, dissolution or liquidation, or if the Defaulting Party
by any act indicates its consent to, approval of or acquiescence
in, any such proceedings and such proceedings; or
(d) effective immediately upon delivery of such notice, if a
custodian, liquidator, receiver, receiver and manager,
receiver-manager, trustee or any other person with similar powers
is appointed for the Defaulting Party or any of its property or
assets with or without the Defaulting Party's application or
consent;
and in any such case on termination pursuant to Section 24.2(a), (b) or
(c), the Terminating Party shall have no further obligations to the
Defaulting Party except to make payment:
(a) of Prices for Product delivered prior to the date of termination;
and
(b) any Excess Material or Obsolete Material which Celestica and its
Affiliates then have on hand or on order at the time of any
termination of this Agreement or the expiry of the Term, or which
arises as a result of such termination or expiry,
less any amount owing to the Terminating Party under this Agreement.
24.3 The terms of Article 8 shall apply to any Orders cancelled as a result of
termination pursuant to this Article 24 or the expiry of the Term, and
subject to Section 24.4 the terms of Article 16 shall apply to any
Obsolete Material which Celestica and its Affiliates then have on hand or
on order at the time of any termination of this Agreement or the expiry
of the Term, or which arises as a result of such termination or expiry.
24
24.4 Notwithstanding anything to the contrary in Article 16, if Celestica has
any Obsolete Material on hand or on order at the time of termination of
this Agreement or the expiry of the Term (or if any Obsolete Material
arises as a result thereof), for a period of 60 days from the effective
date of termination of the Agreement or expiry of the Term, Customer
shall not be required to purchase such Obsolete Material from Celestica,
provided that at the end of such 60-day period Customer shall purchase
any remaining Obsolete Material that has not been consumed by Celestica
in the ordinary course of its business, in accordance with the provisions
of Article 16.
24.5 Celestica shall be entitled at its option to perform all accepted Orders
placed prior to the termination of this Agreement, and the terms of this
Agreement shall continue to apply to such Orders. Furthermore, unless
otherwise agreed in writing between the parties, the terms and conditions
of this Agreement shall remain in effect during and after the Term and
shall continue to govern any Orders issued by Customer.
24.6 Any rights or obligations under this Agreement which by their nature
continue after termination of this Agreement shall remain in effect until
they are completed.
24.7 Upon termination of this Agreement or the expiry of the Term and subject
to agreement of the parties on reasonable compensation to be paid by
Customer to Celestica (if any), Celestica shall provide such assistance
(including necessary technical support) as may be reasonably requested by
Customer to accomplish the orderly transition of the Customer Equipment
and the manufacturing services provided hereunder to Customer or to a
third party designated by Customer.
25. GENERAL
25.1 This Section 25.1 shall apply to all disputes, claims or controversies
arising out of or in any way connected with or arising from this
Agreement, its performance or breach, any failure of the parties to reach
agreement with respect to matters provided for in this Agreement, and all
matters of dispute relating to the rights and obligations of the parties
(each, a "Dispute"). Prior to the initiation of any legal proceeding with
respect to a Dispute, the parties shall cause their respective Project
Managers to attempt to resolve the Dispute. If the Project Managers
cannot resolve the Dispute within ten (10) days of the Dispute being
submitted to them, the Dispute shall be referred to a Vice President of
each of the parties. If the Vice Presidents of the parties are unable to
resolve the Dispute within twenty (20) days of such Dispute being
referred to them, then either party may initiate such legal or other
proceedings as may be available to it under applicable law.
25.2 Customer shall comply with all applicable laws and regulations and shall
obtain all necessary licences and consents for the resale, import or
export of Products under the laws and regulations of each relevant
jurisdiction.
25.3 Together with Orders, the attached Schedules and other documents
referenced herein, terms of this Agreement constitute the entire
agreement between the parties in respect of the subject matter thereof
and supersede and exclude all other representations, promises and
proposals, whether oral or written relating to the subject matter hereof.
25.4 In the event of any conflict or inconsistency between the terms of any
Order or Celestica's acknowledgements, invoices or other related
documents or other documents and the terms of this Agreement then the
terms of this Agreement shall prevail over such document.
25.5 If any provision or any part thereof contained in any Order or this
Agreement is, for any reason, held to be invalid or unenforceable in any
respect under the laws of any jurisdiction where enforcement of such
provision is sought, such invalidity or unenforceability shall not affect
any other provision of such Order or this Agreement and such Order and
this Agreement shall be construed as if such invalid or unenforceable
provision or part thereof had not been contained therein.
25
25.6 No purported variation or amendment of this Agreement or any Order shall
be valid unless made or confirmed in writing by a duly authorized
representative of each party.
25.7 Unless otherwise indicated, all dollar amounts referred to in this
Agreement, and all amounts payable under this Agreement, are expressed in
and shall be payable in the lawful currency of the United States of
America.
25.8 All notices required hereunder must be in writing and sent by prepaid
registered mail, by facsimile or by electronic mail or delivered
personally to the parties at their respective addresses set out below or
to such other address as a party may direct in writing from time to time.
A notice shall be deemed to have been given on the date of receipt if
sent by prepaid registered mail, on the date of transmission in the case
of facsimile or electronic communication or on the date of delivery if it
is delivered by hand.
Notices delivered to Customer shall be delivered to:
C&D Technologies, Inc.
3400 East Britannia Drive
Suite 122
Tucson, Arizona 85706
Attention: General Manager
Fax: (520) 741-4598
With a copy to:
C&D Technologies, Inc.
1400 Union meeting Road
Blue Bell, Pennsylvania 19422
Attention: General Counsel
Fax: (215) 619-7816
Notices delivered to Celestica shall be delivered to:
Celestica Hong Kong Limited
4/F Goldlion Holdings Centre
13-15 Yuen Shun Circuit
Siu Lek Yuen
Shatin, Hong Kong
Attention: General Manager
Fax: 852-2772-7948
With a copy to:
Celestica International Inc.
1150 Eglinton Avenue, East
Toronto, Ontario
M3C 1H7
Attention: Corporate Contracts Department
Fax: (416) 448-5895
25.9 The waiver of any term, condition or provision of this Agreement must be
in writing and signed by an authorized representative of the waiving
party. Any such waiver shall not be construed as a waiver of any other
term, condition or provision except as provided in writing, nor a waiver
of any subsequent breach of the same term, condition or provision.
26
25.10 Neither party shall be liable for any delay in performing or for failing
to perform any obligations under this Agreement (other than payment
obligations) where such failure or delay results from acts of God;
inclement weather; fire; explosions; floods; strikes; work stoppages;
slow-downs or other industrial disputes; accidents; riots or civil
disturbances; acts of government; terrorism; or delays by suppliers or
Material shortages or from any cause whatsoever beyond its reasonable
control and not due to its own negligence.
25.11 Celestica shall not subcontract any of its obligations under this
Agreement to any person (other than an Affiliate of Celestica) without
Customer's prior written consent, which shall not be unreasonably
withheld or delayed. Celestica may, upon advance written notice to
Customer and subject to Section 2.5, subcontract all or a portion of the
performance of the Services and any or all of its obligations under this
Agreement to any of its Affiliates without the consent of Customer
provided that Celestica shall remain liable for any such Affiliate's
performance of such Services or obligations.
25.12 This Agreement shall enure to the benefit of, and shall be binding on and
enforceable by, the parties hereto and their respective successors and
permitted assigns. Neither party may assign this Agreement or any part
thereof without the prior written consent of the other party, which
consent shall not be unreasonably withheld, delayed or conditioned.
Notwithstanding the foregoing and, in the case of an assignment by
Celestica, subject to the provisions of Section 2.5, either party may
assign all or any part of this Agreement to any of its Affiliates without
the prior consent of the other party, provided that no such assignment
shall relieve the assignor of any of its obligations hereunder.
25.13 The relationship of Celestica and Customer as established under this
Agreement and any Order(s) shall be and at all times remain one of
independent contractors, and neither party shall at any time nor in any
way represent itself as being a dealer, agent or other representative of
the other party or as having authority to assume or create obligations or
otherwise act in any manner on behalf of the other party.
25.14 The division of this Agreement into Articles and Sections and the
insertion of headings in the table of contents are for convenience of
reference only and shall not affect the construction or interpretation of
this Agreement. The terms "this Agreement", "hereof", "herein",
"hereunder" and similar expressions refer to this Agreement and not to
any particular Article, Section or other portion hereof. Unless otherwise
specified, any reference herein to an Article, Section or Schedule refers
to the specified Article or Section of, or Schedule to, this Agreement.
25.15 This Agreement and all transactions under it shall be governed by the
laws of the State of New York, USA exclusive of any provisions of the
United Nations Convention on the International Sale of Goods and without
regard to principles of conflict of laws. The parties submit to the
non-exclusive jurisdiction of the courts of the State of New York, USA.
The parties expressly waive any right they may have to a jury trial and
agree that any proceedings under this Agreement shall be tried by a judge
without a jury.
AGREED TO BY THE DULY AUTHORIZED REPRESENTATIVES OF THE PARTIES AS OF THE DATE
FIRST SET FORTH ABOVE:
27
DYANAMO POWER SYSTEM (USA) LLC
by /s/ Robert T. Marley
----------------------------------
Name: Robert T. Marley
Title: Treasurer
----------------------------------
Name:
Title:
CELESTICA HONG KONG LIMITED
by /s/ Monica Fung
----------------------------------
Name: Monica Fung
Title: Director
C&D TECHNOLOGIES INC.
by /s/ Robert T. Marley
----------------------------------
Name: Robert T. Marley
Title: Vice President, Treasurer
----------------------------------
Name:
Title:
SCHEDULE A
PRODUCT LIST AND DPPM THRESHOLDS
[SEE EXCEL SPREADSHEET]
1
"(**)" indicates portion deleted pursuant to the Company's application
requesting grant of confidential treatment.
Power Products with Demand Since Q4, 2003
- ---------------------------------------- ---------- ------------
Last
P/N Quarter
Plant with Demand Power Type DPPM
- ---------------------------------------- ---------- ------------ -----------------------------
073-20783-04-E-C CSU Q12004 DC-DC (**)
073-20783-04-E-D CSU Q12004 DC-DC (**)
073-20783-04-E-E CSU Q12004 DC-DC (**)
073-20795-03U-F-A CSU Q12004 DC-DC (**)
073-20803-06-B-A CSU Q12004 No production (**)
073-20803-06-B-D CSU Q12004 No production (**)
073-20805-06-B-A CSU Q12004 DC-DC (**)
073-20805-06-B-D CSU Q12004 DC-DC (**)
073-20805-06-C-A CSU Q12004 DC-DC (**)
073-20808-10-C-A CSU Q12004 DC-DC (**)
073-20813-01-F-B CSU Q12004 DC-DC (**)
073-20813-50-A-A CTH Q12004 No production (**)
073-20814-02-F-B CSU Q12004 DC-DC (**)
073-20821-05 CSU Q12004 DC-DC (**)
073-20829-20-A-A CSU Q12004 DC-DC (**)
073-20829-20-A-A1 CSU Q12004 DC-DC (**)
073-20830-02-C-C CSU Q12004 No production (**)
073-20830-60-A-A CTH Q12004 No production (**)
073-20830-80-A-A CTH Q12004 No production (**)
073-20831-02-C-B CSU Q12004 No production (**)
073-20831-60-A-A CTH Q12004 No production (**)
073-20831-80-A-A CTH Q12004 No production (**)
073-20832-02-NPI CSU Q12004 DC-DC (**)
073-20832-60-A-A CSU Q12004 DC-DC (**)
073-20832-80-A-A CTH Q12004 No production (**)
073-20833-03-M-B CTH Q12004 No production (**)
073-20834-03-J-D CTH Q12004 No production (**)
073-20840-03-C-A CSU Q12004 DC-DC (**)
073-20840-21-D-A1 CSU Q12004 DC-DC (**)
073-20842-03-D-B CSU Q12004 DC-DC (**)
073-20842-03-E-A CSU Q12004 DC-DC (**)
073-20842-03-E-B CSU Q12004 DC-DC (**)
0732084203VES-10-A CSU Q12004 DC-DC (**)
073-20842-04 CSU Q12004 DC-DC (**)
073-20849-05-A-A CTH Q12004 No production (**)
0732085002VES-06-A CSU Q12004 No production (**)
073-20851-60 CSU Q12004 DC-DC (**)
073-20858-04-A-A CSU Q12004 DC-DC (**)
0732085804VES-02-A CSU Q12004 DC-DC (**)
073-20859-40 CSU Q12004 DC-DC (**)
0732087201VES-03-A CSU Q12004 No production (**)
0732087302VES-04-A CSU Q12004 No production (**)
115CPWS-08-D CSU Q12004 AC-DC (**)
123840C-59-31-A CTH Q12004 AC-DC (**)
123840CFRU-59-57-A CTH Q12004 AC-DC (**)
123840CPWS-60-A CTH Q12004 AC-DC (**)
16763CPWS-05-A CSU Q12004 AC-DC (**)
248480CVES-B-C CTH Q12004 No production (**)
271944CEZS-03-A CSU Q12004 No production (**)
285122CVES-B-C CTH Q12004 DC-DC (**)
304020CVES CSU Q12004 No production (**)
320160CVES-A-C CTH Q12004 No production (**)
43063CFRU-4-5-A CTH Q12004 DC-DC (**)
43063CPWS-4-E CTH Q12004 DC-DC (**)
43063CPWS-4-F CTH Q12004 DC-DC (**)
47243C-16-16-A CTH Q12004 AC-DC (**)
47243C-17-38-A CTH Q12004 AC-DC (**)
47243CPWS-11-A CTH Q12004 AC-DC (**)
47243CPWS-11-D CTH Q12004 AC-DC (**)
56K02390PWS CSU Q12004 AC-DC (**)
9744CPWS-10-A CSU Q12004 AC-DC (**)
AP08883PWS-01-A CSU Q12004 AC-DC (**)
AP10205PWS-07-A CSU Q12004 No production (**)
AP10248PWS-01-A CSU Q12004 AC-DC (**)
AP102614PWS-01-A CSU Q12004 AC-DC (**)
AP114311PWS-01-A CSU Q12004 AC-DC (**)
AP11913PWS-01-A CSU Q12004 AC-DC (**)
AP1191FRU3PWS-01-A CSU Q12004 AC-DC (**)
EHS020015BD0-3PWS CSU Q12004 DC-DC (**)
EHS0200180C0-3PWS CSU Q12004 DC-DC (**)
EHS0200250C0-2PWS CSU Q12004 DC-DC (**)
HHS0045200C0-2-1C CSU Q12004 DC-DC (**)
HHS004520AC0-1-1C CSU Q12004 DC-DC (**)
JC015413PWS-01-A CSU Q12004 AC-DC (**)
QHS0400250C0-1-2A CSU Q12004 DC-DC (**)
RH125916PWS-1-D CTH Q12004 No production (**)
RH127314PWS-1-A CTH Q12004 No production (**)
RH12855PWS-1-A CTH Q12004 DC-DC (**)
RH12856PWS-1-C CTH Q12004 DC-DC (**)
RH12858PWS-7-A CTH Q12004 DC-DC (**)
RH12859PWS-8-1-A CTH Q12004 DC-DC (**)
RH1285FRUCPWS-7-A CTH Q12004 DC-DC (**)
RH13237PWS-3-A CTH Q12004 DC-DC (**)
RH13237PWS-6-A CTH Q12004 DC-DC (**)
RH13238PWS-7-1-A CTH Q12004 DC-DC (**)
RH1323FRUBPWS-6-A CTH Q12004 DC-DC (**)
RH13287PWS-5-A CTH Q12004 DC-DC (**)
RH13287PWS-5-B CTH Q12004 DC-DC (**)
RH13425PWS-5-A CTH Q12004 DC-DC (**)
RH13622PWS-7-A CTH Q12004 DC-DC (**)
RH13632PWS-5-A CTH Q12004 DC-DC (**)
RH13652PWS-6-A CTH Q12004 DC-DC (**)
RH13652PWS-6-B CTH Q12004 DC-DC (**)
073-20805-60 CSU Q22004 DC-DC (**)
073-20813-50 CSU Q22004 DC-DC (**)
0732081402VES-12-A CSU Q22004 DC-DC (**)
0732082105VES-10-A CSU Q22004 DC-DC (**)
073-20829-20 CSU Q22004 DC-DC (**)
073-20840-21 CSU Q22004 DC-DC (**)
0732084205VES-01-A CSU Q22004 DC-DC (**)
073-20850-03 CSU Q22004 No production (**)
0732085403VES-02-A CSU Q22004 DC-DC (**)
073-20859-20 CSU Q22004 DC-DC (**)
073-20862-20 CSU Q22004 No production (**)
0732086411VES-01-A CSU Q22004 DC-DC (**)
073-20864-20 CSU Q22004 DC-DC (**)
073-20864-40 CSU Q22004 DC-DC (**)
073-20868-40 CSU Q22004 DC-DC (**)
123840CPWS-60-B CTH Q22004 AC-DC (**)
1301862EZS-02-A CSU Q22004 AC-DC (**)
1301867EZS-02-A CSU Q22004 AC-DC (**)
1301898EZS-01-A CSU Q22004 AC-DC (**)
1303230EZS-01-A CSU Q22004 AC-DC (**)
1303303EZS-01-A CSU Q22004 AC-DC (**)
1305620EZS-04-A CSU Q22004 AC-DC (**)
160K44650PWS-02-A CSU Q22004 AC-DC (**)
166980CPWS-07-A CSU Q22004 AC-DC (**)
16749CPWS-06-B CSU Q22004 AC-DC (**)
248480CVES CSU Q22004 No production (**)
285122CVES-C-A CTH Q22004 DC-DC (**)
304020CVES-01-A CSU Q22004 No production (**)
304061CVES CSU Q22004 No production (**)
325360CVES-05-A CSU Q22004 No production (**)
333283CEZS-03-A CSU Q22004 No production (**)
333350CEZS-04-A CSU Q22004 No production (**)
333464CEZS-01-A CSU Q22004 No production (**)
AP0877PWS CSU Q22004 AC-DC (**)
AP0888FRU3PWS-01-A CSU Q22004 AC-DC (**)
AP101316PWS-01-A CSU Q22004 AC-DC (**)
AP10206PWS-01-A CSU Q22004 AC-DC (**)
AP102614PWS CSU Q22004 AC-DC (**)
AP114312PWS-01-A CSU Q22004 No production (**)
AP1172FRU1PWS-04-A CSU Q22004 AC-DC (**)
AP118912PWS CSU Q22004 AC-DC (**)
AP1193FRUAPWS-01-A CSU Q22004 AC-DC (**)
AP1198FRUAPWS CSU Q22004 AC-DC (**)
HHS0045200C0-2-5A CSU Q22004 DC-DC (**)
HHS0045200C0-2PWS CSU Q22004 DC-DC (**)
HHS004520AC0-1PWS CSU Q22004 DC-DC (**)
JC015414PWS CSU Q22004 AC-DC (**)
QHS0121200D0-2-1A CSU Q22004 DC-DC (**)
QHS0250250C0-Q4PWS CSU Q22004 DC-DC (**)
QHS0250330C0-Q6-1A CSU Q22004 DC-DC (**)
QHS0400250C0-1PWS CSU Q22004 DC-DC (**)
QHS0500150D0-1-3A CSU Q22004 DC-DC (**)
RH1285APWS-9-A CTH Q22004 DC-DC (**)
RH1285FRUEPWS-9-A CTH Q22004 DC-DC (**)
RH13239PWS-8-B CTH Q22004 DC-DC (**)
RH1323FRUDPWS-8-B CTH Q22004 DC-DC (**)
RH13373PWS-02-A CSU Q22004 AC-DC (**)
RH13425PWS-5-B CTH Q22004 DC-DC (**)
0732078304VES-04-A CSU Q32004 DC-DC (**)
0732079503UVS-08-A CSU Q32004 DC-DC (**)
073-20805-06 CSU Q32004 DC-DC (**)
0732081301VES-04-A CSU Q32004 DC-DC (**)
073-20821-50 CSU Q32004 DC-DC (**)
0732082904VES-07-A CSU Q32004 DC-DC (**)
073-20833-03-N-A CTH Q32004 DC-DC (**)
073-20834-03-M-A CTH Q32004 DC-DC (**)
0732084003VES-01-A CSU Q32004 DC-DC (**)
073-20849-05-D-A CTH Q32004 DC-DC (**)
073-20849-06-A-A CTH Q32004 DC-DC (**)
0732085160VES-05-A CSU Q32004 DC-DC (**)
073-20854-03 CSU Q32004 DC-DC (**)
0732085804VES-05-A CSU Q32004 DC-DC (**)
0732087201VES-04-A CSU Q32004 No production (**)
123840CFRUPWS-60-B CTH Q32004 AC-DC (**)
123840CPWS-60-C CTH Q32004 AC-DC (**)
123840CPWS-60-D CTH Q32004 AC-DC (**)
125446CPWS-13-A CTH Q32004 AC-DC (**)
1300530EZS-02-A CSU Q32004 AC-DC (**)
1301193EZS-02-A CSU Q32004 AC-DC (**)
1301341EZS-04-A CSU Q32004 AC-DC (**)
1301345EZS-04-A CSU Q32004 AC-DC (**)
1301423EZS-04-A CSU Q32004 AC-DC (**)
1301470EZS-04-A CSU Q32004 AC-DC (**)
1301682EZS-02-A CSU Q32004 AC-DC (**)
1301684EZS-01-A CSU Q32004 AC-DC (**)
1301748EZS-04-A CSU Q32004 AC-DC (**)
1301804EZS-03-A CSU Q32004 AC-DC (**)
1301918EZS-03-A CSU Q32004 AC-DC (**)
1301961EZS-01-A CSU Q32004 AC-DC (**)
1301967EZS-02-A CSU Q32004 AC-DC (**)
1302629EZS-04-A CSU Q32004 AC-DC (**)
1302696EZS-04-A CSU Q32004 AC-DC (**)
1302949EZS-02-A CSU Q32004 AC-DC (**)
1303107EZS-01-A CSU Q32004 AC-DC (**)
1303113EZS-02-A CSU Q32004 AC-DC (**)
1303154EZS-01-A CSU Q32004 AC-DC (**)
1303177EZS-02-A CSU Q32004 AC-DC (**)
1303193EZS-03-A CSU Q32004 AC-DC (**)
1303197EZS-04-A CSU Q32004 AC-DC (**)
1303239EZS-01-A CSU Q32004 AC-DC (**)
1303275EZS-02-A CSU Q32004 AC-DC (**)
1303281EZS-02-A CSU Q32004 AC-DC (**)
1303282EZS-03-A CSU Q32004 AC-DC (**)
1303298EZS-01-A CSU Q32004 AC-DC (**)
1303299EZS-01-A CSU Q32004 AC-DC (**)
1303318EZS-01-A CSU Q32004 AC-DC (**)
1303357EZS-04-A CSU Q32004 AC-DC (**)
1303365EZS-03-A CSU Q32004 AC-DC (**)
1303393EZS-02-A CSU Q32004 AC-DC (**)
1303476EZS-03-A CSU Q32004 AC-DC (**)
1304172EZS-06-A CSU Q32004 AC-DC (**)
1306355EZS-03-A CSU Q32004 AC-DC (**)
1306381EZS-04-A CSU Q32004 AC-DC (**)
1310693EZS-01-A CSU Q32004 AC-DC (**)
1312839EZS-02-A CSU Q32004 AC-DC (**)
248480CVES-01-A CSU Q32004 No production (**)
259566CEZS-01-A CSU Q32004 No production (**)
271944CEZS-06-A CSU Q32004 No production (**)
278155CEZS-01-A CSU Q32004 No production (**)
278161CEZS-01-A CSU Q32004 No production (**)
278180CEZS-01-A CSU Q32004 No production (**)
278340CEZS-01-A CSU Q32004 No production (**)
278360CEZS-06-A CSU Q32004 No production (**)
278400CEZS-01-A CSU Q32004 No production (**)
278420CEZS-01-A CSU Q32004 No production (**)
278440CEZS-01-A CSU Q32004 No production (**)
279560CEZS-01-A CSU Q32004 No production (**)
283760CEZS-01-A CSU Q32004 No production (**)
285122CVES-C-B CTH Q32004 DC-DC (**)
288291CEZS-03-A CSU Q32004 No production (**)
288560CEZS-01-A CSU Q32004 No production (**)
288660CEZS-01-A CSU Q32004 No production (**)
288680CEZS-01-A CSU Q32004 No production (**)
289700CEZS-01-A CSU Q32004 No production (**)
290441CEZS-01-A CSU Q32004 No production (**)
290500CEZS-01-A CSU Q32004 No production (**)
290520CEZS-01-A CSU Q32004 No production (**)
290541CEZS-01-A CSU Q32004 No production (**)
300221CVES CSU Q32004 No production (**)
333300CEZS-01-A CSU Q32004 No production (**)
341000303PBS-02-A CSU Q32004 AC-DC (**)
3N02346010CES-02-A CSU Q32004 AC-DC (**)
43063CFRUPWS-4-D CTH Q32004 DC-DC (**)
43063CPWS-4-G CTH Q32004 DC-DC (**)
47243CFRUPWS-19-1A CTH Q32004 AC-DC (**)
47243CPWS-19-1A CTH Q32004 AC-DC (**)
AP0927PWS CSU Q32004 AC-DC (**)
AP0979CPWS-01-A CSU Q32004 AC-DC (**)
AP0979FRUCPWS-01-A CSU Q32004 AC-DC (**)
AP101413PWS-03-D CSU Q32004 AC-DC (**)
AP1018APWS-01-A CSU Q32004 AC-DC (**)
AP1019APWS-01-A CSU Q32004 AC-DC (**)
AP10206PWS-02-A CSU Q32004 AC-DC (**)
AP10214PWS CSU Q32004 AC-DC (**)
AP10248PWS-01-B CSU Q32004 AC-DC (**)
AP102614PWS-01-B CSU Q32004 AC-DC (**)
AP1045BPWS-01-A CSU Q32004 AC-DC (**)
AP114314PWS-01-A CSU Q32004 AC-DC (**)
AP1169FRUAPWS CSU Q32004 AC-DC (**)
AP1183CPWS-03-B CSU Q32004 AC-DC (**)
AP1190CPWS-01-A CSU Q32004 AC-DC (**)
AP1190FRUCPWS-01-A CSU Q32004 AC-DC (**)
AP11913PWS-01-B CSU Q32004 AC-DC (**)
AP1191FRU3PWS-01-B CSU Q32004 AC-DC (**)
AP1193APWS-01-A CSU Q32004 AC-DC (**)
AP1195FRUPWS CSU Q32004 AC-DC (**)
AP1204FRUAPWS CSU Q32004 AC-DC (**)
AP1244FRUBPWS CSU Q32004 AC-DC (**)
AP1255FRUAPWS CSU Q32004 AC-DC (**)
EHS0200150C0-4-1A CSU Q32004 DC-DC (**)
EHS020015BD0-3-2A CSU Q32004 DC-DC (**)
EHS0200180C0-2-1C CSU Q32004 DC-DC (**)
EHS0200180D0-2PWS CSU Q32004 DC-DC (**)
HEQB124812-2PWS CSU Q32004 DC-DC (**)
HHS0045200B0-2-3A CSU Q32004 DC-DC (**)
HHS004520AB0-1-4A CSU Q32004 DC-DC (**)
JC015416PWS-01-A CSU Q32004 AC-DC (**)
QHS0121200D0-2PWS CSU Q32004 DC-DC (**)
QHS0250330B0-1PWS CSU Q32004 DC-DC (**)
QHS0250330C0-1-1A CSU Q32004 DC-DC (**)
QHS0400250C0-1-3A CSU Q32004 DC-DC (**)
QHS040025AC0-1-1A CSU Q32004 DC-DC (**)
QHS0500150D0-2PWS CSU Q32004 DC-DC (**)
QHS0550120B0-1-1A CSU Q32004 DC-DC (**)
RH1264FRUBPWS CSU Q32004 AC-DC (**)
RH1285BPWS-10-C CTH Q32004 DC-DC (**)
RH1285BPWS-10-CSU1 CTH Q32004 DC-DC (**)
RH13053PWS CSU Q32004 AC-DC (**)
RH1323APWS-10-A CTH Q32004 DC-DC (**)
RH1323APWS-9-B CTH Q32004 DC-DC (**)
RH1323APWS-9-CSU1 CTH Q32004 DC-DC (**)
RH13287PWS-5-C CTH Q32004 DC-DC (**)
RH13287PWS-7-A CTH Q32004 DC-DC (**)
RH13425PWS-5-C CTH Q32004 DC-DC (**)
RH13425PWS-7-A CTH Q32004 DC-DC (**)
RH13532PWS-02-A CSU Q32004 AC-DC (**)
RH13543PWS CSU Q32004 No production (**)
RH13622PWS-7-C CTH Q32004 DC-DC (**)
RH13622PWS-9-A CTH Q32004 DC-DC (**)
RH13632PWS-5-C CTH Q32004 DC-DC (**)
RH13632PWS-7-A CTH Q32004 DC-DC (**)
RH13652PWS-6-C CTH Q32004 DC-DC (**)
RH13652PWS-8-A CTH Q32004 DC-DC (**)
073-20795-03U-E-B CSU Q42003 DC-DC (**)
073-20814-02-E-A CSU Q42003 DC-DC (**)
073-20821-03-E-B CSU Q42003 DC-DC (**)
073-20829-03-B-A CSU Q42003 DC-DC (**)
073-20834-03-J-C CTH Q42003 No production (**)
073-20840-03-A-A CSU Q42003 DC-DC (**)
073-20840-20-D-A2 CTH Q42003 No production (**)
073-20840-21-B-AA CTH Q42003 No production (**)
073-20842-04-A-A CSU Q42003 DC-DC (**)
073-20849-04-D-A CTH Q42003 AC-DC (**)
123840C-59-57-A CTH Q42003 No production (**)
1301919EZS-03-A CSU Q42003 AC-DC (**)
1303193EZS-01-A CSU Q42003 AC-DC (**)
1303357EZS-02-A CSU Q42003 AC-DC (**)
1304172EZS-04-A CSU Q42003 AC-DC (**)
160K39170PWS-02-A CSU Q42003 AC-DC (**)
164541CVES-A-G CTH Q42003 No production (**)
166980CPWS-05-A CSU Q42003 AC-DC (**)
278360CEZS-01-A CSU Q42003 No production (**)
288291CEZS-01-A CSU Q42003 No production (**)
294456CVES-C-B CTH Q42003 No production (**)
304020CVES-A-A CTH Q42003 No production (**)
314065CVES-A-A CTH Q42003 No production (**)
320160CVES-A-B CTH Q42003 No production (**)
43063C-4-14-A CTH Q42003 DC-DC (**)
43063CFRUPWS-4-B CTH Q42003 DC-DC (**)
47243CFRUPWS-5-A CTH Q42003 AC-DC (**)
75001013385PS-09-A CSU Q42003 No production (**)
7509770997APWS CSU Q42003 No production (**)
750978997PWS CSU Q42003 No production (**)
AP0888FRUPWS CSU Q42003 AC-DC (**)
AP0888PWS CSU Q42003 AC-DC (**)
AP0951FRUAPWS CSU Q42003 AC-DC (**)
AP0973FRU1PWS-02-A CSU Q42003 AC-DC (**)
AP101316PWS CSU Q42003 AC-DC (**)
AP101816PWS-05-A CSU Q42003 No production (**)
AP1021FRU2PWS CSU Q42003 AC-DC (**)
AP102312PWS-03-A CSU Q42003 No production (**)
AP10246PWS CSU Q42003 No production (**)
AP105012PWS-01-B CSU Q42003 AC-DC (**)
AP1069FRUAPWS CSU Q42003 AC-DC (**)
AP1167FRUPWS-04-A CSU Q42003 AC-DC (**)
AP1173FRUAPWS-02-A CSU Q42003 AC-DC (**)
AP1205FRUAPWS CSU Q42003 AC-DC (**)
AP1257FRU1PWS-03-A CSU Q42003 AC-DC (**)
EHS0100500C0-Q1-2A CSU Q42003 DC-DC (**)
EHS0150330A0-1-1A CSU Q42003 DC-DC (**)
EHS0150330B0-1-1A CSU Q42003 DC-DC (**)
EHS0150330C0-1-1A CSU Q42003 DC-DC (**)
EHS0150331A0-1-1A CSU Q42003 DC-DC (**)
EHS0150331B0-1-1A CSU Q42003 DC-DC (**)
EHS0150331C0-1-1A CSU Q42003 DC-DC (**)
EHS0200120C0-Q1-3A CSU Q42003 No production (**)
EHS0200150A0-4-1A CSU Q42003 DC-DC (**)
EHS0200150B0-4-1A CSU Q42003 DC-DC (**)
EHS0200151A0-4-1A CSU Q42003 DC-DC (**)
EHS0200151B0-4-1A CSU Q42003 DC-DC (**)
EHS0200151C0-4-1A CSU Q42003 DC-DC (**)
EHS020015BD0-2PWS CSU Q42003 DC-DC (**)
EHS020015CC0-1-1A CSU Q42003 DC-DC (**)
EHS0200180A0-2-1A CSU Q42003 DC-DC (**)
EHS0200180B0-2-1B CSU Q42003 DC-DC (**)
EHS0200180C0-2-1B CSU Q42003 DC-DC (**)
EHS0200180D0-1PWS CSU Q42003 DC-DC (**)
EHS0200181A0-2-1A CSU Q42003 DC-DC (**)
EHS0200181B0-2-1A CSU Q42003 DC-DC (**)
EHS0200181C0-2-1A CSU Q42003 DC-DC (**)
EHS0200250C0-1-1A CSU Q42003 DC-DC (**)
EHS0200250C0-Q2-1B CSU Q42003 DC-DC (**)
HHS0045200C0-1-1A CSU Q42003 DC-DC (**)
HHS0045200C0-1-1B CSU Q42003 DC-DC (**)
HHS0045200C0-2-1A CSU Q42003 DC-DC (**)
IHQ0000000C0-Q1-2A CSU Q42003 No production (**)
IHQ0350330C0-Q2-3A CSU Q42003 DC-DC (**)
ITQ0000001C0-Q1-1A CSU Q42003 No production (**)
ITQ0400251C0-Q1-1A CSU Q42003 DC-DC (**)
ITQ0400251C0-Q1-2A CSU Q42003 DC-DC (**)
JC015412PWS-01-A CSU Q42003 AC-DC (**)
QHS0121200B0-Q1-2A CSU Q42003 DC-DC (**)
QHS0121200D0-Q1-2A CSU Q42003 DC-DC (**)
QHS0250180C0-Q3PWS CSU Q42003 DC-DC (**)
QHS0250250C0-Q3-11 CTH Q42003 DC-DC (**)
QHS0250250C0-Q3-1A CTH Q42003 DC-DC (**)
QHS0250330C0-Q5-11 CTH Q42003 DC-DC (**)
QHS0250330C0-Q5PWS CSU Q42003 DC-DC (**)
QHS0300250C0-Q2-2A CSU Q42003 DC-DC (**)
QHS0350330B0-1-2A CSU Q42003 DC-DC (**)
QHS0350331B0-1PWS CSU Q42003 DC-DC (**)
QHS0400250A0-1-1A CSU Q42003 DC-DC (**)
QHS0400250B0-1-1A CSU Q42003 DC-DC (**)
QHS0400250B0-1-2A CSU Q42003 DC-DC (**)
QHS0400250C0-1-1A CSU Q42003 DC-DC (**)
QHS0400250C0-1-1B CSU Q42003 DC-DC (**)
QHS0400251B0-1-1A CSU Q42003 DC-DC (**)
QHS040025AC0-1PWS CSU Q42003 DC-DC (**)
QHS0500150B0-1PWS CSU Q42003 DC-DC (**)
QHS0500150D0-1-1A CSU Q42003 DC-DC (**)
QHS0500151B0-1PWS CSU Q42003 DC-DC (**)
QHS0500180B0-1-1A CSU Q42003 DC-DC (**)
QHS0500180C0-1-1A CSU Q42003 DC-DC (**)
QHS0500181B0-1-1A CSU Q42003 DC-DC (**)
QHS0550120B0-1PWS CSU Q42003 DC-DC (**)
QHS0550120C0-Q1-1A CSU Q42003 DC-DC (**)
QHS0550121B0-Q1PWS CSU Q42003 DC-DC (**)
RH125917PWS-1-A CTH Q42003 No production (**)
RH1265FRU1PWS CSU Q42003 AC-DC (**)
RH1278BPWS-02-A CSU Q42003 No production (**)
RH12858PWS CSU Q42003 No production (**)
RH12858PWS-3-A CTH Q42003 DC-DC (**)
RH1295DPWS-01-A CSU Q42003 No production (**)
RH1307BPWS CSU Q42003 No production (**)
RH13237PWS CSU Q42003 No production (**)
RH13287PWS-1-B CTH Q42003 DC-DC (**)
RH13425PWS-1-B CTH Q42003 DC-DC (**)
RH13622PWS-1-B CTH Q42003 DC-DC (**)
RH13632PWS-3-A CTH Q42003 DC-DC (**)
RH13652PWS-1-B CTH Q42003 DC-DC (**)
RH14031PWS-01-A CSU Q42003 No production (**)
- ---------------------------------------- ---------- ------------ -----------------------------
SCHEDULE B
SERVICES FEES
-------------
- ----------------------------------------------------------- -------------------- ------------------------------
DESCRIPTION OF SERVICES TO BE PROVIDED RATES DELIVERABLE
(in U.S. $)
- ----------------------------------------------------------- -------------------- ------------------------------
Physical Design/Layout (**) Gerber Files
- ----------------------------------------------------------- -------------------- ------------------------------
Electrical Design (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Mechanical Design (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Thermal Engineering (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Test Hardware Development/Qual/Debug (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Test Software Development/Enhancement/Debug (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Re-engineering Consulting (**) Per Customer Spec
- ----------------------------------------------------------- -------------------- ------------------------------
Shock testing (to commercial stds.) (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Vibration testing (to shipping stds.) (**)
- ----------------------------------------------------------- -------------------- ------------------------------
PCA cross sectioning (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Ion Chromatography (**)
- ----------------------------------------------------------- -------------------- ------------------------------
X-Ray analysis (Fein Focus) (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Scanning Electron Microscopy (FE-SEM w/EDX) (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Optical Microscopy (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Chamber Services (small) (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Chamber Services (walk-in) (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Surface Insulation Resistance testing (per IPC) (**)
- ----------------------------------------------------------- -------------------- ------------------------------
Conformance Services (Eng. Effort) (**) Per Customer Spec
- ----------------------------------------------------------- -------------------- ------------------------------
Liquid Nitrogen Testing for RH1285BPWS-10C and (**)
RH1285BPWS-10-CSU1
- ----------------------------------------------------------- -------------------- ------------------------------
2
SCHEDULE C
PERFORMANCE METRICS
-------------------
ON-TIME DELIVERY
- ----------------
In each month, an average of (**) of the Products delivered by Celestica to
Customer in such calendar month shall be delivered (as defined in Section 5.1)
On-Time. Celestica shall, on a monthly basis, document in writing to Customer
its compliance with this Performance Metric in a report the format of which
shall be agreed to by Celestica and Customer. If Celestica fails to meet this
Performance Metric on more than (**) during the Term, Customer shall, in
addition to its other rights and remedies hereunder or at law, (**).
QUALITY
- -------
Celestica's quality performance hereunder shall be evaluated on a monthly basis
and, accordingly shall be measured by reference to the aggregate amount of
Products delivered by Celestica to Customer in any month which (i) conform to
the applicable Order; (ii) upon delivery and at all times during Customer's
acceptance testing at the time of delivery of the Products, satisfy all of the
applicable Specifications; and (iii) upon delivery and at all times during
Customer's acceptance testing at the time of delivery of the Products, contain
no latent or patent defects in workmanship as compared with the aggregate amount
of Products delivered to Customer over the same period. If Customer does not
notify Celestica that a Product has failed to satisfy any of the foregoing
criteria within (**) days of delivery of such Product by Celestica to Customer,
such Product shall be deemed to have satisfied all such criteria.
Celestica agrees that the applicable standard against which Celestica's quality
performance shall be measured hereunder shall be a defect rate which does not
exceed a minimum quality standard measured by the number of Defect Parts Per
Million (DPPM) (the "Minimum Quality Standard"). For purposes of this Agreement,
DPPM shall be defined as the number of failures to meet the criteria set out in
the preceding paragraph by the Products delivered to Customer in any month,
divided by the total number of Products delivered by Celestica in such month,
multiplied by 1,000,000 or:
DPPM = (# of defects / # of Products delivered) x 1,000,000
The Minimum Quality Standards for the Products (expressed as DPPM) are set forth
on Schedule A. The Minimum Quality Standard for any Product not included in
Schedule A shall be established by mutual agreement of the parties at the end of
the pilot or prototype phase of such Product. (**).
Celestica agrees to use its reasonable commercial efforts to continuously
improve its quality performance. The Minimum Quality Standards shall be reviewed
on a quarterly basis by the parties.
3
SCHEDULE D
FORM OF ORDERING COMPANY ACKNOWLEDGEMENT
ACKNOWLEDGEMENT
TO: CELESTICA HONG KONG LIMITED ("Celestica")
Reference is made to the Agreement for Manufacture (the "Agreement") dated
_________, 2004 made between Celestica, Dynamo Power System (USA) LLC
("Customer") and C&D Technologies, Inc. Capitalized terms which are defined in
the Agreement and which are used and not otherwise defined herein have the
respective meanings ascribed to them in the Agreement.
WHEREAS the undersigned is an Affiliate of Customer and has been designated
by Customer as an Ordering Company pursuant to Section 2.8 of the Agreement;
AND WHEREAS Article 2.8 of the Agreement provides that an Ordering Company
shall be eligible to order Products and Services from Customer on the terms and
conditions set forth in the Agreement, provided that the conditions in Section
2.3 of the Agreement are met;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the undersigned, and effective as
of the date hereof, the undersigned hereby:
1. covenants and agrees with Customer to be bound by the Agreement, as the
same may be amended from time to time, in the same manner and to the same extent
as if it were an original party thereto, in the capacity of purchaser of
Products and Services in the place and stead of Customer; and
2. acknowledges and agrees that Celestica may exercise against the undersigned
all of its rights and remedies which it has against Customer under the
Agreement.
DATED the ______ day of ____________, ______.
[NAME OF ORDERING COMPANY]
by
---------------------------------------
Name: |X|
Title: |X|
SCHEDULE E
WAREHOUSING TERMS
1.0 SCOPE
1.1 This Schedule is attached to, and forms part of, the agreement for
manufacture dated |X|, 2004 between Celestica Hong Kong Limited, Dynamo Power
System (USA) LLC and C&D Technologies, Inc. (the "Supply Agreement"). The
purpose of this Schedule is to establish the terms and conditions on which
Celestica and its Affiliates will provide warehousing and inventory management
services (the "Warehousing Services") for Customer and Ordering Companies as
provided in the Supply Agreement and in such other circumstances as the parties
may mutually agree. This Agreement initially applies to Warehousing Services at
Celestica's Facility in Suzhou, People's Republic of China (the "Suzhou
Warehouse") and in Laem Chabang, Thailand (the "Thai Warehouse") only. Other
locations may be added by mutual agreement. For the purposes of this Schedule,
where Celestica provides Warehousing Services for an Ordering Company, the term
"Customer" when used herein shall be deemed to refer to such Ordering Company.
1.2 The Warehousing Services to be performed by Celestica hereunder will
apply to the following types of Products, goods, inventory and Material owned by
Customer (collectively, the "Goods") and that are within Celestica's custody or
control:
(a) Goods in respect of which Celestica may, or be required to,
provide such services to Customer pursuant to the terms of the
Supply Agreement, including:
(i) Obsolete Material and Material that is purchased by
Customer under Article 16 of the Supply Agreement;
(ii) Products and other finished goods;
(iii) Lifetime Buy Materials that Celestica stores on
behalf of Customer at Customer's request in
accordance with Section 4.5 of the Supply Agreement;
(iv) any Consigned Material provided by Customer to
Celestica that is intended to be used by Celestica in
the manufacture or repair of Products; and
(b) with Celestica's prior consent, any other goods or items in
respect of which Customer issues an Order for Warehouse
Services to Celestica; and
(c) Goods that are purchased by Customer or an Affiliate of
Customer from an Affiliate of Celestica pursuant to the
Purchase Agreements.
-2-
2.0 DEFINITIONS
Unless otherwise defined herein, capitalized terms used in this
Schedule shall have the respective meanings set forth in the Supply
Agreement. In addition, the following terms shall have the respective
meanings set forth below:
"Damage Condition" has the meaning set out in Section 7.3 of this
Schedule.
"Goods" has the meaning set out in Section 1.2 of this Schedule.
"Order Change" has the meaning set out in Section 9.0 of this Schedule.
"Over Condition" has the meaning set out in Section 7.3 of this
Schedule.
"Purchase Agreements" means the asset purchase agreement dated
September 23, 2004 between Celestica International Inc., Celestica
Corporation, Celestica (Thailand) Limited, Celestica Inc., Dynamo
Acquisition Corp. and C&D Parent and the inventory purchase agreement
dated September 23, 2004 between Celestica Suzhou Technology Ltd.,
Celestica Inc., Dynamo Acquisition Corp. and C&D Parent.
"Shipment" means: (i) where Goods are physically shipped to Celestica,
a shipment of Goods delivered to Celestica and for which Celestica
issues one delivery receipt, and (ii) where no physical transportation
of Goods occurs, a transaction implemented in Celestica's information
system to record the segregation of Goods within the designated
Warehouse.
"Shipment Discrepancy Report" has the meaning set out in Section 7.3 of
this Schedule.
"Short Condition" has the meaning set out in Section 7.3 of this
Schedule.
"Thai Warehouse" has the meaning set out in Section 1.1 of this
Schedule.
"Suzhou Warehouse" has the meaning set out in Section 1.1 of this
Schedule.
"Warehouse" means any warehouse or storage facility owned or operated
by Celestica or its Affiliate, or any third party, at which Celestica
stores Goods for Customer pursuant to this Schedule.
"Warehouse Services" has the meaning set out in Section 1.1 of this
Schedule.
-3-
3.0 STATEMENT OF WORK
Subject to Section 12.0 of this Schedule, during the Term of the Supply
Agreement, Celestica shall perform Warehouse Services as required or permitted
in the Supply Agreement and otherwise as requested by Customer pursuant to
Orders issued to Celestica from time to time, at Warehouse locations specified
in the relevant Orders and approved for such purposes by Celestica. The Suzhou
Warehouse and the Thai Warehouse shall be the Warehouses at which Celestica
initially provides the Warehouse Services and shall be deemed to be approved by
Celestica for the purpose of storing Goods. Notwithstanding anything contained
in this Schedule to the contrary, Celestica may in its discretion decide not to
accept an Order for Warehouse Services.
4.0 MATERIAL HANDLING IN AND OUT OF THE WAREHOUSE
4.1 As part of the Warehouse Services, Celestica will perform any or all of
the following tasks, as specified by the terms of the Supply Agreement or as
required by Customer in the relevant Order: (1) receiving Shipments at the
relevant Warehouse(s), (2) recording the receipt by Celestica of Goods in a
Shipment, and providing to Customer a report of such receipt in accordance with
Section 16.2, (3) placing Goods into, and removing Goods from, storage at the
relevant Warehouse(s), (4) marking, tagging and stenciling the packaging
containing the Goods, (5) loading and unloading of vehicles on which the Goods
are delivered when the carrier of such Goods is not required to perform those
functions pursuant to the relevant delivery terms, (6) preparing bills of lading
and other shipping documents as required, (7) performing a monthly
reconciliation of inventory balances with a designated representative of
Customer, and (8) tendering Goods for delivery to Customer or its carrier upon
termination of the Warehouse Services in respect of such Goods.
4.2 On removal of Goods from the Warehouse(s) upon termination of the
Warehouse Services in respect of such Goods, Celestica shall prepare bills of
lading and other shipping documents as required, in triplicate, all copies of
which shall be signed by a representative of each of Celestica and Customer or
its designated carrier. Celestica shall retain one copy of such shipping
documents, furnish one copy to the carrier, if required, and forward the
original copy to Customer to the address shown in Section 16.2 of this Schedule.
5.0 LOCATION
Customer's Order(s) shall specify the city in which the Warehouse(s) at which
the Warehouse Services will be performed by Celestica from time to time, which
location shall previously have been mutually agreed by both parties. If the
Warehouse Services are to be provided at Warehouse(s) located in multiple
cities, Customer will issue a separate Order for each such city.
6.0 COMPENSATION
Subject to the provisions of this Section 6.0, when Celestica is entitled to, or
requested by Customer to, provide Warehousing Services hereunder, Celestica
shall provide Customer with a quote for the fees to be paid by Customer to
Celestica. If Celestica's quote for such Warehouse Services is acceptable to
Customer, Celestica shall provide such Warehouse Services at the prices agreed
to by the parties. Notwithstanding the foregoing, for a period of 90 days
-4-
commencing on the Effective Date, Celestica shall waive all charges in respect
of Warehouse Services provided by it to Customer at the Suzhou Warehouse and the
Thai Warehouse in respect of any Goods that are purchased by Customer or an
Affiliate of Customer from an Affiliate of Celestica pursuant to the Purchase
Agreements. Warehouse Prices shall be calculated in a manner consistent with the
activity report issued by Celestica pursuant to Section 16.1 of this Schedule.
In the event that Customer requests that Celestica perform services other than
those described in this Schedule, Celestica, on a timely basis, shall submit a
quote to Customer for the price to be charged to Customer for the requested
services. If such quote is acceptable to Customer, Customer shall issue to
Celestica an Order or Order Change, as applicable, and Celestica shall perform
such additional services at the price stated in Celestica's quote.
7.0 CARE AND CUSTODY OF PROPERTY AT CELESTICA FACILITIES
7.1 Notwithstanding anything to the contrary, but subject to Section 18 of
this Schedule, Customer shall at all times during Celestica's performance of the
Warehouse Services have title to and bear risk of loss or damage to Goods in
respect of which Celestica performs Warehouse Services.
7.2 Celestica's obligation to perform Warehouse Services hereunder in
respect of any particular Goods and its entitlement for compensation pursuant
to Section 7.0 of this Schedule shall commence:
(a) if the relevant Goods are not already in Celestica's physical
custody, upon delivery of the Goods to the specified Warehouse
by Celestica or its carrier (at Customer's request) or by
Customer or its specified carrier, as the case may be;
b) if the relevant Goods have been, or are required to be,
purchased by Customer pursuant to Article 16 of the Supply
Agreement and are already in Celestica's physical custody, on
the date on which such Goods are deemed to be Obsolete
Material or are purchased by Customer, as applicable, under
the Supply Agreement; or
(c) with respect to any other Goods already in Celestica's
physical possession, upon receipt by Celestica of the Order
requesting the Warehouse Services;
and shall terminate in respect of any particular item of Goods on the earlier
of:
(x) the expiration or termination of the Supply Agreement
(subject to Section 13.0 of this Schedule);
(y) the delivery of the relevant Goods to Customer or a
third party designated by Customer, in accordance
with Customer's direction; and
(z) the time at which Celestica purchases the relevant
Goods from Customer or removes the relevant Goods
from storage for the purposes of incorporating such
Goods in Products which it manufactures or repairs
for Customer under the Supply Agreement.
-5-
7.3 If, when the Goods are delivered to Celestica pursuant to Section 8.2
(a), Celestica determines that damage has occurred to the external packaging of
the Goods prior to its receipt thereof (a "Damage Condition"), or the quantity
in the Shipment is higher or lower than the quantity specified in the shipping
documentation (an "Over Condition" and a "Short Condition", respectively),
Celestica shall promptly note the Damage Condition, Over Condition or Short
Condition, as the case may be, on all copies of the delivery receipt and, in the
case of a Damage Condition, shall request the delivery carrier to inspect the
damaged Goods and to provide an inspection report or waiver of inspection.
Celestica shall thereupon notify Customer by issuing a shipment discrepancy
report in the form prepared by Customer (a "Shipment Discrepancy Report")
pursuant to Section 16 of this Schedule.
7.4 Upon the expiration or termination of the Supply Agreement, Celestica
will co-operate with Customer to ensure an orderly transition of the Warehouse
Services to Customer or any third party designated by Customer. Such cooperation
shall include, without limitation, reasonable packing and preparation for
shipment of any Goods to be removed from a Warehouse and the provision of
reports and other documentation reasonably necessary for the orderly transition
of the Warehouse Services, and the parties shall agree to any additional cost to
be paid by Customer in respect of the transition of such Warehouse Services.
Except to the extent necessary in order to comply with Celestica's
confidentiality or security requirements at the relevant Warehouse in which
Goods are stored, Celestica shall not interfere with or hinder the transfer or
transportation of Goods by Customer upon termination of the Warehouse Services
in respect of such Goods.
8.0 TRANSFER OF GOODS
Celestica shall not encumber, lease, transfer or otherwise dispose of the Goods,
except (i) as authorized by Customer, or (ii) as required pursuant to the Supply
Agreement. Except to the extent necessary in order to comply with Celestica's
confidentiality or security requirements at the relevant Warehouse in which
Goods are stored, Celestica shall not interfere with or hinder the transfer or
transportation of Goods by Customer.
9.0 CHANGES
Customer may at any time during Celestica's performance of the Warehouse
Services require additions, deductions or deviations (all hereinafter referred
to as a "Change") from the Warehouse Services, by issuing a written Change Order
to Celestica. Celestica shall not implement any Change, nor shall Celestica be
entitled to any compensation for Warehouse Services performed pursuant to or in
contemplation of a Change, unless such Change was made pursuant to a Change
Order issued by Customer and accepted by Celestica.
10.0 DELIVERY
Goods shall be delivered from Customer to the relevant Warehouse DDP (Incoterms
2000) and shall be shipped from the relevant Warehouse to Customer EXW
(Incoterms 2000) the relevant Warehouse.
-6-
11.0 FIRE INSURANCE INSPECTION
Subject to compliance with Celestica's safety and confidentiality requirements,
and upon reasonable notice to Celestica, Celestica shall allow Customer's
representatives and representatives of Customer's insurance carrier to inspect
the Warehouse(s) at which Celestica performs the Warehouse Services for Customer
during normal business hours for fire, flood and other hazards to the Goods.
12.0 HOLDOVER MATERIAL
Notwithstanding the termination of the Warehouse Services with respect to any
particular item of Goods pursuant to Section 7.2, Celestica shall, at Customer's
request, continue to hold the Goods in the Warehouse(s) on the date of such
termination, at the then current Warehouse Prices and upon the other terms and
conditions of this Schedule, for an additional period not to exceed sixty (60)
days after the date of termination of the Warehouse Services Agreement. Customer
shall arrange for removal of all Goods at Customer's cost by the end of such
additional period. If Customer has not arranged for removal of all Goods by the
end of such additional period, Celestica may arrange for delivery of the Goods
to Customer at Customer's cost.
13.0 INVENTORY CONTROL SYSTEM
As part of the Warehouse Services, Celestica shall utilize an inventory control
system to monitor and manage inventory balances, daily activity and the physical
location and status of Goods.
14.0 STORAGE
Except upon termination of the Warehouse Services in respect of particular Goods
pursuant to Section 7.2 of this Schedule, Goods shall not be removed from the
Warehouse to which they were originally delivered without Customer's written
consent, unless (i) such Goods are being moved to a Warehouse located in the
same city as the Warehouse in which they are located at such time, or (ii)
Celestica determines that such removal is necessary to protect the Goods from
damage or loss. Unless removal of Goods from one Warehouse to another Warehouse
is at Customer's request (for reasons other than the protection of such Goods
against damage or loss), any such removal of and return Goods shall be at
Celestica's sole cost and expense.
15.0 WAREHOUSE QUALITY PROCESS
Celestica will adhere to practices and standards established by the
International Standards Organization (ISO) and for which it has been qualified
at the applicable Warehouse(s). Celestica shall use a commercially reasonable
standard of care in performing the Warehouse Services. From time to time upon
Customer's request and upon reasonable prior notice, representatives of
Celestica will meet with Customer's representatives to review Customer's
assessment of Celestica's performance of the Warehouse Services under this
Schedule. Where necessary in order to ensure the safety and/or confidentiality
of the Goods, Celestica will limit access to such Goods to such personnel as it
deems necessary, in its sole discretion, for the provision of the Warehouse
Services.
-7-
16.0 REPORTS
16.1 Celestica shall, at the end of each month, submit an activity report to
Customer's designated representative showing monthly transactions in and out of
the Warehouse(s) and on-hand inventory balances of the Goods in storage.
16.2 On a weekly basis, Celestica shall deliver to Customer a report listing
all Shipments received for each Product in the previous week, at the address
below:
|X|
___employee position responsible)___
___(complete address)___
When Celestica receives a Shipment in an Over Condition, Short Condition or
Damaged Condition, it shall issue to Customer a Shipment Discrepancy Report
within forty-eight (48) hours after delivery of the Shipment to Celestica. The
Shipment Discrepancy Report shall be delivered to |X|, c/o ___(title)___
Supervisor, P. O. ___(complete address)___, ___(department or title name )___
and shall be accompanied by:
(a) a photostatic copy of the warehouse receipt; and
(b) a copy of the carrier's freight bill of lading.
17.0 INSURANCE
Customer will, at its sole cost and expense, during the Term of the Supply
Agreement, maintain commercial general liability insurance in respect of the
Goods in respect of which Celestica performs the Warehouse Services for Customer
hereunder.
18.0 INDEMNITY
Customer will indemnify and hold harmless Celestica from and against any and all
Losses suffered or incurred by Celestica as a result of or arising directly or
indirectly out of or in connection with any damage caused by any Goods in
respect of which Celestica performs the Warehouse Services for Customer
hereunder, except where such Losses arise from the negligence or wilful
misconduct of Celestica, its agents, subcontractors, employees or invitees.
SCHEDULE F
INTIAL PRICES
-------------
[SEE EXCEL SPREADSHEET]
"(**)" indicates portion deleted pursuant to the Company's application
requesting grant of confidential treatment.
- ----------------------------------------------------------------------------------------------
Latest
P/N Plant BOM Material MVA
Updtae Cost pricing Total Price
- ----------------------------------------------------------------------------------------------
0732078304VES-04-A CSU Q32004 (**) (**) (**)
0732079503UVS-08-A CSU Q32004 (**) (**) (**)
073-20805-06 CSU Q32004 (**) (**) (**)
0732081301VES-04-A CSU Q32004 (**) (**) (**)
073-20821-50 CSU Q32004 (**) (**) (**)
0732082904VES-07-A CSU Q32004 (**) (**) (**)
073-20833-03-N-A CTH Q32004 (**) (**) (**)
073-20834-03-M-A CTH Q32004 (**) (**) (**)
0732084003VES-01-A CSU Q32004 (**) (**) (**)
073-20849-05-D-A CTH Q32004 (**) (**) (**)
073-20849-06-A-A CTH Q32004 (**) (**) (**)
0732085160VES-05-A CSU Q32004 (**) (**) (**)
073-20854-03 CSU Q32004 (**) (**) (**)
0732085804VES-05-A CSU Q32004 (**) (**) (**)
0732087201VES-04-A CSU Q32004 (**) (**) (**)
123840CFRUPWS-60-B CTH Q32004 (**) (**) (**)
123840CPWS-60-C CTH Q32004 (**) (**) (**)
123840CPWS-60-D CTH Q32004 (**) (**) (**)
125446CPWS-13-A CTH Q32004 (**) (**) (**)
1300530EZS-02-A CSU Q32004 (**) (**) (**)
1301193EZS-02-A CSU Q32004 (**) (**) (**)
1301341EZS-04-A CSU Q32004 (**) (**) (**)
1301345EZS-04-A CSU Q32004 (**) (**) (**)
1301423EZS-04-A CSU Q32004 (**) (**) (**)
1301470EZS-04-A CSU Q32004 (**) (**) (**)
1301682EZS-02-A CSU Q32004 (**) (**) (**)
1301684EZS-01-A CSU Q32004 (**) (**) (**)
1301748EZS-04-A CSU Q32004 (**) (**) (**)
1301804EZS-03-A CSU Q32004 (**) (**) (**)
1301918EZS-03-A CSU Q32004 (**) (**) (**)
1301961EZS-01-A CSU Q32004 (**) (**) (**)
1301967EZS-02-A CSU Q32004 (**) (**) (**)
1302629EZS-04-A CSU Q32004 (**) (**) (**)
1302696EZS-04-A CSU Q32004 (**) (**) (**)
1302949EZS-02-A CSU Q32004 (**) (**) (**)
1303107EZS-01-A CSU Q32004 (**) (**) (**)
1303113EZS-02-A CSU Q32004 (**) (**) (**)
1303154EZS-01-A CSU Q32004 (**) (**) (**)
1303177EZS-02-A CSU Q32004 (**) (**) (**)
1303193EZS-03-A CSU Q32004 (**) (**) (**)
1303197EZS-04-A CSU Q32004 (**) (**) (**)
1303239EZS-01-A CSU Q32004 (**) (**) (**)
1303275EZS-02-A CSU Q32004 (**) (**) (**)
1303281EZS-02-A CSU Q32004 (**) (**) (**)
1303282EZS-03-A CSU Q32004 (**) (**) (**)
1303298EZS-01-A CSU Q32004 (**) (**) (**)
1303299EZS-01-A CSU Q32004 (**) (**) (**)
1303318EZS-01-A CSU Q32004 (**) (**) (**)
1303357EZS-04-A CSU Q32004 (**) (**) (**)
1303365EZS-03-A CSU Q32004 (**) (**) (**)
1303393EZS-02-A CSU Q32004 (**) (**) (**)
1303476EZS-03-A CSU Q32004 (**) (**) (**)
1304172EZS-06-A CSU Q32004 (**) (**) (**)
1306355EZS-03-A CSU Q32004 (**) (**) (**)
1306381EZS-04-A CSU Q32004 (**) (**) (**)
1310693EZS-01-A CSU Q32004 (**) (**) (**)
1312839EZS-02-A CSU Q32004 (**) (**) (**)
248480CVES-01-A CSU Q32004 (**) (**) (**)
259566CEZS-01-A CSU Q32004 (**) (**) (**)
271944CEZS-06-A CSU Q32004 (**) (**) (**)
278155CEZS-01-A CSU Q32004 (**) (**) (**)
278161CEZS-01-A CSU Q32004 (**) (**) (**)
278180CEZS-01-A CSU Q32004 (**) (**) (**)
278340CEZS-01-A CSU Q32004 (**) (**) (**)
278360CEZS-06-A CSU Q32004 (**) (**) (**)
278400CEZS-01-A CSU Q32004 (**) (**) (**)
278420CEZS-01-A CSU Q32004 (**) (**) (**)
278440CEZS-01-A CSU Q32004 (**) (**) (**)
279560CEZS-01-A CSU Q32004 (**) (**) (**)
283760CEZS-01-A CSU Q32004 (**) (**) (**)
285122CVES-C-B CTH Q32004 (**) (**) (**)
288291CEZS-03-A CSU Q32004 (**) (**) (**)
288560CEZS-01-A CSU Q32004 (**) (**) (**)
288660CEZS-01-A CSU Q32004 (**) (**) (**)
288680CEZS-01-A CSU Q32004 (**) (**) (**)
289700CEZS-01-A CSU Q32004 (**) (**) (**)
290441CEZS-01-A CSU Q32004 (**) (**) (**)
290500CEZS-01-A CSU Q32004 (**) (**) (**)
290520CEZS-01-A CSU Q32004 (**) (**) (**)
290541CEZS-01-A CSU Q32004 (**) (**) (**)
300221CVES CSU Q32004 (**) (**) (**)
333300CEZS-01-A CSU Q32004 (**) (**) (**)
341000303PBS-02-A CSU Q32004 (**) (**) (**)
3N02346010CES-02-A CSU Q32004 (**) (**) (**)
43063CFRUPWS-4-D CTH Q32004 (**) (**) (**)
43063CPWS-4-G CTH Q32004 (**) (**) (**)
47243CFRUPWS-19-1A CTH Q32004 (**) (**) (**)
47243CPWS-19-1A CTH Q32004 (**) (**) (**)
AP0927PWS CSU Q32004 (**) (**) (**)
AP0979CPWS-01-A CSU Q32004 (**) (**) (**)
AP0979FRUCPWS-01-A CSU Q32004 (**) (**) (**)
AP101413PWS-03-D CSU Q32004 (**) (**) (**)
AP1018APWS-01-A CSU Q32004 (**) (**) (**)
AP1019APWS-01-A CSU Q32004 (**) (**) (**)
AP10206PWS-02-A CSU Q32004 (**) (**) (**)
AP10214PWS CSU Q32004 (**) (**) (**)
AP10248PWS-01-B CSU Q32004 (**) (**) (**)
AP102614PWS-01-B CSU Q32004 (**) (**) (**)
AP1045BPWS-01-A CSU Q32004 (**) (**) (**)
AP114314PWS-01-A CSU Q32004 (**) (**) (**)
AP1169FRUAPWS CSU Q32004 (**) (**) (**)
AP1183CPWS-03-B CSU Q32004 (**) (**) (**)
AP1190CPWS-01-A CSU Q32004 (**) (**) (**)
AP1190FRUCPWS-01-A CSU Q32004 (**) (**) (**)
AP11913PWS-01-B CSU Q32004 (**) (**) (**)
AP1191FRU3PWS-01-B CSU Q32004 (**) (**) (**)
AP1193APWS-01-A CSU Q32004 (**) (**) (**)
AP1195FRUPWS CSU Q32004 (**) (**) (**)
AP1204FRUAPWS CSU Q32004 (**) (**) (**)
AP1244FRUBPWS CSU Q32004 (**) (**) (**)
AP1255FRUAPWS CSU Q32004 (**) (**) (**)
EHS0200150C0-4-1A CSU Q32004 (**) (**) (**)
EHS020015BD0-3-2A CSU Q32004 (**) (**) (**)
EHS0200180C0-2-1C CSU Q32004 (**) (**) (**)
EHS0200180D0-2PWS CSU Q32004 (**) (**) (**)
HEQB124812-2PWS CSU Q32004 (**) (**) (**)
HHS0045200B0-2-3A CSU Q32004 (**) (**) (**)
HHS004520AB0-1-4A CSU Q32004 (**) (**) (**)
JC015416PWS-01-A CSU Q32004 (**) (**) (**)
QHS0121200D0-2PWS CSU Q32004 (**) (**) (**)
QHS0250330B0-1PWS CSU Q32004 (**) (**) (**)
QHS0250330C0-1-1A CSU Q32004 (**) (**) (**)
QHS0400250C0-1-3A CSU Q32004 (**) (**) (**)
QHS040025AC0-1-1A CSU Q32004 (**) (**) (**)
QHS0500150D0-2PWS CSU Q32004 (**) (**) (**)
QHS0550120B0-1-1A CSU Q32004 (**) (**) (**)
RH1264FRUBPWS CSU Q32004 (**) (**) (**)
RH1285BPWS-10-C CTH Q32004 (**) (**) (**)
RH1285BPWS-10-CSU1 CTH Q32004 (**) (**) (**)
RH13053PWS CSU Q32004 (**) (**) (**)
RH1323APWS-10-A CTH Q32004 (**) (**) (**)
RH1323APWS-9-B CTH Q32004 (**) (**) (**)
RH1323APWS-9-CSU1 CTH Q32004 (**) (**) (**)
RH13287PWS-5-C CTH Q32004 (**) (**) (**)
RH13287PWS-7-A CTH Q32004 (**) (**) (**)
RH13425PWS-5-C CTH Q32004 (**) (**) (**)
RH13425PWS-7-A CTH Q32004 (**) (**) (**)
RH13532PWS-02-A CSU Q32004 (**) (**) (**)
RH13543PWS CSU Q32004 (**) (**) (**)
RH13622PWS-7-C CTH Q32004 (**) (**) (**)
RH13622PWS-9-A CTH Q32004 (**) (**) (**)
RH13632PWS-5-C CTH Q32004 (**) (**) (**)
RH13632PWS-7-A CTH Q32004 (**) (**) (**)
RH13652PWS-6-C CTH Q32004 (**) (**) (**)
RH13652PWS-8-A CTH Q32004 (**) (**) (**)
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