EXHIBIT 10.1
***CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS
CORPORATE PURCHASE AGREEMENT
BETWEEN:
BUYER:
Name: HEWLETT PACKARD CORPORATION
Address: 3000 Hanover St., Palo Alto, California 94304
Contact Name: Richard Gentilini Telephone Number: [...* * *...]
AND:
SELLER:
Name: Vixel Corporation
Address: 11911 North Creek Parkway South, Bothell WA 98011
Contact Name: Kurtis Adams Telephone Number: [...* * *...]
FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE
HEREBY ACKNOWLEDGED, BUYER AND SELLER HEREBY AGREE AS FOLLOWS:
SELLER AGREES TO PROVIDE BUYER with the Products, Services, Spares and/or other
materials specifically identified in properly executed schedules of product
deliverables at the applicable Effective Prices and in accordance with the terms
and conditions of this Corporate Purchasing Agreement (the "Agreement") between
the parties, which Agreement consists of (i) this signature page; (ii) the
General Terms for Purchasing, including any amendments thereto; (iii) any
Supplemental Terms of Agreement; and (iv) all Exhibits.
PRODUCTS & SERVICES: The Products purchased under the Agreement shall be more
fully described in the Product Pricing Schedule (Exhibit F) (containing Product
part numbers, descriptions, initial unit prices, and lead-times) as updated from
time to time. The Services acquired under this Agreement shall be more fully
described in the Service Requirements (Exhibit J). Whereas the parties may agree
to purchase other products, spares, and/or services, such products, spares, and/
or services may be added from time to time during the term of the Agreement in a
properly executed Addendum.
PRICES / CHARGES: The prices, fees, charges, and discounts ("Prices") for
Deliverables shall be initially set forth in a Product Pricing Schedule (Exhibit
F). Whereas the parties may agree, from time to time, to update Prices for any
Deliverable, such updated Prices shall be set forth in properly executed Product
Pricing Schedules and shall be the price at which Buyer is entitled to purchase
such Deliverables from Seller ("Effective Price") for the period of time
specified therein ("Pricing Period"). The Effective Price for any Deliverable,
shall be that which is contained in the most recently executed Product Pricing
Schedule.
AGREEMENT TERM: EFFECTIVE DATE: June 24, 2002
END DATE (OF INITIAL TERM): June 24, 2005
Notwithstanding anything to the contrary, the Agreement is not a requirements
contract and does not obligate Buyer to purchase any minimum quantity of
Deliverables but only establishes the terms and conditions for such purchases if
and when Buyer submits Orders in accordance with the Agreement. Capitalized
terms used on this signature page that are defined elsewhere in the Agreement
and shall have the meaning as there defined.
IN WITNESS WHEREOF, THE AUTHORIZED REPRESENTATIVES OF THE PARTIES HAVE EXECUTED
THIS AGREEMENT WHICH SHALL BECOME EFFECTIVE AS OF THE EFFECTIVE DATE WRITTEN
ABOVE.
SELLER: VIXEL CORPORATION, INC. BUYER: HEWLETT PACKARD CORPORATION
By: /S/ Kurtis L. Adams By: /S/ Richard Gentilini
------------------------- ----------------------------------
(Authorized Signature) (Authorized Signature)
Name: Kurtis L. Adams Name: Richard Gentilini
(Typed or Printed) (Typed or Printed)
Division: Division: Network Storage Solutions
(Optional) (If Corporate, Identify Commodity
Area - If Site, Identify Location)
Date: May 9, 2003 Date: May 9, 2003
CORPORATE PURCHASING AGREEMENT
GENERAL TERMS - FINISHED GOODS
The following general terms and conditions ("General Terms") and any amendments
hereto form part of the Corporate Purchase Agreement (the "Agreement") between
Buyer and Seller (collectively, the "parties") as identified on the signature
page of the Agreement. Subject to the provisions of these General Terms, Buyer
may elect to purchase goods, materials and/or services (individually or
collectively referred to as "Deliverables") from Seller. The Effective Date and
the End Date of the Agreement together with the contact persons of the parties
and their respective addresses for notice, are also identified on the signature
page of the Agreement.
CPA# 1312-11502 HP CONFIDENTIAL PAGE 1
1.0 PURPOSE
It is intended by the parties that the provisions of the Agreement,
including these General Terms, shall govern any purchase and sale of
the Deliverables including, as applicable, the Products, Spares,
Services, or other materials set forth in a Schedule of Deliverables
forming part of the Agreement.
2.0 DEFINITIONS
In addition to terms defined elsewhere in the Agreement, capitalized
terms used herein shall have the meanings set forth below:
2.1 "Affiliate" means, with respect to Buyer or Seller, any other legal
entity controlling, controlled by, or under the common control with
Buyer or Seller. As used in this definition, the term "control" means
the possession, directly or indirectly or the power to direct, or
cause the direction of the management and policy of the controlled
entity. Where solely for the purposes of buying Product on behalf of
Buyer, and subject to Seller's credit approval, "Affiliate" shall also
mean (i) any OEM subcontractor of Buyer buying on behalf of Buyer, and
(ii) any subcontractor or contractor of Buyer buying on behalf of
Buyer, and Sections 3.0 (Orders) and 7.0 (Payment) of this agreement
shall apply. For the avoidance of doubt, it is understood that such
purchasing entities ("Distribution Affiliates") shall not be deemed
Affiliates for the purpose of the indemnities by Seller in Section 6
or any other obligations of Seller apart from the provisions of
Sections 3.0 (Orders) and 7.0 (Payment). Prior to acceptance as a
Distribution Affiliate, such entity must enroll with Seller and HP by
signing a separate agreement with Seller and shall be bound by all
provisions of such agreement.
2.2 "Attachments" means any document or exhibit thereof that is mutually
agreed to by the parties and is used to provide additional information
and/or different terms and conditions relating to the Agreement.
Attachments may include, but is not limited to schedules, amendments,
addenda, and any other document that is mutually agreed upon by the
parties and incorporates by reference the General Terms for
Purchasing.
2.3 "Business Day" means a day on which commercial banks and foreign
exchange markets settle payments in New York City, U.S.A.
2.4 "Business Continuity" - shall mean continuation of the critical
business functions of the business so that goods and services shall
continue to be provided to Buyer without interruption or essential
change.
2.5 "Business Continuity Plan" - Shall mean a plan that sets out the
process for developing advanced arrangements and procedures to enable
an organization to respond to any event (whether foreseeable or not)
in such a manner that Business Continuity is achieved.
2.6 "Buyer Furnished Items" means any raw materials, components, tools,
products, equipment, documentation, services, and/or any other items
to be provided by Buyer to Seller including, but not limited to any
buyer-owned materials identified in any applicable Ownership of
Materials Exhibit (Exhibit B), Order, or in any other Attachment
forming part of the Agreement.
2.7 "Buyer Products" means those Products manufactured, marketed,
distributed and/or otherwise made available by Buyer to Buyer's
customers, which may include hardware and software proprietary to
Buyer and/or Buyer's suppliers, including, without limitation, the
Products acquired from Seller under this Agreement.
2.8 "Change Order" means any written document or any written or electronic
Orders prepared, properly authorized, and issued by Buyer and accepted
by Seller, to identify changes to an existing Order previously
accepted by Seller for Deliverables. A Change Order will typically
contain the Applicable Purchase Order number or electronic Order
number affected, a Change Order number, and a Change Order date
signifying the effective date of the change(s). The Change Order may
include changes that affect, but are not necessarily limited to (i)
rescheduling item(s) Delivery
CPA# 1312-11502 HP CONFIDENTIAL PAGE 2
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with the commission. Confidential treatment has been requested with respect to
the omitted portions.
Date(s), (ii) adding and/or canceling item(s) in whole or in part,
and/or (iii) changes to Buyer designated destination point(s).
2.9 "Code" means computer programming instructions including, without
limitation, machine-readable computer programming instructions. Unless
specifically stated otherwise, "Code" shall include all Updates and
Enhancements thereto.
2.10 "Confidential Information" means tangible and intangible nonpublic
information that one party discloses to the other and designates as
confidential or which, under the circumstances surrounding such
disclosure, ought to be treated as confidential. "Confidential
Information" includes, but is not limited to, any and all of the
parties' product information relating to design, functionality,
pricing, manufacturing, or marketing; the terms and conditions of any
proposed or actual agreement between the parties; either party's
business policies, practices or trade secrets; and the information of
others that is received by either party under an obligation of
confidentiality.
2.11 "Cost Impact / Obsolescence Event" or "Event" means notification by
Buyer to Seller, [...* * *...], of a [...* * *...] The date of the
Event is deemed to be the date on which Buyer provides any such
notification to Seller.
2.12 "Cover Costs" consist of cost of [...* * *...], cost of [...* * *...]
including without limitation providing [...* * *...], as well as
[...* * *...] including but not limited to [...* * *...] Cover Costs
will not include [...* * *...]
2.13 "Default" means, with respect to Buyer, (i) Buyer's failure to comply
with any material provision of this Agreement or any Order issued
hereunder ("breach"), and, in the case of a breach which is capable of
remedy, such failure continues unremedied for a period [...* * *...]
calendar days of notification of said breach; provided, delays in
delivery are not subject to the [...* * *...]-day cure period herein;
or (ii) Buyer becomes insolvent, becomes subject to any bankruptcy
proceeding, makes an assignment for the benefit of creditors, or a
receiver or similar officer is appointed to take charge of all or a
part of such party's assets and such condition is not cured within
[...* * *...] calendar days; and,
With respect to Seller, (i) Seller's failure to comply with any
material provision of the Agreement, or of any Order issued hereunder,
and in the case of a breach which is capable of remedy, Seller's
failure to remedy same within [...* * *...] calendar days of
notification of said breach; provided, Seller's failure to deliver
Product On Time is not subject to a [...* * *...]-calendar day cure
period; (ii) Seller becomes insolvent, becomes subject to any
bankruptcy proceeding or makes an assignment for the benefit of
creditors, or a receiver or similar officer is appointed to take
charge of all or a part of Seller's assets and such condition is not
cured within [...* * *...] calendar days; (iii) Seller assigns or
attempts to assign, or subcontracts or attempts to subcontract, any or
all of its rights or obligations under this Agreement or any Orders
issued hereunder to a third party, other than a legal successor or
merger, without Buyer's prior written approval.
2.14 "Defaulting Party" shall mean any party who fails to perform any
contractual obligation or duty in connection with the terms and
conditions set forth in this Agreement.
2.15 "Defective Product" shall mean deliverables that do not conform to the
Purchase Specifications (Exhibit D) or that contain any defect in
materials or workmanship.
2.16 "Deliverables" means any goods, services, products, or other materials
to be provided by Seller in accordance with the Agreement and/or any
applicable Orders issued hereunder including, but not limited to,
those set forth in any applicable Service Requirements (Exhibit J),
Product Pricing Schedule (Exhibit F), or contained in any other
Attachment to the Agreement and/or in any applicable Orders issued
hereunder.
2.17 "Delivery Date" or "On-Dock Date" means; (i) the date stipulated on
Buyer's Order for the delivery of the specified Deliverables during
normal business hours and days to the Delivery Site designated by
Buyer; and (ii) the date stipulated on Buyer's Order for the
performance of Services to be completed by Seller as specified under
Buyer's Order.
CPA# 1312-11502 HP CONFIDENTIAL PAGE 3
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
2.18 "Enhancements" means changes or additions, other than Updates, to Code
and related documentation, including all new releases, that improve
functions, add new functions, or improve performance by changes in
system, design, or coding.
2.19 "Electronic Transmission" means the transmission of data between Buyer
and Seller in an electronic format including, but not limited to,
industry-standard Electronic Data Interchange techniques ("EDI");
Electronic Funds Transfer ("EFT"); Facsimile ("fax"); Electronic Mail
(email), World Wide Web ("WWW"); and Electronic File Exchanges of any
transaction set ("Electronic Interchanges"). Common Electronic
Transmissions are electronic orders, credit card purchases or orders,
and orders via the internet.
2.20 "Epidemic Failure" means an excessive level of unit failures that are
caused by the same component failure or defect, provided that such
failure or defect is attributable to Seller.
2.21 "Excess Material" means finished goods, work in process, Unique Parts
(as defined below), non-active industry standard components and
material that is obsolete or excess to Buyer's future Product
requirements that has been purchased by Seller in order to fulfill
Buyer's most current forecast and which the Parties reasonably
determines cannot be cancelled, returned, sold or otherwise consumed.
2.22 "Formal Claim" means Seller's claim for any costs or expenses relating
to Excess Material.
2.23 "Hazardous Materials" means any hazardous substance, hazardous waste,
hazardous chemical, hazardous air pollutant, pesticide, or other
substance identified as hazardous, infectious, radioactive or toxic
under any federal, state or local laws, regulations, or standards
pertaining to the protection of human health or safety, wildlife or
the environment. Hazardous Materials shall include, without
limitation, all substances identified as hazardous chemicals by
California Occupational Safety and Health Act (hereinafter referred to
as Cal-OSHA) and under the federal Occupational Safety and Health Act
(hereinafter referred to as OSHA) and all substances identified as
hazardous wastes under the Resource Conservation and Recovery Act or
any comparable state statutes, regulations or standards.
2.24 "Lead-Time" means the period of time extending from the date listed on
Order to the Delivery Date for Products, Spares and/or Services,
[...* * *...]
2.25 "Like New Condition" means refurbished to the latest approved revision
to meet all applicable electrical, mechanical, firmware and cosmetic
specifications and Engineering documentation, including the
replacement of damaged or missing non-functioning parts.
2.26 "Materials" means (i) computer hardware, (ii) any written information,
Code, or documentation, including any machine-readable information,
Code, or documentation recorded on tangible media, or (iii) any
combination thereof provided, pursuant to the Agreement, to a party
for the sole purpose of enabling performance of the obligations
contained herein. "Materials" does not include Products, or Spares, or
Services, or intangible Confidential Information.
2.27 "Order(s)" means, collectively, any written Purchase Order, any
electronic order or electronic purchase order employing EDI
techniques, any industry standard EDI order, any telex or facsimile
order or purchase order, any telephonic order or purchase order
subsequently confirmed by Buyer in writing or by some electronic means
capable of printing a hard copy, any other written or electronic
order, and any internet orders employing the Internet and industry
standard eCommerce techniques or EDI techniques; that are prepared,
properly authorized and issued by Buyer for the purchase of Products
or Services. "Orders" may be accepted by Seller in writing,
electronically in the manner prescribed in subsection 3.3 below, or in
the manner otherwise prescribed by Buyer (including, as applicable, by
EDI means, industry standard eCommerce techniques, or by facsimile
transmission), or by commencement of performance of Services or by
delivery of Products.
2.28 "Product(s)" means goods, materials, components, or products that are
either created, manufactured, distributed, or otherwise made available
by Seller to Buyer for purchase by Buyer pursuant to the terms and
conditions of the Agreement and any applicable Order hereto. The
Products shall include any requisite and incidental materials,
packaging documentation included in Purchase Specifications (Exhibit
D), Code, Software, and any other reasonably
CPA# 1312-11502 HP CONFIDENTIAL PAGE 4
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
related Seller Furnished Items that are needful due to the nature of
the Product. Additional Products, Spares, and / Services may be added
to this Agreement with a properly executed Addendum.
2.29 "Product Pricing Schedule" means, with respect to the purchase of
Products, any written instrument executed by one party and mutually
agreed to by the other party for purpose of (i) updating the part
numbers for the Products identified therein [...* * *...] Any purchase
by Buyer of the Products [...* * *...] shall be governed by the terms
and conditions of [...* * *...] To be valid, a Product Pricing
Schedule shall contain, at minimum, [...* * *...] The Product Pricing
Schedule is attached to this Agreement as Exhibit F.
2.30 "Proprietary Rights" means all current and future patents, mask works,
copyrights, trade secrets, know-how and all other intellectual
property rights, including all applications, continuations and
registrations with respect thereto.
2.31 "Purchase Order" means a written document prepared by Buyer and
accepted by Seller to identify Products, Spares and/or Services to be
furnished by Seller pursuant to the terms and conditions of the
Agreement. Such Purchase Order will typically contain: (i) Purchase
Order Number, (ii) Purchase Order date, (iii) Purchase Order Item No.
for each item ordered, (iv) quantity of each Product, Spare or Service
ordered, (v) Buyer and/or Seller part number, (vi) revision designator
for each Product/Spare, (vii) unit price of each item, (viii) Delivery
Date of each item, and (ix) Buyer's designated destination point for
each item.
2.32 "RMA" means a Return Material Authorization number assigned by Seller
for a shipment of Products and/or Spares being returned by Buyer to
Seller.
2.33 "Seller Furnished Items" means any raw materials, components, tools,
products, equipment, documentation, services, technical support,
and/or any other items that may be provided by Seller to Buyer
including, but not limited to any seller-owned materials identified in
any applicable Ownership of Materials Exhibit (Exhibit B), Order, or
in any other document forming part of the Agreement.
2.34 "Seller Owned Inventory" means any raw materials, sub-assemblies,
finished goods inventory over which the Seller will have financial
ownership of the inventory/products until such time the inventory is
"pulled" in order to fulfill replenishment needs.
2.35 "Services" or "Seller's Services" means the services or work made
available to Buyer by Seller and which are described, identified, or
listed in any attached or subsequently executed Services Requirements
(Exhibit J) that specifically references the Agreement, or in any
other applicable Exhibit, Addendum, Schedule or Attachment forming
part of the Agreement or forming part of any applicable Orders
thereunder.
2.36 "Software" means (i) the software which is a component of, supplied
with, or bundled with, the Products, Spares or Services (whether in
firmware or on magnetic, optical or other media) and (ii) the end user
documentation for such software, including all Updates and
Enhancements to such software and documentation.
2.37 "Spare(s)" means any replacement parts/components, assemblies, or
sub-assemblies for the Product(s).
2.38 "Specifications" (i) the specifications for the specific Product,
Spares, and/or Services set forth in the Purchase Specifications
(Exhibit D); and (ii) the General Quality Requirements set forth under
a Quality Plan (Exhibit H).
2.39 "Technical Data" shall include, but not be limited to, Buyer furnished
items, Buyer products, Confidential Information, Code, Deliverables,
Materials, Products, Software, Spares or Services.
2.40 "Unique Parts" means custom material specifically and solely designed
for Buyer's Product ([...* * *...]) which cannot be reused, reworked,
returned, sold or otherwise incorporated into any other products
manufactured by Seller.
2.41 "Updates" means any modifications or changes, other than Enhancements,
to Materials, Products, or Spares for purposes of correcting errors,
such as bug fixes or other incidental corrections.
CPA# 1312-11502 HP CONFIDENTIAL PAGE 5
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
3.0 ORDERS
3.1 Buyer may purchase Product(s), Spares and/or Services from Seller by
issuing properly authorized Orders to Seller. All such Orders shall
set forth the following items: quantity, price, delivery date, part
number, [...* * *...] and delivery location .
3.2 Seller shall accept any Order that materially conforms with the terms
of this Agreement. Seller shall use [...* * *...] to send Buyer
written confirmation of such acceptance within [...* * *...] Business
Days after Seller's receipt of a written Order from Buyer.
3.3 If Buyer issues an electronic Order, Seller shall electronically
"Verify" receipt of the electronic Order within [...* * *...] Business
Day of the electronic Order transmission by Buyer. "Verify" or
"Verfication," as used herein, shall mean that Seller has, in fact,
successfully received all necessary Order information and requirements
(e.g. quantity, price, delivery date, part number, and [...* * *...])
from electronic mailbox and shall serve as Seller's notification to
Buyer of both the receipt of the electronic Order from Buyer and the
occurrence of any discrepancies relating to the readiablity of such
electronic Order. Seller shall return an electronic Order
acknowledgement ("EDI Acknowledgement") to Buyer within [...* * *...]
working day following Seller's receipt of said Verfication. Seller
shall be conclusively presumed to have accepted all electronic Orders
issued by Buyer unless Buyer is specifically notified that Seller has
not accepted a particular electronic Order. The receipt of such
notification by Buyer must take place within [...* * *...] Business
Days of the transmission of Buyer's electronic Order.
3.4 All electronic Orders, Verifications, and EDI Acknowledgments
(collectively "EDI Transmissions") and other related data
electronically transmitted shall;
(1) specifically reference and be subject to the terms and conditions
of this Agreement, and
(2) be specially formatted in accordance with Buyer's policies,
specifications and procedures regarding electronic data
interchange information.
3.5 No oral, electronic, or written additional or different provisions
proposed by either Party to the other in any acceptance, confirmation,
or acknowledgment shall apply unless expressly agreed to, in writing,
by the other Party. Buyer hereby gives notice of its objection to any
additional or different terms proposed by Seller. 3.6 Seller agrees
that all of Buyer's Affiliates, wherever located, upon Seller's credit
approval, shall be entitled to make purchases under the terms and
conditions of this Agreement.
3.7 The parties agree that: (i) the provision of the Uniform Commercial
Code Section 2-201 (Statute of Frauds) shall not apply to these
Electronic Interchanges; (ii) these Electronic Interchanges shall be
deemed to satisfy any legal formalities requiring that agreements be
in writing; and (iii) computer maintained records when produced in
hard copy form shall constitute business records and shall be
admissible, as such, to the same extent as other generally recognized
business records.
3.8 The terms governing the delivery of all Product(s), Spares, and/or,
Services ordered by Buyer will be interpreted in accordance with the
International Chamber of Commerce Incoterms 2000 Edition.
[...* * *...]
3.9 Cancellation or changes to Orders shall be addressed in the ODM
(Exhibit G) attached to this Agreement.
4.0 PRICING
4.1 Prices. Seller's prices for the OEM Products and Parts are listed in
Exhibit F.
All OEM Products under this Agreement shall be [...* * *...] Seller
and HP agree to [...* * *...]
4.2. [...* * *...]
4.3. [...* * *...]
4.4 [...* * *...]
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with the commission. Confidential treatment has been requested with respect to
the omitted portions.
4.5 [...* * *...] Seller agrees to quarterly meetings to review Prices and
contract terms. [...* * *...]
4.6 [...* * *...]
4.7 [...* * *...]
4.8 Any scheduled price reductions take effect, worldwide, on the date
shown for the pricing period described on the mutually agreed upon
Product Pricing Schedules, for all material not yet received by Buyer
(in supplier owned inventory, in transit, in WIP, etc.)
5.0 WARRANTY
5.1 Seller hereby warrants that for [...* * *...] months from the date of
Seller's shipment of Product(s) and Spares, that all such Product(s)
and Spares shall be free from defects in material or workmanship and
shall conform to applicable Purchase Specifications (Exhibit D) which
references this Agreement. Seller further represents and warrants that
Product(s) and Spares purchased hereunder shall (i) vest in Buyers
good and valid title to such Product(s) and Spares which is free and
clear of all liens, security interests, and encumbrances.
[...* * *...], in accordance with Subsection 5.2 below. The foregoing
warranties do not apply to any Product or Spare that (a) has been
altered except by Seller, (b) has been improperly handled, installed,
operated or packaged, or (c) has been damaged by accident, misuse,
negligence or external factors.
5.2 Spares may be assemblies or Products refurbished to Like New Condition
and may contain used parts. [...* * *...]
5.3 CND (Can Not Duplicate) shall mean any Product that has been returned
to Seller as defective, but after comprehensive analysis and testing,
the Product was found not to be defective in any manner. In the event
the number of CND Products returned by Buyer exceeds [...* * *...],
Buyer and Seller will immediately jointly investigate and use
commercially reasonable efforts to quickly resolve the source of the
CND activity. Seller agrees to provide Buyer commercially reasonable
field maintenance information on Product [...* * *...] for purposes of
minimizing Seller's CND performance for Products and Spares. CND
metric does not apply until completion. Seller reserves the right to
submit claims to Buyer for reasonable reimbursement of Seller's
expenses associated with CND expenses resulting from Buyer's inability
to resolve prolonged and sustained CND issues in a timely manner.
5.4 Upon the (i) discovery of a defect in material or workmanship in any
Product or Spare during the warranty period, or (ii) discovery of a
Product or Spare that is not in compliance with the Purchase
Specifications (Exhibit D) during the warranty period, Buyer may at
its option, if such defect or non-conformity is identified after the
Product or Spare is Shipped to Buyer's customer, pursue the remedies
described in Section 26.2 of this Agreement. If the defect or
non-conformity is identified before Product or Spare is shipped to
Buyer's customer, in addition to Buyer's pursuit of remedies described
in Section 26.2 of this Agreement, Buyer may [...* * *...]
5.5 In no event will either party be responsible to the other for any
incidental or consequential damages arising out of this warranty.
However, nothing herein shall be deemed an assumption by either party
of liability incurred by the other party in contract or at law, with
regard to any third-party claims. The remedies set forth in this
Section 5 and Section 26.2 shall be Buyer's sole and exclusive
remedies in the event of a breach of the warranties related to the
Products or Spares. The Seller's warranties provided in this Agreement
are provided to Buyer only and not to any other person.
5.6 Seller warrants that Seller has not previously or otherwise granted
any rights related to Products to any third party which conflict with
the rights granted herein; as of the Effective Date, that there is no
violation, litigation, arbitration, or other proceeding pending or
related to Products before any court or any other governmental or
administrative agency; as of the Effective Date that no judgment,
order, injunction, or decree of any court or governmental or
administrative agency regarding the Product(s), Spares, and/or
Services has been entered into record against Seller or served upon
Seller; and that Seller has the full power and authority to enter into
this Agreement, to carry out its obligation set forth herein.
5.7 [...* * *...]
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the omitted portions.
6.0 INDEMNIFICATION AND REMEDIES
6.1 Seller shall indemnify, defend and hold harmless Buyer and its
Affiliates and their respective directors, officers, shareholders,
customers and employees ("Buyer Indemnified Parties") from and against
any and all third party claims, demands, suits, actions, judgments,
costs and liabilities, including attorneys' fees, (each, an
"Indemnified Loss") relating to or arising out of any [...* * *...],
and shall pay all costs and damages awarded; provided, the foregoing
indemnity shall not apply to the extent that any such claim
[...* * *...]
In the event one party (the "Indemnifying Party") is obligated to
indemnify the other party (the "Indemnified Party") under this
Agreement, the Indemnified Party will as soon as is reasonably
practicable provide the Indemnifying Party with prompt written notice
of any claim for which indemnification is required, tender the defense
of any such claim to the Indemnifying Party, provide full cooperation
for such defense at the Indemnifying Party's expense, and not settle
without the Indemnifying Party's prior written approval, not to be
unreasonably withheld. The Indemnified Party may participate in any
such defense or settlement with counsel of its own choosing at its
expense; provided that the Indemnifying Party controls the defense or
settlement negotiations. Failure by Indemnified Party to notify
Indemnifying Party as required above shall not diminish Indemnifying
Party's indemnity obligations hereunder except to the extent any
Indemnified Party 's delay in notifying Seller prejudices Indemnifying
Party's defense of such matter.
If an injunction or exclusion order preventing the use, sale, lease
license, or other distribution of the Product or Spares or any part
thereof results from such a claim (or, if Seller reasonably believes
such an injunction is likely) Seller may, at its expense, use
commercially reasonable efforts to obtain for Buyer the right to
continue using the Product or Spares or modify the Product or Spares
so that they are not infringing. In the event that Seller elects not
to, or cannot obtain such right for Buyer or cannot modify such
Product or Spares, Seller may either cease making such Product or
Spares subject to such injunction or exclusion order available for
Buyer's purchase or terminate this Agreement. In either case,
[...* * *...] The foregoing sets forth Buyer's sole and exclusive
remedy with respect to claims of infringement of third party
intellectual property rights.
6.2 Seller shall defend, indemnify and hold Buyer, its officers,
directors, and employees harmless from and against any and all claims
alleging property damage, personal injury or death, and any losses,
expenses (including reasonable attorney's fees), demands, or judgments
related thereto ("Claims") which result from or arise out of:
a.) The presence of Seller's agents, employees or subcontractors
(Personnel), or equipment on the property of Buyer or its
customers; or
b.) [...* * *...]; or
c.) The use by Seller or its Personnel of Buyer's equipment, tools or
facilities (Equipment). Permission by Buyer to use any such
Equipment shall be gratuitous.
d.) [...* * *...]
6.2.1 Buyer shall defend, indemnify and hold Seller and its officers,
directors, and employees harmless from and against any and all
Indemnified Losses which result from or arise out of: [...* * *...]
6.2.2 Buyer shall defend, indemnify and hold Seller and its officers,
directors, and employees harmless from and against any and all Claims
which result from or arise out of:
a.) The presence of Buyer's agents, employees or subcontractors
(Personnel), or equipment on the property of Seller; or
b.) [...* * *...]; or
c.) The use by Buyer or its Personnel of Seller's equipment, tools or
facilities (Equipment). Permission by Seller to use any such
Equipment shall be gratuitous; or
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d.) [...* * *...]
6.3 To the extent Buyer and its Affiliates are entitled to sublicense
third party rights or exercise "have made" rights, Buyer and its
Affiliates hereby grant to Seller the right to make and sell the
Products and Spares to Buyer and its Affiliates.
6.4 NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND UNLIQUIDATED
INVENTORY), INDIRECT, SPECIAL OR PUNITIVE DAMAGES EVEN IF THE OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT IN
CONNECTION WITH A BREACH OF THE CONFIDENTIALITY PROVISIONS AND THIRD
PARTY INTELLECTUAL PROPERTY INDEMNIFICATION PROVISIONS SET FORTH IN
THIS AGREEMENT.
7.0 PAYMENT
7.1 Seller shall invoice Buyer no later than [...* * *...] calendar days
following the date on which Seller ships Product covered hereby. Such
invoice shall be payable net [...* * *...] calendar days next after
the date of Seller's invoice; provided, [...* * *...] Invoices shall
be subject to verification by Buyer with regards to the accuracy of
the amount invoiced for products provided by Seller.
7.2 Unless otherwise specified in an Exhibit or otherwise agreed to in
writing by the parties, payment shall be made in U.S. Dollars.
7.3 Each Party authorizes the other Party to satisfy all payment
obligations under this Agreement using Electronic Transmissions such
as Electronic Funds Transfer or Automated Clearing House, or other
mutually agreed upon electronic transfer of funds.
7.4 Within [...* * *...] calendar days of commencement of any Electronic
Transmissions, each Party will provide in writing the specified
details of:
(a) Name, address, telephone, Telecopier, or other
appropriate communication numbers of its financial
institution;
(b) Administrative contact at its financial institution
(c) Designated account and account number at its financial
institution for Funds Transfer; and
(d) Name, address, communication number and contact for any
designated Third Party Service Provider.
7.5. Either Party may change its financial institution or account with a
minimum of [...* * *...] calendar days written notice to the other
Party.
8.0 TERM
The term of this Agreement shall be three (3) years, ("Initial Term")
commencing on the date indicated on the signature page of this
Agreement ("Effective Date") and shall automatically renew at the
conclusion of the Initial Term for successive twelve (12) month
periods unless and until one party notifies the other, not less than
thirty (30) calendar days prior to the end of the Initial Term or any
subsequent twelve-month term, that it does not intend to renew this
Agreement. This Agreement may terminate prior to the aforementioned
stated term under the circumstances set forth in Section 9.0
Notwithstanding the foregoing, this Agreement shall remain in full
force and effect and shall be applicable to any Order issued by Buyer
to Seller during the term of this Agreement until all obligations
under such Order have been fulfilled.
9.0 TERMINATION
9.1 Either party (the "Non-Defaulting Party") may terminate this Agreement
issued hereunder at any time by giving [...* * *...] calendar days
written notice to the other party (the "Defaulting Party") upon the
occurrence of an unresolved Default by the Defaulting Party. In
addition, either Party may terminate this Agreement issued hereunder
at
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any time for any reason upon giving written notice of termination to
the other Party. This Agreement shall terminate on the date of such
notice (the "Termination Date").
9.2 Upon termination by either Party of this Agreement for reasons other
than the other Party's Default, each Party's entire liability shall be
as set forth in 9.7.
9.3 Upon termination by Buyer of this Agreement due to Seller's Default,
Buyer may, at its option, return Defective Product to Seller for
Seller's correction or replacement under Agreement warranty period
terms and conditions enforceable at termination, or exercise any other
rights as specifically provided in the provisions of the Agreement.
Product or Spares required to be corrected or replaced shall be
subject to the same inspection and acceptance provisions of this
Agreement as Product or Spares originally delivered under any Order.
9.4 Upon [...* * *...] with respect to any Product or Spare, the parties
hereby agree that [...* * *...]
9.5 Upon the occurrence of a termination event, failure of either party to
submit it's termination claim in writing within [...* * *...] calendar
days, unless extended by the other party in writing prior to the
expiration of said period, shall constitute a waiver of such claim,
and either party shall not be required to notify the other party or
make any determination thereof. "Termination Claim" shall be defined
as a claim by either party for outstanding or overpaid undisputed
invoices and for [...* * *...]
9.6 No action, except those regarding claims by third parties, or claims
with respect to patents, copyrights, trademarks or trade names or the
unauthorized disclosure of Confidential Information, regardless of
form, arising out of this Agreement may be brought by either party
more than one (1) year after the cause of action has arisen.
9.7 EACH PARTY AGREES THAT WITH THE EXCEPTION OF [...* * *...], EACH
PARTY'S AGGREGATE LIABILITY FOR ALL CLAIMS, LOSSES, DAMAGES OR
EXPENSES FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE LESSER
OF [...* * *...]
10.0 FORCE MAJEURE
10.1 Neither party shall be liable for its failure to perform any of its
obligations hereunder during any period in which performance is
delayed by fire, flood, war, embargo, riot or an unforeseeable
intervention of any government authority that causes complete business
interruption ("Force Majeure"), provided that the party suffering such
delay immediately notifies the other party of the delay.
10.2 If, however, Seller's performance is delayed for reasons set forth
above for a cumulative period of thirty (30) calendar days or more,
Buyer, notwithstanding any other provision of this Agreement to the
contrary, may terminate this Agreement upon written notice to Seller.
In the event of such termination, Buyer's sole liability hereunder
shall be for the payment to Seller of any balance due and owing for
Product or Spares previously delivered by Seller and accepted by
Buyer. In the event the parties do not terminate this Agreement and/or
Order due to a Force Majeure, the time for performance or cure will be
extended for a period equal to the duration of the Force Majeure.
11.0 NOTICES
Any notice given under this Agreement shall be given in writing via
the means described in this provision. Written notice shall be sent by
registered mail or certified mail, postage prepaid, return receipt
requested, or by any other overnight delivery service which delivers
to the noticed destination, and provides proof of delivery to the
sender. Any telex or facsimile notice must be followed within
[...* * *...] business days by written notice. All notices shall be
effective when first received at the addresses set out on the front
page of the Agreement or such other addresses as may be notified to
the other party pursuant to this provision.
12.0 INSURANCE
12.1 Without limiting any of the obligations or Liabilities to Seller,
Seller shall maintain, at its own expense, as long as this
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Agreement is in effect, insurance policies of the kind and limits
listed below and with insurers with an A.M. Best's Rating of not less
than A-:VII or its equivalent. Seller will be subject to the following
insurance requirements:
12.1.1 WORKER'S COMPENSATION - If Seller's employees have access to Buyer's
leased or owned premises in connection with the performance of this
Agreement, Seller is required to maintain Workers Compensation
Insurance as required by any applicable law or regulation and in
accordance with the law of the nation, state, territory or province
having jurisdiction over Seller's employees wherever work is to be
performed under this Agreement. Where allowed by law, policy shall
include waiver of subrogation in favor of HP Computer Corporation, its
subsidiaries, officers, directors, employees, and affiliated
companies;
12.1.2 EMPLOYER'S LIABILITY - If Seller's employees have access to Buyer's
leased or owned premises in connection with the performance of this
Agreement, Seller is required to maintain Employer's Liability
Insurance in an amount keeping with the law of the nation, state,
territory or province having jurisdiction over Seller's employees
wherever work is to be performed under this Agreement or [...* * *...]
whichever is greater. Where allowed by law, policy shall include
waiver of subrogation in favor of HP Computer Corporation, its
subsidiaries, officers, directors, employees, and affiliated
companies;
12.1.3 COMMERCIAL GENERAL LIABILITY - Seller is required to maintain
Commercial General Liability Insurance for Bodily Injury and Property
Damage including Premises/Operations, Products/Completed Operations,
Contractual Liability, Independent Contractor's Liability, Broad Form
Property Damage, Personal/Advertising Injury with limits not less than
[...* * *...] per occurrence and [...* * *...] General Aggregate.
Where allowed by law, policy shall name HP Computer Corporation, its
subsidiaries, offices, directors, employees and affiliated companies
as Additional Insureds and shall not include a Care, Custody and
Control Exclusion.
12.1.4 AUTOMOBILE LIABILITY If licensed vehicles are used in connection with
the performance of this Agreement, and at all times when such vehicles
are operated on the leased or owned premises of Buyer, Seller shall
maintain Automobile Liability insurance for Bodily Injury and Property
Damage in an amount in keeping with the laws of the nation, state,
territory or province wherever work is to be performed under this
Agreement or [...* * *...] whichever is greater. Policy must cover all
automobiles, trucks, tractor-trailers, motorcycles or other automotive
equipment, whether non-owned, owned, or hired by Seller, including the
loading thereof. Where allowed by law, policy shall name HP Computer
Corporation, its subsidiaries, officers, directors, and employees as
Additional Insureds;
12.1.5 FIDELITY/CRIME FOR EMPLOYEES' DISHONEST ACTS
i. If Seller's employees have unsupervised access to Buyer's
assets, either physically or electronically in connection
with the performance of this Agreement, Seller will maintain
Fidelity/Crime Insurance covering employee dishonesty for
Seller's employees involved in the performance of this
Agreement with limits not less than [...* * *...] and
including Liability to Others for Employee Theft or Forgery;
Policy shall name HP Computer Corporation as Loss Payee as
Buyer's interest may appear, giving the right to bring a
claim directly against Seller's insurance company for loss
of Buyer's property. Seller's policy shall NOT include a
Conviction Requirement Clause.
ii. If Seller's employees have supervised access to Buyer's
assets, either physically or electronically in connection
with the performance of this Agreement, Seller will maintain
Fidelity/Crime Insurance covering employee dishonesty for
Seller's employees involved in the performance of this
Agreement with limits not less than [...* * *...] and
including Liability to Others for Employee Theft or Forgery;
Policy shall name HP Computer Corporation as Loss Payee as
Buyer's interest may appear, giving the right to bring a
claim directly against Seller's insurance company for loss
of Buyer's property. Seller's policy shall NOT include a
Conviction Requirement Clause.
iii. If Seller's employees do NOT have access to Buyer's assets,
either physically or electronically, in connection with the
performance of this Agreement, the requirement for
Fidelity/Crime Insurance is waived.
iv. If Seller is an individual with no employees, the
requirement for Fidelity/Crime Insurance is waived.
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12.1.6 EXCESS LIABILITY: Seller is required to maintain Excess of Umbrella
Liability Insurance with limits not less than [...* * *...] per
occurrence and [...* * *...] in the aggregate. Policy shall follow
form of underlying liability policies.
12.2 Seller's insurance shall be primary and any other valid and
collectible insurance or self-insurance maintained by or in the name
of the HP Computer Corporation, shall be excess of the Seller's
insurance and shall not contribute to it.
12.3 It is Seller's responsibility to ensure that the insurance
requirements listed above are in effect for the full term of this
Agreement. Cancellation of coverage without Buyer's approval shall be
considered a breach of contract. Seller shall give Buyer thirty days
(30) notice of Cancellation of coverage. In addition, all of Seller's
outside vendors, contractors or subcontractors must retain adequate
insurance as detailed above if performing work for Buyer on Seller's
behalf. Seller is responsible to verify and maintain certificates of
insurance from Seller's subcontractors.
12.4 Within ten (10) business days of execution of this Agreement, Seller
shall provide to Buyer certificates of insurance evidencing full
compliance with the insurance requirements contained herein. Such
certificates shall be kept current throughout the entire term of this
Agreement, and shall provide for at least thirty (30) calendar days
advance notice to Buyer if coverage is to be canceled or materially
altered so as not to comply with the foregoing insurance requirements.
The original certificate of insurance should be mailed to Buyer's
Contact identified in the Notice Section of this Agreement.
13.0 COMPLIANCE WITH LAWS
13.1 Seller's failure to comply with any of the requirements of this
Section may result in a material breach of the Agreement.
13.2 All Services performed pursuant to the Agreement and any Orders shall
comply with all applicable United States and or foreign laws and
regulations per the Product Specification. Seller will not knowingly
violate any foreign laws associated with Seller's business practices
in those countries in which Seller directly operates on behalf of
Buyer. Upon request, Seller agrees to certify compliance with any
applicable law or regulations.
13.3 In so far as any of the Products supplied to Buyer are commercial
products provided by a company doing business in the USA or in respect
to Services performed in the USA then the following provisions and
clauses of the Federal Acquisition Regulation (FAR), 48 CFR Chapter 1,
are hereby incorporated by reference, with the same force and effect
as if they were given in full text and are hereby made binding upon
the subcontractor or vendor. Where the clauses or provisions say
"Contractor", substitute "subcontractor or vendor."
(1) Nonexempt Subcontracts and Purchase Orders for $10,000 or more,
or which is expected to amount to $10,000 or more: 52.222-36
Affirmative Action for Workers with Disabilities (JUN 1998)
(2) Nonexempt Subcontracts and Purchase Orders over $10,000 or
subcontracts and Purchase Orders the aggregate value of which in
any twelve month period exceeds or can be expected to exceed
$10,000: 52.222-26 Equal Opportunity (FEB 1999).
(3) Nonexempt Subcontracts and Purchase Orders for $10,000 or more,
or which is expected to amount to $10,000 or more: 52.222-35
Affirmative Action for Disabled Veterans and Veterans for the
Vietnam Era (APR 1998)
13.4 The provisions of any applicable State "Right-To-Know" laws and
regulations are made a part of this Agreement. A copy of the
applicable Product or Spares Safety Data Sheets as required under such
laws and regulations shall be provided by Seller upon delivery of
Product or Spares and updated as necessary.
13.5 This Agreement is subject to all applicable United States laws and
regulations relating to exports and to all administrative acts of the
U.S. Government pursuant to such laws and regulations. Without
restricting the generality of the foregoing, Seller agrees to ensure
that any Product and/or Spares supplied to Buyer meets all U.S.
Government Export Licensing requirements, including Denied Parties
List (DPL) screening, identification of any non-U.S. Nationals from
Restricted, Special Licensing or Embargoed countries, compliance with
applicable U.S. Department of
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Commerce Export Regulations and U.S. Department of State International
Traffic in Arms Regulations (ITAR).
13.6 Seller agrees to comply with the United Stated Federal requirements
contained at Title 40, Code of Federal Regulations Part 82 -
"Protection of Stratospheric Ozone; Labeling". Moreover, Seller shall
not knowingly supply to Buyer any product or part that contains or has
been manufactured using a Class 1 ozone depleting substance, as that
term is defined in the Regulations, unless Seller has provided prior
written notice to Buyer.
13.7 In accordance with and subject to the laws and regulations of the
United States, Seller shall not export, re-export or otherwise
disclose, directly or indirectly, Technical Data or the direct product
of such Technical Data received from Buyer without Buyer's prior
knowledge and written consent. Buyer shall not export, re-export or
otherwise disclose, directly or indirectly, Technical Data or the
direct product of such Technical Data received from Seller without
Sellers prior knowledge and written consent.
13.8 Hazardous Materials, Air Emissions & Waste Water Discharges - Buyer
requires that each of its suppliers comply with all applicable
environmental laws and regulations regarding hazardous materials, air
emissions and waste water discharges, including those regarding the
manufacture, transportation, storage, disposal, and release to the
environment of such materials.
13.9 Health & Safety - Buyer expects its suppliers to maintain their
facilities in a safe and healthy manner and in compliance with all
applicable laws and regulations.
13.10 Child Labor - Buyer expects its suppliers to refrain from using child
labor. Workers can be no less than 14 years of age and not younger
than the compulsory age to be in school. Buyer supports the
development of legitimate workplace apprenticeship programs for the
educational benefit of young people.
13.11 Social and Environmental Responsibility. Seller warrants that in all
countries in which Seller and, to Seller's knowledge, information and
belief, Seller's authorized Subcontractors do business, its and their
operations comply with all applicable laws and regulations governing
protection of the environment, employee health and safety, and labor
and employment practices, including but not limited to, laws and
regulations relating to working hours, working conditions, wages,
benefits, child labor, forced labor, freedom of association and equal
employment opportunity. Seller agrees to sign the HP Supplier Social
and Environmental Responsibility Agreement and comply with HP's
Supplier Code of Conduct [...* * *...], including establishment of
management systems as described therein.
14.0 GRATUITIES
Each party represents that it has not offered nor given and will not
(i) offer nor give any employee, agent, or representative of the other
party any gratuity, or (ii) influence such person's normal job
responsibilities in any way with a view toward securing any business
from the other party or influencing such person with respect to the
business between the parties.
15.0 CONFIDENTIAL INFORMATION
15.1 The parties acknowledge that they have entered into a binding
Confidentiality and Nondisclosure Agreement ("CDA"), attached hereto
as Exhibit K, and hereby agree to abide by the terms of such CDA and
any renewal thereto. All provisions of such CDA are incorporated by
reference, and shall govern all disclosures of Confidential
Information made under the Agreement. Not withstanding the terms of
the CDA, the parties agree neither party will disclose Confidential
Information to competitors of the other party. The CDA supercedes any
prior Confidentiality and Nondisclosure Agreements between the parties
as to Confidential Information disclosed by the parties on or after
the Effective Date of the CDA.
15.2 The parties acknowledge that the unauthorized disclosure of either
party's confidential information will cause irreparable harm.
Accordingly, the parties agree that the injured party shall have the
right to seek immediate injunctive relief enjoining such unauthorized
disclosure.
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15.3 Parties agree the term of the CDA is controlled by the CDA separate of
the term of the Agreement. The CDA is to be reviewed annually by the
Parties for renewal with such mutually determined renewal not
requiring amendment to this Agreement. In the event the CDA expires or
is terminated prior to the termination or expiration of this
Agreement, the parties agree that (a) all Confidential Information
disclosed after expiration or termination of the CDA and prior to the
termination or expiration of this Agreement shall be governed by
Sections 4, 5, and 6 of Exhibit K, (b) the "Protection Period" for
such Confidential Information shall be deemed to end on the earlier of
the date [...* * *...] years after the disclosure of the applicable
Confidential Information and the date [...* * *...] years after
termination or expiration of this Agreement, and (c) such CDA terms
shall survive termination or expiration of this Agreement for a period
of [...* * *...] years.
16.0 TRADEMARKS AND LOGOS
Subject to Buyer's Label Specification in Exhibit A and Purchase
Specification Exhibit D, Seller is authorized to use Buyer's logo and
trademark only to the extent necessary to meet the required
specifications for the Product. No other rights with respect to
Buyer's trademarks, trade names or brand names are conferred, either
expressly or by implication, upon Seller without prior written
approval.
17.0 TRADE REQUIREMENTS
17.1 Seller's sites understand that this Agreement is subject to compliance
with U.S. and other national export, import, customs and trade-related
laws and regulations and that the sites are responsible for
implementing procedures to ensure compliance with all guidelines
outlined in each of HP Regional Trade Guidelines, (US Import/Export
Guidelines for Alliance/OEM Partners (Exhibit I) Seller's sites
acknowledge that they are knowledgeable about such laws, regulations,
and HP requirements and agree to comply with same.
17.2 Each Seller's site is responsible for determining the appropriate
country of origin ("CO") for the product(s) it manufactures/assembles
for HP and for marking these products in accordance with the
requirements set out in HP Trade's Regional Import/Export Guidelines
for Alliance/OEM Partners (Exhibit I). Further, each site must
cooperate fully with Buyer in supplying data to facilitate Buyer's
origin reporting requirements and qualification for preferential
origin programs such as NAFTA, IFTA, FMF, EXIM and the like including,
but not limited to, all requested origin analysis, certificates of
origin, manufacturer's affidavits, data (eg. EDI) transmissions, and
special reporting.
17.3 The following Trade data elements must be printed on each and every
commercial invoice and must be returned to Buyer via the standard
electronic/EDI Shipping Confirmation signal:
- Country of Origin (line item level)
- HTS Classification (line item level)
- ECCN (line item level)
- License (line item level)
- Destination Control Statement
Further, Seller must maintain, and reproduce upon demand, all
documentation relating to the international transport of Products or
Spares for a period of not less than six calendar years from the date
of each shipment. All such record keeping system will comport with the
legal requirements of the U.S. and other nations including, but not
limited to, requirements set out in Parts 762 and 772, U.S. Department
of Commerce, Export Administration Regulations and the U.S. Customs
Record-Keeping Regulations, 19 C.F.R. 163. Alliance/OEM sites
acknowledge that they are knowledgeable about these requirements and
agree to comply with same.
Seller will provide immediate notice to Buyer (via the site's
appointed Buyer's representative) in the event of an action by U.S. or
other national government customs/export authorities which relates
specifically to goods or services provided to Buyer by the
Alliance/OEM site.
Each Seller's site will afford Buyer, and Buyer's duly appointed
agents, reasonable access to the Alliance/OEM premises for Trade
compliance audit purposes. The Alliance/OEM site further agrees to
fully cooperate with Buyer in
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this regard, to respond in a timely manner to Buyer's requests for
production of Trade Control Records, and to comply with all remedial
or corrective actions that Buyer may specify.
17.4 All Seller's sites must be capable of producing accurate and complete
shipping documentation for each and every shipment. Sites are
responsible for knowing and understanding shipping documentation
standards applied in the normal course of international business and
for knowing and understanding additional requirements outlined in HP
Trade's Regional Import/Export Guidelines for Alliance/OEM Partners
(Exhibit I). Seller's sites acknowledge that they are knowledgeable
about such standards and Buyer requirements and agree to comply with
same
17.5 Seller is responsible for knowing and understanding the terms of sale
governing their contract(s) with Buyer. Each Seller's site is
responsible for understanding the scope of its responsibilities under
the applicable sales term(s), for ensuring that all of the site's
employees and agents are likewise educated, and for implementing
procedures to ensure that the site, the site's employees and the
site's agents fulfill the Buyer's responsibilities under the
applicable term(s). Seller's sites acknowledge that they are
knowledgeable about these terms and agree to comply with same.
17.6 For each and every transaction where [...* * *...] It is the
responsibility of [...* * *...] and agree to comply with same.
18.0 EXPORT CLASSIFICATION AND LICENSING AUTHORITY
18.1 [...* * *...] In any event, should Products deemed as "Hazardous
Materials" be scheduled to be shipped by Seller to or on behalf of
Buyer, Seller shall notify Buyer, in writing, in advance of such
shipment and receive written authorization from Buyer to ship same
before any such shipment is made.
18.2 "Country of Origin" Marking: The Seller shall mark, in English, all
Product or Spares with the Country of Origin (manufacture),in
compliance with Section 304 of the United States Tariff Act. Both the
Product and Spares and its container must be conspicuously marked with
the Country of Origin. If the Product or Spares itself cannot be
marked legibly due to size, then its immediate container must be
marked with a signed certificate stating Country of Origin
(manufacture) by quantity and part number (Buyer's and Seller's).
19.0 QUALITY
19.1 Seller shall establish and maintain a quality system that meets or
exceeds the requirements of the level of applicable ISO 9000 standards
that is appropriate for Products and/or Spares being provided to
Buyer.
Seller shall meet any one or more of the following:
- a quality management system and manual compliant to the
applicable ISO 9000 Quality Systems series of standards
- ISO 9000 certification
- A plan for the ISO 9000 certification and expected certification
date, no longer than eight months from the contract date
- Successfully passed Buyer's Supplier Development Process (SDP)
audits (Exhibit E)
Additionally, Seller and Buyer shall negotiate and enter into a
Quality Plan (Exhibit H) for the Products and/or Spares being provided
to Buyer.
19.2 Seller shall ensure that all Product, Spares and/or Services conform
to the Purchase Specifications (Exhibit D) The Purchase Specifications
shall include any labeling requirements imposed by applicable law.
19.3 Upon reasonable notice, Buyer shall be entitled to visit and inspect
Seller's facility sites during normal business hours and Seller shall
cooperate to facilitate such visits. Seller authorizes and agrees to
assist Buyer in the performance of reasonable sourcing inspection and
quality assurance reviews, and/or quality certifications which may
take place at Seller's manufacturing facilities and/or at the
manufacturing facilities of Seller's subcontractors or authorized
agents. Seller acknowledges that Buyer's inspections shall in no way
relieve Seller of its obligation to
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deliver conforming Product(s), Spares, and/or Services nor does it
waive Buyer's right of inspection at the time of delivery or limit any
warranty rights granted in Section 5.0 of the Agreement.
19.4 Seller shall establish and maintain a quality improvement plan that is
acceptable to Buyer. Seller's initial Quality Plan is attached to this
Agreement as Exhibit H, which can not be amended without Buyer's prior
written consent.
19.5 At Buyer's request, Seller shall provide Buyer with relevant
inspection, quality, and reliability data. Monthly reporting format
and content in place at time of signing of Agreement will establish
Buyers expected ongoing scope of relevant and commercially reasonable
data throughout the term of the Agreement.
20.0 BUSINESS CONTINUITY
20.1 Seller hereby warrants that (i) it will use commercially reasonable
efforts to implement a Business Continuity Plan within [...* * *...]
months of contract signing, that is prudent and adequate for its
business related to Products and Spares identified in this Agreement;
and (ii) its Business Continuity Plan is approved and maintained as a
working document in full anticipation of it being capable of being
implemented in the event that an event should materialize that
threatens Business Continuity; [...* * *...]
20.2 At Buyers option Seller shall [...* * *...]
20.2.1. All information provided by either party shall be deemed confidential.
All information provided by Buyer in the [...* * *...] are proprietary
to Buyer and are created for Buyer's own use. The contents of such
[...* * *...] IN NO EVENT SHALL [...* * *...] Seller must not disclose
any Buyer proprietary materials to any third party without Buyer's
prior approval.
20.2.2. Buyer does not warrant or represent that [...* * *...] Buyer does not
warrant or represent that [...* * *...]
20.2.3. Buyer shall [...* * *...]
21.0 GENERAL
21.1 Any obligations and duties which by their nature extend beyond the
expiration or earlier termination of this Agreement shall survive any
such expiration or termination and remain in effect.
21.2 If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, such provision shall be enforced to
the fullest extent permitted by applicable law and the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
21.3 Any waiver of any kind by a party of a breach of this Agreement must
be in writing, shall be effective only to the extent set forth in such
writing and shall not operate or be construed as a waiver of any
subsequent breach. Any delay or omission in exercising any right,
power or remedy pursuant to a breach or Default by a party shall not
impair any right, power or remedy which either party may have with
respect to a future breach or Default.
21.4 With respect to [...* * *...], the applicable party may [...* * *...]
under this Agreement. [...* * *...]
21.5 Except to the extent that (i) the confidentiality provisions set forth
in Section 15.0 conflict with confidentiality provisions set forth in
any other confidentiality or non-disclosure agreement between the
parties hereto, and (ii) the Effective Price and Part Numbers as
identified in a Product Pricing Schedule (Exhibit F) is updated from
time to time by mutual agreement of the parties, the existence of
Exhibits attached herein this Agreement represents the entire
agreement with respect to the subject matter hereof and supersedes all
prior discussions and agreements between the parties relating to the
subject matter hereof. This Agreement can be modified only by a
written amendment duly signed by persons authorized to sign agreements
on behalf of both parties, and shall not be supplemented or modified
by any course of dealing or trade usage. Variance from or addition to
the terms and conditions of this Agreement or any Order, or other
written notification from Seller or Buyer will be of no effect.
CPA# 1312-11502 HP CONFIDENTIAL PAGE 16
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
21.6 Seller, including its servants, agents and employees, is an
independent contractor and not an agent or employee of Buyer. Without
limiting the generality of the foregoing, Seller is not authorized to
represent or make any commitments on behalf of Buyer, and Buyer
expressly disclaims any liability therefore. Buyer including its
Affiliates, servants and employees, is an independent contractor and
not an agent or employee of Seller. Without limiting the generality of
the foregoing, Buyer is not authorized to represent or make any
commitments on behalf of Seller, and Seller expressly disclaims any
liability therefore.
21.7 THE CONSTRUCTION, VALIDITY, AND PERFORMANCE OF THIS AGREEMENT AND ANY
ORDER ISSUED UNDER IT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK, USA. THE PARTIES HEREBY WAIVE APPLICATION OF THE U.N.
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
21.8 Buyer may assign this agreement, and any of its rights, interests or
obligations under this agreement, in Buyer's sole discretion, to any
direct or indirect wholly owned subsidiary of Buyer, any direct or
indirect parent of Buyer or any other affiliate of Buyer. Subject to
the preceding sentence, this agreement will be binding upon, inure to
the benefit of and be enforceable by Buyer and its successors and
assigns.
Seller may assign this agreement, and any of its rights, interests or
obligations under this agreement, in Seller's sole discretion, to any
direct or indirect wholly owned subsidiary of Seller, any direct or
indirect parent of Seller or any other affiliate of Seller. Subject to
the preceding sentence, this agreement will be binding upon, inure to
the benefit of and be enforceable by Seller and its successors and
assigns.
21.9 EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT ALL
OTHER WARRANTIES (EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE)
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED IN THEIR ENTIRETY.
21.10 Upon the request of either party, the parties shall cooperate and use
commercially reasonable efforts to implement as soon as practicable an
electronic data interchange system to process the submission and
acceptance of Orders, the payment of Product and such other matters as
the parties may mutually agree upon having such terms and
transmissions standards and formats as the parties may agree.
21.11 [...* * *...]
21.12 Except for either parties disclosure to its accountants and lawyers
under confidentiality provisions neither party may publicize or
disclose to any third party, without the prior written consent of the
other party, the terms of this Agreement. No press releases regarding
this Agreement or the relationship established thereunder may be made
without the prior written consent of HP. Violation of this provision
constitutes a material breach. If disclosure is related to U.S.
Federal Securities laws, after other party has been notified of such
requirement, approval of such disclosure will not be unreasonably
withheld.
22.0 CHANGES
22.1 [...* * *...]
22.2 [...* * *...]
22.3 [...* * *...]
22.4 Lifetime Buy Rights. After the first year of shipment of a Product,
Seller may discontinue the supply of such Product (each such Product,
a "Discontinued Product") with no less than [...* * *...] months
notice to Buyer. In the event Seller discontinues the supply of one of
more Products, Seller will give notice to Buyer no less than
[...* * *...] months in advance of the last date the Discontinued
Product can be delivered (the "Discontinuance Date"). During
[...* * *...] date after receipt of notice of discontinuance, Buyer
may place Orders for any quantity of the
CPA# 1312-11502 HP CONFIDENTIAL PAGE 17
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
Discontinued Product for delivery prior to the Discontinuance Date. To
the extent that such Orders exceed Buyer's previous forecast for such
Discontinued Products, the Orders shall be non-cancelable upon
acceptance by Seller. Seller shall accept only non-cancelable Orders
after [...* * *...] All shipments must be completed prior to the
Discontinuance Date.
22.5 [...* * *...]
23.0 DELIVERY
Section 23 of the Agreement applies to Buyer's Orders of Product(s)
and/or Spare(s) purchased with Orders not administered under a
separate Optimized Delivery Model (ODM) (Exhibit G). Delivery
performance of Buyer's Orders administered under a separate ODM
Exhibit will be measured by the terms and conditions of the ODM
Exhibit.
23.1 Seller shall deliver Product(s) and Spares to Buyer on the specified
date ("On-dock Date") and to the specified location ("Delivery Site")
set forth in the related Order. The failure of Seller to deliver
Product on the date and at the place specified in the Order shall
constitute a breach of the Agreement. Seller shall immediately notify
Buyer, in writing, if Seller has knowledge of any event which is
reasonably likely to delay any specified delivery date, place, or
plan. On Time Delivery shall mean delivery of scheduled Product no
more than two (2) business days early and zero (0) business days late.
The failure of Seller to make On Time Delivery shall be considered a
material breach of the Agreement.
23.2 If Seller delivers Product(s), Spares, and/or Services more than two
(2) business days in advance of the On-dock Date, Buyer may, at its
option, (i) return such Product(s) and/or Spares to Seller at Seller's
risk and expense including, but not limited to, any transportation,
import, or export related expenses or duties, (in which case Seller,
at its expense, shall redeliver such Product(s) and/or Spares to Buyer
on the correct On-dock Date); or (ii) retain such Product(s) and/or
Spares and make payment on the date payment that would have been due
based on the correct On-dock Date.
23.3 In the event that Product(s) or Spares scheduled for delivery is
delivered more than one (1) Business Day later than the On-dock Date,
Buyer may, at its discretion, require Seller to ship and deliver such
Product(s) and/or Spares to Buyer or Buyer's Affiliates via a
different mode of transportation at Seller's expense or pursue any
other remedy available to Buyer, at law or in equity, consistent with
the terms of this Agreement.
23.4 Changes to delivery dates outside of firm Delivery Schedule may only
be made by Buyer's authorized purchasing representatives, as specified
by Buyer. Buyer may, without cost or liability, issue Change Orders
for Product(s) or Spares quantities and schedule dates. Seller shall
send Buyer a written confirmation thereof within seven (7) Business
Days of Seller's receipt of said Change Order and Buyer shall provide
Seller with an Order confirming such change within seven (7) Business
Days of receiving Seller's confirmation.
23.5 Buyer may measure Seller's On Time Delivery performance against
Seller's delivery commitments for the purpose of establishing Seller's
rate of improvement for On Time Delivery, Lead-Time, and cycle time
against Buyer's requirements for the same. Lead-Times for all Products
ordered hereunder shall not exceed that listed in the Product Pricing
Schedule (Exhibit F) attached hereto. Seller shall provide Buyer with
quarterly status reports on Seller's manufacturing cycle times.
23.6 [...* * *...] Seller agrees to work with Buyer to establish a mutually
agreed upon logistics solution. Buyer may add, change or delete Hub
providers with written notice to Seller and providing commercially
reasonable lead time for implementation of change, such changes will
not require formal amendment to Agreement or any Attachment or
Exhibit.
24.0 PACKING, MARKING, AND SHIPPING INSTRUCTIONS
24.1 Seller shall prepare and pack all Product and Spares in a manner that
is consistent with practices customary in the computer component
industry, Buyer may request formal change to any packaging necessary
to meet a designated carrier's requirements, or to conform with the
laws and regulations of any applicable country (including, but not
limited to, the United States of America) and any applicable
subdivision thereof; Seller will not unreasonably withhold its
approval of Buyer requested changes.
CPA# 1312-11502 HP CONFIDENTIAL PAGE 18
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
24.2 Seller shall mark, or cause to be marked, each shipping container to
adequately show Buyer's Order number, part number, revision level, lot
number, Country of Origin and quantity contained therein. Seller shall
include in each container a packing list showing the Order number.
25.0 PRODUCT FORECASTS
25.1 Buyer shall provide Seller on a [...* * *...] basis, with Buyer's
intended production requirements forecasted for a rolling
[...* * *...] period. Such forecasts are [...* * *...], and, except
for [...* * *...], including but not limited to [...* * *...]
25.2 Seller agrees to review such forecasts, provided by Buyer, and advise
Buyer if Seller anticipates Seller's inability to achieve the
forecasted volumes. Buyer volume forecasts will be provided to Seller.
Seller may from time to time request Buyer to review Buyer's intended
purchase forecasts and advise Seller of any changes.
26.0 INSPECTION AND ACCEPTANCE
26.1. Product(s), Spares, and/or Services purchased or to be purchased
pursuant to this Agreement shall be subject to inspection and testing
by Buyer [...* * *...] Unless otherwise specified in the Order, final
inspection of Product(s), Spares, and/or Services by Buyer shall be at
Buyer's facilities. Buyer reserves the right to reject Defective
Product under warranty provisions.
26.2. If Buyer returns a Defective Product covered under the Warranty
section 5 of this Agreement to Seller for correction, or replacement,
Seller shall repair or replace same within [...* * *...] Business Days
of [...* * *...] Seller shall bear all risk and costs associated with
replacing or repairing Defective Product. Buyer will [...* * *...],
Seller will [...* * *...] Seller agrees to provide failure analysis of
Defective Product within [...* * *...] Business Days after receipt
thereof. Seller also agrees to provide Buyer with a written corrective
action report addressing the steps that will be taken to eliminate the
recurrence of the problem and will use commercially reasonable efforts
to implement the actions addressed in such corrective action report.
CPA# 1312-11502 HP CONFIDENTIAL PAGE 19
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
27.0 RIGHTS, TITLE AND INTEREST
27.1 Except as otherwise provided in an Exhibit to the Agreement, Buyer
shall retain all rights, title, and interest to any and all Materials
furnished to Seller under this Agreement including, but not limited
to, the Buyer Owned Materials set forth in an Ownership of Materials
Exhibit (Exhibit B). Buyer shall have sole ownership of any
Buyer-generated or Buyer-specified intellectual property contained in
any Custom Products.
27.2 Except as otherwise provided in an Exhibit to the Agreement, Seller
shall retain all rights, title, and interest to any and all Materials
furnished to Buyer under this Agreement including, but not limited to,
the Seller Owned Materials set forth in an Ownership of Materials
Exhibit (Exhibit B). Seller shall have sole ownership of all tools
furnished, created, or used in performance of this Agreement, unless
otherwise provided for in a Tooling Agreement.
28.0 COST IMPACT / OBSOLESCENCE CLAIMS
28.1 [...* * *...]
28.2 [...* * *...]
28.3 [...* * *...]
28.4 [...* * *...]
CPA# 1312-11502 HP Confidential page 20
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
29.0 LIST OF EXHIBITS
Exhibit A: HP BASIC LOOP SWITCH - LABEL SPECIFICATION
Exhibit B: Ownership of Materials Exhibit
Exhibit C: Listing of Affiliates
Exhibit D: Purchase Specifications
Exhibit E: Supplier Development Process
Exhibit F: Product Pricing Schedule
Exhibit G: Optimized Delivery Model (ODM)
Exhibit H: Quality Plan
Exhibit I: US Import/Export Guidelines for Alliance/OEM Partners
Exhibit J: Service Requirements
Exhibit K: Confidentiality Disclosure Agreement (CDA)
END OF GENERAL TERMS.
CPA# 1312-11502 HP CONFIDENTIAL PAGE 21
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT A
BASIC LOOP SWITCH
LABEL SPECIFICATION
[...* * *...]
[8 pages omitted]
Exhibit A
CPA # 1312-11502 HP Confidential
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT B
OWNERSHIP OF MATERIALS EXHIBIT
Supplier Materials, Buyer Materials, and Third-Party Materials
Effective as of the 24th day of June, 2002, this Exhibit shall form part of
Corporate Purchasing Agreement CPA# 1312-11502 (the "Agreement") between the
parties and shall designate ownership rights of the below-listed materials,
equipment, and/or the intellectual property rights contained therein. The
parties' rights to the following materials is set forth in Sections 2 and 27 of
the above-referenced Agreement.
[...* * *...]
[1 page omitted]
Exhibit B
CPA # 1312-11502 HP Confidential
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT C
LISTING OF AFFILIATES
1.0 Affiliates
The list of affiliates will be updated as they become available.
HP C/O UPS Logistics
2220 Outer Loop Road
Building 3
Doors 241-244
Louisville, Ky. 40219
HP Computer International GMBH
c/o TNT Network Logistics
Bijsterhuizen 2207 - 2023
6604 LH Wijchen
The Netherlands
Exhibit C
CPA# 1312-11502 HP Confidential
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT D
PURCHASE SPECIFICATIONS
[...* * *...]
[24 pages omitted]
Exhibit D
CPA# 1312-11502 HP Confidential
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT E
SUPPLIER DEVELOPMENT PROCESS
[...* * *...]
[31 pages omitted]
Exhibit E
CPA# 1312-11502 HP Confidential
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT F
PRODUCT PRICING SCHEDULE
Buyer and Seller agree that the below-listed prices ("Effective Price") and part
numbers ("Products") form part of Corporate Purchase Agreement and shall replace
and supercede any former pricing schedules for the Products identified below.
[...* * *...]
[5 pages omitted]
Exhibit F
CPA# 1312-11502 HP Confidential
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT G
OPTIMIZED DELIVERY MODEL (FLEXIBILITY)
(MDR) Demand Pull Exhibit
This document is to be used as an Exhibit to the HP Corporate Purchase
Agreement.
PERIOD OF THE EXHIBIT
This Exhibit will become effective on Effective Date and the duration of the
Exhibit will be coterminous with the HP Corporate Purchase Agreement CPA#
1312-11502.
[...* * *...]
[4 pages omitted]
Exhibit G
CPA# 1312-11502 HP Confidential
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT H
HP CORPORATION
AND
VIXEL CORPORATION
QUALITY PLAN
STORAGE INTERCONNECT PRODUCTS
[...* * *...]
[10 pages omitted]
Exhibit H
CPA# 1312-11502 HP Confidential
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT I
US IMPORT / EXPORT GUIDELINES
FOR
ALLIANCE / OEM PARTNERS
[...* * *...]
[9 pages omitted]
Exhibit I
CPA# 1312-11502 HP Confidential
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT J
SERVICE REQUIREMENTS
This Service Requirements Exhibit ("Exhibit") is made part of Corporate
Purchasing Agreement, CPA# 1312-11502, between HP Computer Corporation (Buyer)
and Vixel Corporation (Seller) ("Agreement") and provides additional terms and
conditions for support Services and Spares to be provided to Buyer's services
organization. Terms used have the same definitions as in the Agreement. In the
case of conflict between the Agreement and this Exhibit, the terms of this
Exhibit will take precedence.
[...* * *...]
[2 pages omitted]
Exhibit J
CPA# 1312-11502 HP Confidential
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT K
CONFIDENTIAL DISCLOSURE AGREEMENT (CDA)
[...* * *...]
[1 page omitted]
Exhibit J
CPA# 1312-11502 HP Confidential
***Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.