EXHIBIT 10.30
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AMENDED.
PURCHASE AGREEMENT
NO.
MADE AND ENTERED INTO BY AND BETWEEN
NOKIA CORPORATION
NOKIA NETWORKS
AND
ENDWAVE CORPORATION
ON DECEMBER 31, 2003
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TABLE OF CONTENTS
PREAMBLE
CLAUSE 1 DEFINITIONS
CLAUSE 2 OBJECT OF THE AGREEMENT
CLAUSE 3 PARTS
CLAUSE 4 PURCHASE ESTIMATES
CLAUSE 5 ORDERS
CLAUSE 6 PRICES
CLAUSE 7 TERMS OF PAYMENT
CLAUSE 8 TERMS OF DELIVERY AND PASSING OF TITLE
CLAUSE 9 PACKING
CLAUSE 10 DELIVERY TIMES
CLAUSE 11 RE-SCHEDULING AND CANCELLATION
CLAUSE 12 INSPECTIONS
CLAUSE 13 QUALITY REQUIREMENTS
CLAUSE 14 AVAILABILITY OF THE PARTS AND DISCONTINUATION OF PRODUCTION
CLAUSE 15 FACILITY SURVEYS
CLAUSE 16 WARRANTIES
CLAUSE 17 LIABILITY
CLAUSE 18 ENVIRONMENTAL MANAGEMENT AND COMPLIANCE WITH LAWS
CLAUSE 19 MANUFACTURING RIGHTS, INTELLECTUAL PROPERTY RIGHTS AND TOOLING
CLAUSE 20 CONFIDENTIALITY
CLAUSE 21 EVENTS OF FORCE MAJEURE
CLAUSE 22 EFFECTIVE DATE AND TERM
CLAUSE 23 REPORTABLE EVENTS AND TERMINATION FOR DEFAULT
CLAUSE 24 GOVERNING LAW AND SETTLEMENT OF DISPUTES
CLAUSE 25 FINAL PROVISIONS
Appendix 1 The Parts, Prices, Discounts and Price Validity
Appendix 2 Intentionally Omitted
Appendix 3 Quality Requirements and Workmanship Standards
Appendix 4 Warranties and Support
Appendix 5 Logistics Appendix
Appendix 6 Intentionally Omitted
Appendix 7 Product Liability Insurance
Appendix 8 Mandatory Environmental Requirements
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PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into this day of December 31, 2003 by and
between
NOKIA CORPORATION, represented through its Nokia Networks business group, a
company incorporated under the laws of Finland with its principal office at
Keilalahdentie 4, 02150 Espoo, Finland
AND
ENDWAVE CORPORATION, a company incorporated under the laws of the State of
Delaware, USA, with its principal office at 990 Almanor Avenue, Sunnyvale, CA
94085, USA.
CLAUSE 1
DEFINITIONS
For the purposes of this Agreement the following definitions shall govern (and
where the context so admits the singular shall include the plural and vice
versa):
"Affiliate"
of Nokia Corporation or Endwave Corporation shall mean an entity
(i) which is directly or indirectly controlling such Party;
(ii) which is under the same direct or indirect ownership or control as such
Party; or
(iii) which is directly or indirectly owned or controlled by such Party. For
these purposes, entity shall be treated as being controlled by another if that
other entity has fifty percent (50 %) or more of votes in such entity, is able
to direct its affairs and/or to control the composition of its board of
directors or equivalent body.
"Agreement"
shall mean this Purchase Agreement and all its Appendices as well as any
amendment or addenda that may subsequently be agreed upon in writing between the
Parties.
"Appendix"
shall mean a document that the Parties will, by mutual agreement, sign and
attach to this Agreement on the Effective Date or at any time during the term of
this Agreement. All Appendices shall be subject to the terms and conditions of
this Agreement. In the event of a conflict between the terms of an Appendix and
the terms of this Agreement, the terms of this Agreement shall prevail.
"Buyer"
shall mean Nokia Corporation and its Affiliates. The abbreviations "NET", "NTC"
and "Nokia" are also used as to identify Buyer in the Appendices and other
documents attached or referred to in this Agreement and in the daily
correspondence and communications between the Parties.
"Consumption"
means the moment when a Part is taken from [*] for Buyer's use, as defined in
detail in the Logistics Appendix.
"Delivery Date"
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shall mean the date on which Seller shall have successfully completed the
delivery of all the Parts, which meet all of the requirements set forth under
this Agreement, as ordered under the Order and/or as may be further defined
under the Logistics Appendix.
"Development Agreement"
shall mean that agreement dated September 9, 2003 between the Parties in
accordance with which Seller will design, develop, and/or test for Buyer's
approval certain new Parts that Buyer may elect to have Seller furnish to Buyer
under this Agreement.
"EDI Agreement"
shall mean an Electronic Data Interchange ("EDI") agreement, that the Parties
may elect to enter into, in which the Parties agree and define the use of EDI in
the purchase and sales of the Parts under this Agreement.
"Effective Date"
shall mean the date mentioned first above, i.e. the date of signing of this
Agreement.
"[*]"
shall mean [*] issued by the [*].
"Intellectual Property Rights"
shall mean patents (including utility models), design patents, mask work and
designs (whether or not capable of registration), chip topography rights and
other like protection, copyright, trademark and any other form of statutory or
common law protection of any kind and applications for any of the foregoing
respectively as well as any trade secrets.
"Lead Times"
shall mean the time period, which is mutually agreed in writing by the Parties,
from the date of issuing an Order to the Delivery Date of the ordered Parts to
Buyer. The maximum Lead Times are set forth in Appendix 5.
"Logistics Appendix"
shall mean the documents attached hereto as Appendix 5, which describe the
logistics procedures for forecasting, ordering, shipping and invoicing the
Parts. Each of Buyer's sites and/or Affiliates may create a Logistics Appendix
in conjunction with Seller in order to specify the procedures unique to that
particular site and/or Affiliate and which procedures are not otherwise covered
by the Purchase Agreement.
"Manufacturing Information"
shall mean Specifications and other technical and commercial documentation and
information, irrespective of its form, necessary for the manufacturing of
Part(s) by Supplier (including without limitation and as applicable, information
on Supplier's suppliers, sub-suppliers and subcontractors, from which it
procures Third Party Components (if any) and raw materials for Part(s) and its
contract manufacturers and other subcontractors participating in the
manufacturing of Part(s)).
"Nokia Bank Link Policy"
shall mean Nokia's centralized system for payments pursuant to which all
invoices maturing during a working week (i.e. Monday through Friday) are
consolidated and paid on one predetermined business day
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4.
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during that same week irrespective of the invoice due date. At the moment, the
payment day is Wednesday, but the payment day is subject to change by Nokia at
any time without notice.
"Nokia Direct Competitor"
shall mean [*]., or any other major company with a broad product portfolio whose
primary business is telecom infrastructure and in addition [*].
"Order"
shall mean a single purchase order submitted by Buyer to Seller.
"Part"
shall mean each individual mutually agreed object of the sale and purchase
hereunder, which Buyer may buy by issuing an Order or Spot Order to Seller. The
Parts are listed in Appendix 1.
"Party" and "Parties"
refer to Seller and/or Buyer.
"Quality Requirements"
shall mean the document that specifies the quality requirements to which all of
the Parts shall materially conform. The Quality Requirements are set forth in
Appendix 3.
"Seller"
shall mean Endwave Corporation.
"Spot Order"
shall mean a type of purchase order that Buyer may submit to Seller for delivery
directly to Buyer (i.e., not to the [*]), as further described in this
Agreement. Unless expressly noted otherwise, the term "Order" shall not include
"Spot Order."
"[*]" or "[*]"
means an [*] in a [*] or at [*], in which [*] and to which [*] the [*] to [*]
the [*] of the [*] by [*], as [*] in [*]. Delivery and purchase of the [*] be
[*] to take place [*] when [*] the [*] and the [*] to the [*]. The [*] shall
further [*] the [*] of and [*] and [*] the [*] model.
"Specifications"
shall mean the applicable requirements, agreed upon by Buyer and Seller in
writing, to which each of the Parts must strictly conform to in order for the
delivery of such Parts to be successfully completed. The Specifications are set
forth in the document entitled, "[*] GHz Integrated Microwave Module
Specifications"
"Tooling"
shall mean the moulds, casting moulds, manufacturing, testing and other tools,
drawings and technical documents, which Seller produces or which are produced
for him.
"Third Party Component"
shall mean any hardware and/or software component or part of any Part, to the
extent Intellectual Property Rights in the component are not (i) held by
Supplier or (ii) licensed to Supplier by Nokia.
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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5.
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CLAUSE 2
OBJECT OF THE AGREEMENT
2.1 Seller wishes to sell to Buyer and Buyer wishes to purchase from Seller,
in accordance with the terms and conditions hereof, certain Parts for
which Buyer may elect to place Orders or Spot Orders from time to time and
which are listed in Appendix 1 hereto and which are manufactured and/or
marketed by Seller in accordance with the Specifications. The Parties
further agree that all Buyer's purchase orders to Seller for the Parts
shall be made under the terms and conditions of this Agreement.
2.2 Those Affiliates of Buyer that agree in writing to the terms of this
Agreement may place Orders or Spot Orders for the Parts to Seller in their
own name and for their own account under the terms and conditions of this
Agreement.
CLAUSE 3
PARTS
3.1 The Parts to be supplied hereunder are listed in Appendix 1 hereto.
3.2 Each Part that Seller delivers hereunder must strictly conform to the
Specifications, the Quality Requirements and the Environmental
Requirements set forth under this Agreement.
3.3 With the exception of changes made to a Part by Seller pursuant to Clause
16 or Clause 19.7, any changes in the design or in the manufacturing
process of the Parts, which change may affect the quality, reliability,
interchangeability, availability, fit, form or function of the Parts, are
subject to Buyer's written approval given prior to the implementation of
any such change.
3.4 The Parties may, upon mutual agreement, amend Appendix 1 to include any
new item to, or to delete any item from, the definition of Parts.
3.5 The Parts are subject to US export regulations. Seller agrees to provide
Buyer, upon request, with all information necessary to accurately classify
the Parts under any applicable export regulations, including but not
limited to the US Bureau of Export Administration regulations.
3.6 Buyer may request that Seller label the Parts with serial numbers provided
by Buyer, and Seller may not unreasonably deny such request.
CLAUSE 4
PURCHASE ESTIMATES
4.1 The Parties hereto acknowledge that the purchase volumes set out in
Appendix 1 hereto, or in any estimates or other forecasts provided by
Buyer to Seller, are regarded as estimates only based on the best
assumptions of Buyer and they are provided for Seller's planning purposes.
Purchase estimates shall not be regarded as binding purchase orders under
any circumstances. Buyer shall be under no obligation to purchase any
specific quantity of the Parts from Seller, unless otherwise expressly
agreed in Appendix 1. Any actions taken by Seller based on such forecasts
shall be taken at Seller's risk.
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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6.
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4.2 The Buyer shall buy from the Seller and Seller agrees to sell the Buyer no
less than the minimum quantities of Parts set forth in Appendix 1.
CLAUSE 5
ORDERS
5.1 Buyer may place Orders or Spot Orders for the Parts by mail, by telefax,
by EDI in accordance with the EDI Agreement, or in any other mutually
agreed way.
5.2 The method of placing Orders and Spot Orders shall be governed by the
Logistics Appendix in respect of each of Buyer's sites and/or Affiliates.
However, if the Order or Spot Order placing method is not defined in the
Logistics Appendix, Seller shall forthwith and not later than five working
( 5) days from the receipt of the Order send Buyer an acknowledgement of
such Order or Spot Order. If such acknowledgement is not received by Buyer
within the above defined time period, the said Order shall be deemed to be
accepted by Seller and to be in force as such.
5.3 Seller shall use its best endeavours to supply the minimum number of
applicable Parts in accordance with the Logistics Appendix attached as
Appendix 5, and Seller shall use reasonable efforts to meet any quantities
exceeding such minimums.
5.4 In case Buyer's Order or Spot Order, Seller's confirmation of Order or
Spot Order or Seller's invoice contain terms and conditions, which are in
discrepancy with, or attempt to amend, or change in any way this
Agreement, such terms and conditions shall be regarded as null and void.
CLAUSE 6
PRICES
6.1 The prices, the validity period for such prices, and the discounts for the
Parts are provided in Appendix 1.
6.2 The Buyer reserves the right to request to renegotiate the prices at any
time.
6.3 All changes in prices shall become effective upon written agreement.
6.4 All prices are exclusive of all taxes and expressed in [*]. All duties,
levies and income taxes imposed by any governmental authorities of the
United States in respect of payments due herein shall be to the account
of, and the sole responsibility of Seller. All duties, levies and taxes
imposed by the authorities of any other jurisdiction in respect of
payments due herein shall be to the account of, and the sole
responsibility of, Buyer.
CLAUSE 7
TERMS OF PAYMENT
All payments under this Agreement shall be made [*] days from the date of
receipt of the Seller's invoice subject to Nokia Bank Link Policy. Buyer's
obligation to pay such invoice is conditional on the following:
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7.
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(a) Seller has delivered, in accordance with this Agreement, the full
quantities of the Parts requested in the respective Order or Spot Order
(and reflected in Seller's invoice);
(b) the delivered Parts strictly conform to the Specifications and the Quality
Requirements.
Buyer is entitled to withhold payment in respect of a delivery of the
Parts, which delivery is not fulfilled in accordance with the requirements
set forth under subClauses (a) and (b) above, until the delivery is
completed to comply with the said subClauses. Notwithstanding the above,
if partial delivery is accepted in writing by Buyer in accordance with
Clause 10.4 below, then Seller shall be entitled to invoice Buyer
accordingly and Buyer will pay such invoice within [*] days of its
receipt, subject to Nokia Bank Link Policy. In the event that payment is
not made within such [*] days, however, subject to the Nokia Bank Link
Policy, Buyer shall pay a penalty of [*] per cent per annum, not to exceed
the rate of [*] per cent per month, of the amount owed to Seller.
CLAUSE 8
TERMS OF DELIVERY AND PASSING OF TITLE
8.1 The terms of delivery are defined in accordance with [*] The terms of
delivery are [*], [*] facilities, unless otherwise agreed or provided in
the Agreement or the Logistics Appendix.
8.2 Delivery will be deemed to be complete upon Seller's delivery to a common
carrier at Seller's (or Seller's agent's) facilities ("Delivery"). Title
to the Parts shall pass to Buyer upon Delivery in case of a Spot Order or
upon Consumption in case of an [*]. The risk of loss will pass to Buyer
upon Delivery. Buyer will insure all Parts upon Delivery and until
Consumption, and will indemnify Seller for any damages, losses, or
liabilities due to damage to the Parts after Delivery and until
Consumption.
CLAUSE 9
PACKING
9.1 Seller's obligations for packing and packaging include, without
limitation, the following: (i) all Parts shall be packed and packaged by
Seller for protection during shipment, handling, and storage in strict
conformance with Buyer's written requirements as of the date of this
Agreement, , and otherwise in accordance with industry standard commercial
practice; (ii) highly polished, highly finished, or precision Parts or
those that might be sensitive to stresses of temperature or moisture, or
electro-static or electro-magnetic charges, are to be properly preserved
and packed in containers which will afford physical protection against any
damage and deterioration from those or any other causes. Any Parts packed
with nonconforming packing and/or packaging are, upon request of Buyer,
subject to rejection and repackaging at Seller's expense. The prices for
the Parts shall include the cost of packing and packaging in accordance
with Buyer's written requirements as of the date of this Agreement as
required to prevent any deterioration or damage to the Parts during
transportation and subsequent storage. Seller shall indemnify Buyer
against any damage that the Parts suffer due to nonconforming packaging
and/or packing.
9.2 Seller shall use reasonable efforts to use packing and packaging material
that can be recycled.
9.3 Further details on packing and packaging may be set forth in the Logistics
Appendix and/or in the Specifications.
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8.
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9.4 If Buyer directs Seller to mark or label any Parts with a trade name,
trademark, logo or service mark owned or licensed by Buyer ("Buyer
Identification"), Seller shall apply the marking or labeling only on the
quantity of Parts and in the manner specified in Buyer's written
instructions. Seller shall not sell nor otherwise dispose of, nor permit
the sale or disposal of, any Parts bearing any Buyer Identification
(including any reject Parts) to anyone other than Buyer without first
obtaining Buyer's express written consent and first removing all Buyer
Identification. Upon termination or expiration of this Agreement any
materials bearing Buyer's Identification shall be delivered to Buyer,
destroyed, or deconstructed, in Seller's sole discretion.
9.5 With reference to Clause 3.6 the packages shall bear the same serial
number as the corresponding Parts.
CLAUSE 10
DELIVERY TIMES
10.1 Subject to the provisions of this Clause 10, time shall be of the essence
in this Agreement.
10.2 The Delivery Dates, unless otherwise set forth in the Logistics Appendix,
shall be defined in the Order or Spot Order of Buyer, as acknowledged by
Seller. Any changes to the mutually agreed Delivery Date are subject to
the prior written approval of Buyer. The maximum Lead Times for the Parts
are specified in the Logistics Appendix.
10.3 Buyer is not obligated to take the Parts into its possession before the
agreed Delivery Date.
10.4 Partial deliveries are not allowed, unless expressly accepted in writing
on a case by case basis by Buyer prior to the respective delivery.
10.5 If Seller cannot deliver the Parts in accordance with the agreed Lead
Times and on the mutually agreed Delivery Date, then Seller shall as soon
as Seller becomes or should have become aware of the delay inform Buyer
thereof in writing. Such notice shall be entitled "Notice of Delay" and
signed by Seller, and shall also include:
(a) identification of which kind and what quantities of the Parts will
be delayed;
(b) the anticipated duration of delay for each kind and quantity;
(c) the cause(s) of the delay;
(d) the actions that Seller is taking and will take to remedy or shorten
the delay; and
(e) a proposal, for Buyer's approval, of a new Delivery Date for each
kind and quantity of the delayed Parts, together with a clear, firm
commitment to treat such new Delivery Date as contractual and to
make the deliveries by such date.
In order to avoid any delay in delivery, Seller shall use best efforts
(such as, but not limited to, expedited freight), at the cost of Seller,
to minimize the possible delay. The remedies provided in this Clause 10.5
and in 10.6 shall be Buyer's sole and exclusive remedies, and Seller's
sole and exclusive obligations, for any late delivery of Parts.
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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AMENDED.
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10.6 If Buyer does not agree with Seller's proposal for the new Delivery Date
submitted in accordance with Clause 10.5 above, and if the respective
delivery of the Parts is delayed [*] business days or more from the agreed
Delivery Date due to reasons other than an Event of Force Majeure (as set
forth below in Clause 21), then Buyer shall have the right to terminate
the respective delivery without any liability to Seller.
CLAUSE 11
RE-SCHEDULING AND CANCELLATION
11.1 Unless otherwise agreed in the Logistics Appendix, Buyer may, without any
liability to Seller, by written notice sent to Seller not less than [*]
weeks prior to the intended Delivery Date, re-schedule the respective
delivery to take place within [*] months following the intended Delivery
Date.
11.2 Unless otherwise agreed in the Logistics Appendix, Buyer may, without any
liability to Seller, by written notice sent to Seller not less than [*]
weeks prior to the intended Delivery Date, cancel the respective delivery
for its convenience upon a written notice thereof to Seller.
CLAUSE 12
INSPECTIONS
12.1 Buyer may inspect the Parts upon delivery or receipt at the [*] location
to ascertain correct quantities and whether there exists any visible
damage or deviation from the Order or Spot Order in the Parts delivered.
In such case Buyer is entitled to treat the Order or Spot Order as
discharged either in whole or in part. If Buyer rejects a Part for
noncompliance with the Specifications or the Quality Requirements, Seller
agrees to replace such damaged or incorrect Part and deliver a replacement
Part in order to meet the correct quantities without delay. Such
replacement and/or additional deliveries shall be completed and invoiced
within [*] hours (or within the time period specified in the Logistics
Agreement) from the receipt by Seller of Buyer's written notice. Buyer has
the right to deduct the value of Parts that are rejected (and not
replaced) or undelivered from Seller's invoice, and Buyer shall provide
Seller with a corresponding debit note. If Buyer has paid for the rejected
(and not replaced) Part, Seller shall on the request of Buyer provide a
corresponding credit note. Upon Seller's request, Buyer shall provide its
inspection report to Seller without delay. Buyer shall keep any rejected
Parts available for Seller for [*] weeks from the date of inspection,
unless otherwise agreed upon between the Parties. Any return of the Parts
shall be made at Seller's expense. If Buyer does not reject any Part, as
provided in this Clause 12.1, within [*] days from Delivery (in case of a
[*] or Consumption (in case of Order - [*]), the part will be deemed to be
accepted.
12.2 Any acceptance of the Parts by Buyer, with or without inspection, shall
not reduce Seller's responsibility to warrant that the Parts meet the
Specifications and Quality Requirements. Acceptance of the Parts shall not
limit Buyer's right to make warranty claims relating to the Parts or to
complete deliveries.
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
10.
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CLAUSE 13
QUALITY REQUIREMENTS
13.1 Seller warrants that it shall manufacture the Parts strictly in accordance
with the Specifications. Seller also warrants that it shall at all times
materially adhere to the Quality Requirements and the workmanship
standards set forth in Appendix 3 hereto. Seller shall be responsible for
taking preventive and corrective actions to ensure continuity of
compliance with Specifications, Quality Requirements and workmanship
standards.
13.2 Seller shall provide a list [*] of the Parts prior to the beginning of the
serial production phase. [*], which shall not be unreasonably withheld or
delayed. Seller shall always remain responsible for the supply of such
subcontractors.
13.3 [*].
CLAUSE 14
AVAILABILITY OF THE PARTS AND DISCONTINUATION OF PRODUCTION
14.1 Buyer shall at least [*] months prior to the end of this Agreement provide
Seller with a notice whether Buyer desires to renew the Agreement or place
an end-of-life Order. In case of an end-of-life Order, Such Parts shall be
delivered in one or more partial deliveries, in accordance with Buyer's
Orders, within [*]months from the end of the Agreement.
CLAUSE 15
FACILITY SURVEYS
15.1 Buyer reserves the right, by itself or through its appointed
representative, during regular business hours and following reasonable
notice to Seller, to inspect Seller's physical facilities or quality
control procedures, or to conduct environmental management system audits,
both prior to the first delivery of the Parts under this Agreement and
periodically thereafter, in order to verify compliance with the
Specifications, Quality Requirements, and other standard industry
practices and procedures. Seller shall afford a similar inspection right
to Buyer's customers upon request. Such survey shall be subject to a prior
written Non-Disclosure Agreement.
Seller shall maintain quality control procedures mutually agreed upon by
the Parties as a result of such facility survey. In the event that Buyer
determines during any facility survey, that the quality procedures applied
by Seller are insufficient as to ensure consistent production of Parts
which are strictly in conformance with Specifications and the Quality
Requirements, then Buyer shall specifically inform Seller thereof and
recommend corrective measures to be undertaken by Seller. Seller hereby
agrees to work together in good faith with Buyer to establish mutually
agreeable corrective actions. [*]
15.2 Seller agrees that it shall deliver to Buyer, within [*] days from the
Effective Date of the Agreement, a detailed disaster recovery plan (the
"Recovery Plan"). The Recovery Plan shall define the actions Seller shall
take to resume production of the Parts as soon as possible after damage to
or destruction of Seller's factory or other facilities, or machinery,
personnel, software, documentation and/or supply management. Such events
include, without limitation, fire, water damage, flood, main power
shortage, power surges or spikes, computer system failure,
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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11.
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earthquake and Events of Force Majeure. The Recovery Plan shall also
include alternative processes for resuming production of the Parts by
opening an alternative facility or setting up the necessary equipment and
assembly lines in an existing factory of Seller and/or of its Affiliates.
Seller agrees that should any of the events referred to in this Clause
15.2 or in Clause 21 of the Agreement occur, it shall promptly implement
the steps detailed in the Recovery Plan to the full extent and shall take
all other necessary measures to resume the performance of its obligations
under this Agreement in the shortest time possible.
CLAUSE 16
WARRANTIES
16.1 Seller hereby gives a warranty for each Part delivered to receiver's
facility under this Agreement for a period of [*] months from the Delivery
of the respective Part ("Warranty Period"). The warranty provided
hereunder shall include that each Part initially delivered under Clause 8
shall:
16.1.1 Upon delivery, be new, unused and in good working order; and
16.1.2 Be free from all defects (including without limitation, defects
in materials, and/or workmanship), excluding defects in design as
provided by Buyer; and
16.1.3 Be of the highest quality required by the Specification and the
Quality Requirements, and strictly conform to the Specifications
and the Quality Requirements.
Any breach or non-conformance with or deviation from the warranty set out
in Clause 16.1 shall be referred as "Defect" in this Agreement.
16.2 Seller shall repair or replace, at its own option and cost and without
delay, all Defects in the Parts delivered under the Agreement that appear
within the Warranty Period.
If the remaining Warranty Period for the repaired and/or replaced Part is
[*] from the date of Delivery of the repaired or replaced Part. However,
the Warranty Period for any specific Part shall not be extended, as
provided in the prior sentence, more than once.
16.3 If the Parties mutually agree on case by case basis that Buyer shall
undertake the repair or replacement of a Defect in a Part on behalf of
Seller, Seller shall compensate Buyer for [*]
16.4 If a [*] which (a) [*] from [*] and (b) [*] with [*] or [*] or [*]
[*] the [*] of the [*], and [*] and [*] for the [*]
[*] for [*] under this Clause 16.4, [*] For purposes of this Clause, [*]
under this Clause 16.4 [*]
[*] means [*] that [*] and thereafter [*] and [*] the [*] the [*] the [*]
and [*] the [*] would [*] the [*] [*] at the [*] and [*] and [*] for [*]
by [*] Each [*] is [*] or an [*] the [*]
The agreement [*] and [*] this Clause 16.4 and [*]
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
12.
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If [*] or [*] within [*] by the [*] the [*] of the [*] based on [*] from
the [*] In such [*] to [*] and/or [*]
This Clause 16.4 sets forth [*] and [*] with respect to [*]
16.5 Notwithstanding any conflicting provision in this Agreement (except Clause
16.4), Seller's sole and exclusive obligation, and Buyer's sole and
exclusive remedy, for breach of any of Seller's warranties under this
Agreement will be, at Seller's option, to (a) repair the defective Part to
correct the defect; (b) replace any such Part at no additional charge; or
(c) accept the return of any such Part and issue a refund equal to the
purchase price of such defective Part.
16.6 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTS ARE PROVIDED
"AS IS" WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND AND SELLER DISCLAIMS
FOR ITSELF AND ON BEHALF OF ITS SUPPLIERS ALL OTHER WARRANTIES,
CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
CLAUSE 17
LIABILITY
17.1 Seller shall defend, indemnify and hold Buyer and its officers, directors
employees and customers harmless from and against all damage, claims,
demands, suits, proceedings, damages, costs, expenses and liabilities,
including without limitation, reasonable legal fees brought against Buyer
by an unaffiliated third party for
(i) injury to persons, including death; and/or
(ii) loss or damage to any property; and/or
any other liability resulting from any acts or omissions of Seller in the
performance of this Agreement and/or a failure of the Parts to conform to
the Specifications and the Quality Requirements. Seller shall maintain in
force and upon request give evidence of adequate insurance covering its
potential liability under this Clause 17.1. Buyer shall on its behalf
indemnify and hold Seller Buyer and its officers, directors employees and
customers harmless from and against all damage, claims, demands, suits,
proceedings, damages, costs, expenses and liabilities, including without
limitation, reasonable legal fees brought against or incurred by Seller
for
(iii) injury to persons, including death; and/or
(iv) loss or damage to any property; and/or
(v) any other liability
resulting from any acts or omissions of Buyer in the performance of this
Agreement.
Without prejudice to the generality of the above, Seller shall maintain on
a continuous basis a product liability insurance (or a general liability
insurance which includes coverage for product liability) with an insured
amount of not less than [*] per each occurrence. If the sales of the Parts
under this Agreement include sales to Nokia's US affiliates, Seller shall
further maintain on a continuous basis an insurance in accordance with
Appendix 7.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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As a condition to such indemnification, each indemnitee shall (i) give the
indemnitor notice of the relevant claim; (ii) cooperate with the
indemnitor, at the indemnitor's expense, in the defense of such claim; and
(iii) give the indemnitor the right to control the defense and settlement
of such claim subject to Clause 17.3 below.
17.2 Neither Party shall be liable to each other in contract, tort or
otherwise, whatever the cause thereof, for any indirect, special, punitive
or consequential damage, including but not limited to loss of business or
goodwill, loss of revenue or loss of profits, howsoever arising under or
in connection with this Agreement, except in cases of intentional
misconduct or gross negligence. For the purposes of this Clause 17.2 gross
negligence shall mean willful default in the United Kingdom.
17.3 Seller shall use counsel reasonably satisfactory to Buyer to defend
indemnification claims under Clause 17.1 or Clause 19.7 (each a "Claim").
If Buyer reasonably determines that any Claim or any proposed Claim
settlement might adversely affect any Buyer indemnitees, Buyer may take
control of the investigation, defense and/or settlement of the Claim at
Buyer's risk and expense. If Buyer elects to do so, Buyer and its
attorneys shall proceed diligently and in good faith. Seller will not
agree to a settlement of any Claim prior to a final judgement thereon
without the prior written consent of Buyer, which consent shall not be
unreasonably withheld.
Notwithstanding the indemnifying party's primary right to have control
over defense, the indemnitee may take all necessary steps, at the expense
of the indemnifying party, to defend itself until the indemnifying party,
to the reasonable satisfaction of the indemnitee, assigns a counsel and
initiates defense in a professional manner, and the indemnifying party
agrees to fully cooperate with such defense.
CLAUSE 18
ENVIRONMENTAL MANAGEMENT AND COMPLIANCE WITH LAWS
18.1 Seller shall comply with the principles of the Business Charter for
Sustainable Development (published by the International Chamber of
Commerce in 1991) for environmental management. Buyer encourages the
adoption of the principles therein by Seller and its subsuppliers and
subcontractors. Buyer may, where appropriate, request improvements in
Seller's practices to ensure compliance with the said principles and the
Nokia Supplier Requirements for the environment.
Seller shall be committed to ethical conduct and respect for human rights
in the spirit of internationally recognized social and ethical standards,
e.g. SA8000. Seller further agrees to monitor the ethical performance of
its suppliers and subcontractors and take prompt steps in cases where
ethical performance of its suppliers or subcontractors comes into
question.
18.2 Seller shall inform Buyer on request, of all substances and compounds by
weight in the Parts supplied as set out in Appendix 8 Mandatory
Environmental Requirements.
Seller further shall, upon request, provide Nokia with instructions for
disassembly, re-use and end-of-life treatment of the Parts, and with any
other information that Nokia may need (and request in writing) based on
statutory requirements.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
14.
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Seller shall in designing of the Parts and in manufacturing and delivery
of the Parts strictly comply with the Environmental Requirements and the
schedule set forth in Appendix 6 of this Agreement. Seller warrants that
each Part that Seller delivers hereunder strictly conforms to such
requirements. In case any Part does not strictly conform to the
Environmental Requirements as they exist at the time of delivery, and
where the law requires selective end-of-life treatment for such Parts,
Seller shall reimburse Buyer for any Additional Processing Costs incurred
by Buyer in connection with Buyer's selective end-of-life treatment for
such Parts up to the Reserve Cap (as that term is defined in Clause 16.4)
available at the time of the end-of-life treatment. "Additional Processing
Costs" means the costs that are in excess of the costs that would have
been incurred by Buyer if the applicable Parts would have been in
conformance with the Environmental Requirements.
This Clause 18.2 sets forth Seller's sole and exclusive obligation, and
Buyer's sole and exclusive remedy, with respect to any end-of-life
treatment of the Parts.
18.3. Seller has implemented an environment management system (EMS) based on the
basic principles of ISO 14001 standard by January 1, 2002.
18.4. Seller agrees that Seller shall in the manufacturing of the Parts
diligently follow all applicable laws, statutes and regulations.
CLAUSE 19
MANUFACTURING RIGHTS, INTELLECTUAL PROPERTY RIGHTS AND TOOLING
19.1 [*]
[*]after the effective date of this Agreement, Nokia and Seller will enter
into a [*] with a [*] selected [*] (the [*]). Pursuant to the [*], Seller
will promptly deposit with the [*] shall, upon request, demonstrate to the
reasonable satisfaction of Nokia that the contents do comply with said
requirements.
19.2 Trigger Events
Under the terms of the Escrow Agreement, Nokia will have the right to
obtain the Manufacturing Information in the event that any of the
following events (each, a "Trigger Event") occurs:
(1) a [*] by [*] a [*] under [*], which [*] is [*] within [*], which
[*], in a [*] the [*] to the [*] and [*] the [*] to be [*]
(2) Seller (A) becoming insolvent, filing for any form of bankruptcy or
re-organization proceedings, making any assignment for the benefit
of creditors, having a receiver, administrative receiver or officer
appointed over the whole or a substantial part of the assets or
ceasing to conduct any material part of its business relating to any
Product(s), and (B) in connection with any of the foregoing Seller
breaches its obligation to accept and fulfill orders for Parts under
this Purchase Agreement, which breach is not duly remedied within a
[*], which [*], in a [*] the [*] to the [*] and [*] the [*] to be
[*].
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
15.
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(3) a material change in ownership in or effective control over Seller
(A) resulting in any Nokia Direct Competitor obtaining control over
the Seller, and (B) where such Nokia Direct Competitor refuses to
accept and fulfill orders for Parts in material breach of the terms
of this Purchase Agreement.
19.3 Manufacturing License
In the event of a Trigger Event, Seller grants to Nokia and its Affiliates
a world-wide, non-transferable and royalty free license and right, without
the right to sublicense, under all Intellectual Property Rights of Seller
, (i) to modify Parts(s) or have the Parts(s) modified (provided, however,
that [*] and [*] from and [*] and [*] by [*] where [*] and [*] are [*] to
[*], and (ii) and manufacture, have manufactured, make, have made, use,
sell, offer to sell, and import such Part(s) ("the Manufacturing
License"). For the avoidance of doubt, Nokia may use any Manufacturing
Information for such purposes provided, however, that Nokia shall treat
such Manufacturing Information as Seller's Information under Clause 20 -
Confidentiality. In addition to such license, Seller shall also provide
[*] in getting [*] from which it [*]
Nokia hereby covenants and agrees that the Manufacturing License shall
only be exercisable if and when a Trigger Event occurs. Nokia hereby
further covenants and agrees that if a Trigger Event occurs and (i)
thereafter the Seller has been able to cure its breaching situation
mentioned in Clauses 11.2 (1) - (3) for a continuous period of [*], and
(ii) the Seller has the capability to accept and fulfil orders for
Products under the Purchase Agreement, and (iii) the Seller agrees to
purchase from Nokia any raw materials or Third Party Components that Nokia
has purchased and committed to in order to exercise its rights under the
Manufacturing License, then Nokia will purchase Products from Seller under
the Purchase Agreement and Nokia's right to exercise the Manufacturing
License shall terminate. Upon termination of Nokia's right to exercise
[*], Nokia shall return [*]
19.4 The Parties hereby agree, that in case the Specifications are provided by
Buyer based on design which is proprietary to Buyer, in whole or in part,
then Seller shall not have any right pursuant to this Agreement to
manufacture and/or sell or license the Parts to third Parties or otherwise
utilize Buyer's confidential information without the prior written consent
of Buyer. The foregoing will not limit Seller's right to design,
manufacture, or sell any products that are independently designed without
the use of Buyer's confidential information.
19.5 Ownership of the copyright in all drawings, specifications, manuals,
documents, data, software and other material provided by one Party hereto
to the other under this Agreement shall remain with the Party first
referred to above, but the receiving Party, which shall include it's
Affiliates in the case of Buyer, shall be deemed to have the right to use
such copyright for the performance of the Agreement hereunder.
19.6 Seller represents and warrants that (i) the Parts are delivered free from
any lien, security or interest and title when conveyed to Buyer is good
and valid and the transfer rightful, and (ii) Seller is not subject to any
restriction, agreement, contract, commitment, law or judgement/order which
would prohibit or be breached or violated by Seller's execution, delivery
and performance of this Agreement and its obligations hereunder.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
16.
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19.7 Seller shall settle and/or defend at its own option and its own expense
and indemnify and hold Buyer harmless from any cost, expense, loss,
attorney's fees or damage arising out of any third party claim, demand,
suit or proceedings against Buyer or any customer of Buyer to the extent
such claim, demand, suit or proceedings alleges that the Parts infringes
upon any Intellectual Property Rights of any third party, provided that
(1) Buyer informs Seller in writing of any such claim, demand, proceedings
or suit without delay, (2) Seller is given control over the defense
thereof and Buyer reasonably cooperates in the defense at Seller's
expense, and (3) Buyer will not agree with the third party to the
settlement of any such claim, demand, proceedings or suit prior to a final
judgement thereon without the prior written consent of Seller, which
consent shall not be unreasonably withheld. Buyer shall have the right to
select its own counsel to participate in any such defense at Buyer's own
expense. This indemnification does not apply to the extent that: (1)
infringement arises by a combination made by Buyer or a customer of Buyer
to whom Buyer has supplied the Parts, of Parts furnished under this
Agreement with other products not furnished hereunder by Seller except to
the extent Seller is a contributory infringer, (2) infringement arises
solely from changes or modifications made to or from the Parts by Buyer or
Buyer's customer; (3) infringement arises from Parts that are made in
accordance with drawings, samples or manufacturing specifications
designated by Buyer and Seller proves that such infringements arise solely
from such drawings, samples or manufacturing specifications designated by
Buyer.
If a claim, demand, suit or proceeding alleging infringement is brought or
Seller believes one may be brought, Seller shall have the option, at its
expense, to (1) modify the Parts to avoid the allegation of infringement,
while at the same time maintaining compliance of the Parts with the
requirements set forth under this Agreement, (2) replace the Parts with
non-infringing but equivalent Parts, which comply with requirements set
forth under this Agreement; or (3) obtain for Buyer, at no cost to Buyer a
license to continue using and exploiting the Parts in accordance with this
Agreement free of any liability or restriction.
In the event any Part to be furnished under this Agreement is to be made
in accordance with drawings, samples or manufacturing specifications
designated by Buyer and to the extent such Part is not the design of
Seller, Buyer agrees to settle and/or defend, at its own option and its
own expense and indemnify and hold Seller harmless from any cost, expense,
loss, attorney's fees or damage arising out of any claim, demand, suit or
proceedings against Seller to the extent such claim, demand, suit or
proceedings alleges that such Part or drawings, samples or manufacturing
specifications designated by Buyer infringes upon any Intellectual
Property Right of any third party, provided that (1) Seller informs Buyer
in writing of any such claim, demand, proceedings or suit without delay,
(2) Buyer is given control over the defense thereof and Seller reasonably
cooperates in the defense at Buyer's expense, and (3) Seller will not
agree with the third party to the settlement of any such claim, demand,
proceedings or suit prior to a final judgement thereon without the prior
written consent of Buyer, which consent shall not be unreasonably
withheld. Seller shall have the right to select its own counsel to
participate in any such defense at Seller's own expense. This
indemnification does not apply to to the extent any infringement or any
claim of infringement results from changes or modification made by Seller
or on behalf of Seller to the drawings, samples, manufacturing
specifications or any other information designated by Buyer.
The foregoing indemnification obligations are Buyer's sole and exclusive
remedy, and Seller's entire liability, for any claims of infringement of
intellectual property rights by the Parts or by Seller.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
17.
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CLAUSE 20
CONFIDENTIALITY
20.1 Each Party ("Receiving Party") shall not disclose to third parties (other
to independent contractors, advisors, and consultants who are under a duty
of confidentiality no less protective than the provisions in this Clause
20 or as otherwise provided in this Clause 20) nor use for any purpose
other than for the proper fulfillment of this Agreement any technical or
commercial information ("Information") received from the other Party
("Disclosing Party") in whatever form under or in connection with this
Agreement without the prior written permission of the Disclosing Party
except information which
a) is in the public domain at the time of disclosure or later becomes
part of the public domain through no fault of the Receiving Party;
or
b) was known to the Receiving Party prior to disclosure by the
Disclosing Party as proven by the written records of the Receiving
Party; or
c) is disclosed to the Receiving Party by a third party who did not
obtain such Information, directly or indirectly, from the Disclosing
Party; or
d) was independently developed (by personnel having no access to the
Information) by the Receiving Party.
20.2 Seller hereby expressly agrees, that the use of Buyer as reference, and/or
the use of Buyer or reference to Buyer in the marketing or in any
materials or activities of Seller in any way is strictly forbidden. Any
statements, announcements and/or press release of this Agreement or part
thereof, or of the relationship herein described, shall not be made by
Seller without a prior written acceptance of Buyer given on case by case
basis. Notwithstanding the foregoing, (a) Seller may disclose the terms of
the Agreement and refer to Buyer as a purchaser of Parts to the extent
required by legally required disclosures, including Securities and
Exchange Commission rules, (b) Seller may disclose the terms of this
Agreement to its attorneys, financial advisors, and consultants subject to
nondisclosure obligations, and (c) Seller may disclose the terms of this
Agreement to a third party that is evaluating a majority investment in, or
merger with or acquisition of, Seller, if Seller first enters into a
written nondisclosure agreement with such third party that permits
disclosure of the terms of the Agreement solely to such third party's
outside attorneys, financial advisors, and consultants.
20.3 The provisions of this Clause 20 shall be valid for [*] from the date of
disclosure.
20.4 Any Non-Disclosure Agreement(s) entered into between the Parties prior to
the Effective Date of this Agreement shall remain to be valid, in
accordance with its terms and conditions, in respect of the Information
disclosed by either Party before the Effective Date of this Agreement, and
in respect of the Information disclosed outside the scope of this
Agreement.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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CLAUSE 21
EVENTS OF FORCE MAJEURE
21.1 Neither Party shall be liable to the other for any delay or
non-performance of its obligations hereunder in the event and to the
extent that such delay or non-performance is due to an event of Force
Majeure. The Party affected by an event of Force Majeure shall inform the
other Party in writing without delay of its occurrence, probable duration
and cessation.
21.2 Events of "Force Majeure" are events beyond the control of the Party which
occur after the date of signing of this Agreement and which were not
reasonably foreseeable at the time of signing of this Agreement and whose
effects are not capable of being overcome without unreasonable expense
and/or loss of time to the Party concerned. Events of Force Majeure shall
include (without being limited to) war, civil unrest, acts of government,
natural disasters, fire, flood, earthquake, explosions and Acts of God.
21.3 The Party affected by an event of Force Majeure shall immediately take any
necessary measures in order to limit and minimize the effect of such an
event on the performance of its obligations under this Agreement,
including but not limited to the fulfillment of the disaster recovery plan
in accordance with Appendix 4.
21.4 The Party appealing to the occurrence of an event of Force Majeure is
under obligation to prove, upon request, its effect on the performance of
the said Party's obligations under this Agreement.
21.5 In the event that the delay or non-performance of either Party hereto
continues for a period of [*] months due to events of Force Majeure, then
either Party shall have the right to terminate this Agreement with
immediate effect without liability towards the other Party.
CLAUSE 22
EFFECTIVE DATE AND TERM
22.1 This Agreement shall become valid and effective on the Effective Date and
shall remain valid until December 31, 2005.
22.2 The termination of this Agreement in accordance with Clause 22.1 above
shall not affect the delivery of the Parts, in accordance with the terms
and conditions hereof, which have been ordered and confirmed prior to the
termination.
22.3 The obligations set forth in Clauses 7 (with respect to payments that have
not been made), 8, 16 (Warranty) (including also Appendix 4), 17
(Liability), 18.2, 18.3, 19, 20, 24, 25.2 and 25.3 shall survive any
expiry, cancellation or termination of this Agreement.
CLAUSE 23
REPORTABLE EVENTS AND TERMINATION FOR DEFAULT
23.1 Without prejudice to Seller's other obligations and Buyer's rights under
this Agreement, Seller shall without delay notify Buyer if Seller finds or
suspects that any of the following events is about to occur or appears
imminent: delay in delivery, circumstances that may adversely affect the
performance of Seller's (including without limitation its
subcontractors/subsuppliers)
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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obligations hereunder, infringement of third party Intellectual Property
Rights, or any other action, omission or development which would
reasonably be considered to be important for Buyer to be aware of in order
to take precautions to prevent such from causing an adverse effect to its
business, reputation, production schedule, or product quality.
23.2 In the event that a Party hereto is in default of a material obligation
under this Agreement and fails to remedy such default within a reasonable
time period fixed by the non-defaulting Party (which period shall not be
less than [*] days) in a written notice drawing the attention of the
defaulting Party to the default and requiring the same to be remedied,
then the non-defaulting Party shall have the right to terminate this
Agreement with immediate effect after the expiry of the period fixed. In
the event of bankruptcy, receivership or comparable procedure under
applicable Bankruptcy Ordinance of a Party hereto or if the default is not
capable of being remedied, or in case of a change in control of Seller in
which a [*] purchases all of the shares of Seller, then the non-defaulting
Party may terminate this Agreement forthwith.
23.3 The termination of this Agreement in accordance with Clause 23.2 above
shall also terminate the carrying out of any outstanding Orders or Spot
Orders, whether confirmed or not.
CLAUSE 24
GOVERNING LAW AND SETTLEMENT OF DISPUTES
24.1 This Agreement shall be governed by the laws of Switzerland without regard
to its conflict of laws principles, as if wholly performed therein. The
United Nations Convention on Contracts for the International Sale of Goods
does not apply to this Agreement. The parties agree that any and all
disputes arising out of or in connection with this Agreement shall be
finally settled in arbitration by three neutral arbitrators appointed by
the International Chamber of Commerce ("ICC") and shall be conducted
pursuant to the ICC's regulations then in force. The arbitration
proceedings shall be conducted in Geneva, Switzerland.
24.2 All arbitration proceedings and all discovery related thereto shall be
conducted in the English language. Subject to the limitations on liability
set forth in this Agreement, the arbitrators may fashion any legal or
equitable remedy. The arbitration award shall be executable and final, and
binding on the Parties.
24.3 In the event of a breach, threatened breach or likely breach of this
Agreement, nothing contained in this Agreement to the contrary shall bar
the non-breaching Party from seeking injunctive relief in a court of
competent jurisdiction.
CLAUSE 25
FINAL PROVISIONS
25.1 Neither Party shall assign or transfer to any third Party, without a prior
written consent of the other Party, which consent will not be unreasonably
withheld, this Agreement or any of its share or interest therein; on
condition that the assigning Party shall remain fully responsible towards
the other Party for the proper fulfillment of this Agreement. Such consent
shall not be unreasonably withheld in case of assignment to an Affiliate
of the assigning Party, on condition that the assigning Party shall remain
fully responsible towards the other Party for the proper fulfillment of
this Agreement.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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25.2 This Agreement contains the entire understanding between the Parties in
respect of this matter and all previous correspondence, memoranda, minutes
of meetings, offers, enquiries and other documents exchanged between the
Parties prior to the date of this Agreement shall be cancelled and
superseded by this Agreement. For the avoidance of doubt; this Purchase
Agreement supersedes the Purchase Agreement number 1201000 dated 7.11.2000
with Appendixes and the extension agreement dated September 9th, 2002
25.3 In addition to this Agreement, the following documents are hereby made
Parts of this Agreement:
Appendix 1 The Parts, Prices, Discounts and Price Validity
Appendix 2 Intentionally Omitted
Appendix 3 Quality Requirements and Workmanship Standards
Appendix 4 Warranties and Support
Appendix 5 Logistics Appendix
Appendix 6 Not available
Appendix 7 Product Liability Insurance
Appendix 8 Mandatory Environmental Requirements
In case of any discrepancies between the above documents, the text of this
Agreement document shall always prevail over any of the Appendices hereto.
25.4 Any modifications, alterations, additions or amendment to this Agreement
(excluding the Appendices) shall be valid only if signed by both Parties
and expressly marked "Amendment to the Purchase Agreement". Any Appendices
may be modified, altered, added or amended by a written agreement between
the Parties.
25.5 The following persons shall act as the representatives of the Parties
regarding notices, performance, extension, termination and changes in
respect of this Agreement:
REPRESENTING THE BUYER REPRESENTING THE SELLER
Name: [*] Name: [*]
Address: [*] Address: [*]
Telephone: [*] Telephone:
25.6 The Parties further agree, that in case any subsupplier, subcontractor
and/or distributor of Buyer wishes to purchase Parts from Seller to be
used in the manufacture of products for Buyer, then Seller agrees to
negotiate in good faith with such subsupplier, subcontractor and/or
distributor.
25.7 No failure or delay of either Party in exercising its rights hereunder
(including but not limited to the right to require performance of any
provision of this Agreement) shall be deemed to be a waiver of such rights
unless expressly made in writing by the Party waiving its rights.
25.8 In the event that any provision of this Agreement shall be held invalid as
contrary to any applicable law, statute or regulation in that regard, the
invalidity of such provision shall in no way affect the validity of any
other provision of this Agreement and each and every provision shall be
severable from each and every other.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
21.
Purchase Agreement 1201000 22/23
6.0.0, 2/2000/TT
CONFIDENTIAL
25.9 The headings used in this Agreement are inserted for convenience only and
shall not affect the interpretation of the respective provisions of this
Agreement. This Agreement shall not be construed more or less strictly
against either Party for its participation or lack thereof in its
drafting.
25.10 The Parties shall be deemed independent contractors hereunder. This
Agreement is not intended to create a partnership, franchise, joint
venture, agency, or employment relationship between the Parties. Unless
otherwise agreed in writing by the Parties, neither Party shall make any
express or implied agreements, warranties, guarantees, commitments or
representations, or incur any debt, in the name or on behalf of the other
Party. There are no intended third party beneficiaries to this Agreement.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
22.
Purchase Agreement 1201000 23/23
6.0.0, 2/2000/TT
CONFIDENTIAL
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their
duly authorized representatives.
SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF
NOKIA CORPORATION ENDWAVE CORPORATION
NOKIA NETWORKS
/s/ [*] /s/ [*]
- ----------------------------------- ------------------------------------
Name:[*] Name:[*]
Title: [*] Title:[*]
Date: 31.12.2003 Date: 12/31/03
Place: Espoo Place: Espoo
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
23.
APPENDIX 3
QUALITY REQUIREMENTS AND WORKMANSHIP STANDARDS
1. Quality System Requirements
Product design, manufacturing processes and their development shall follow
the guidelines of the Endwave Quality System, which shall meet at a
minimum, the applicable requirements of ISO 9001, Nokia Supplier
Requirements, and Nokia specific requirements as set forth in this
Appendix.
Endwave permits system and process audits at their premises with reference
to deliveries and related processes at any reasonable and pre-arranged
time required by Nokia.
2. Design Changes, Process Changes, and Change Management
With the exception of changes made to a Part by Seller pursuant to Clause
16 or Clause 19.7 of the Agreement, any changes in the design or in the
manufacturing process of the Parts, which change affects the quality,
reliability, interchangeability, availability, fit, form or function of
the Parts, are subject to Buyer's written approval given prior to the
implementation of any such change.
Prior to making such a change, Seller will submit an "Engineering Change
Request" (or "Engineering Change Note") to Buyer for Buyer's approval,
which will not be unreasonably withheld or delayed. Prior to granting such
approval, Buyer may reasonably require Seller to submit samples of the
Part with the proposed change.
3. Quality Planning Activities
A Project Plan shall be prepared prior to any major design change,
manufacturing change or corresponding development activity. Any such
Project Plan shall be brought to Nokia's attention. The Project Plan shall
include all Nokia Networks APQP requirements set forth by Nokia.
Endwave shall ensure that all resources responsible for the Project Plan
activities are available during the project and that all activity planning
is in compliance with Nokia's targets. Endwave is responsible for
reviewing the Project Plan status on a regular basis and updating it as
necessary. Any deviations from the plan shall be notified to Nokia.
4. Continuous Quality Improvement
The target for service, design, and product delivery shall be defect free
operations.
Endwave shall generate plans for achieving such targets. These plans shall
be available for Nokia review upon request.
Endwave shall continuously monitor the improvement targets to verify the
effectiveness of the improvement plans. Endwave shall be able to
demonstrate verification of results.
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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AMENDED.
5. Control Plan
All key process control parameters and key product characteristics shall
be documented in product and product line specific Control Plans
(including Control Plans of subcontractors),which shall be available to
Nokia upon request. Endwave shall update these Control Plans to
continuously reflect the current manufacturing situation. The Control
Plans shall form one basis for targeting specific continuous quality
improvements.
6. Off-line Reliability Testing
[*]
7. Quality Inspection
Endwave shall deliver Parts in accordance with the quality requirements
and standards set forth in Clause 10 of this Appendix. The LOCAL BUYER is
entitled to perform incoming quality inspection on the Parts before they
are received to the consigned inventory and to return Parts that do not
meet the Specifications or the Quality Requirements to Endwave as provided
in the Purchase Agreement.
The LOCAL BUYER is entitled to perform quality inspection on the Parts as
they are taken from the consignment stock for Nokia production and to
return the Parts to Endwave if they are found not to meet the
Specifications, the Quality Requirements or the Environmental
Requirements.
If any Parts that do not meet the Specification, the Quality Requirements
or the Environmental Requirements are found in production at LOCAL BUYER,
the LOCAL BUYER is entitled to exchange any such Part for a compliant Part
from the consignment stock at any time upon notice to Seller.
8. Reporting
Endwave shall submit the following reports to Nokia on a continuous basis
or upon request:
REPORT / DOCUMENT FREQUENCY / DEADLINE
- ------------------------------------------
[*] [*]
- ------------------------------------------
[*]) [*]
- ------------------------------------------
[*] [*]
- ------------------------------------------
[*] [*]
- ------------------------------------------
9. Product Specific Quality Requirements/Quality Standards
Endwave shall meet product specific quality requirements set forth in the
following Nokia Quality Standards:
NEMS: NOKIA ELECTRONICS & MECHANICAL STANDARDS (instructions and standards
for use in mechanical design and manufacture).
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
2.
NESS: NOKIA ELECTRONICS STANDARDS & SPECIFICATIONS.
(instructions and standards that are to be adhered to when defining and
using materials and electronic components).
EAU/ EAR:
(general Nokia standards relating to both electrical and mechanical
sub-contract assembly).
MIL (-STD): MILITARY STANDARD (US)
NEMS NESS EAU
- -------------------------------------------
1800/8 NESS099B56 SAY0045
- -------------------------------------------
NESS09964 (Note 1)
- -------------------------------------------
NESS099C2
- -------------------------------------------
NESS099C20
- -------------------------------------------
NESS100D0
- -------------------------------------------
NESS200C0
- -------------------------------------------
NESS500_3
- -------------------------------------------
Note 1: Notwithstanding the above, the use of Rogers 4003 (TM) has been approved
by Nokia.
MIL IPC
- ------------------------------------------------------------------------
- -STD-883E-2XXX -A-610-rev C (Class 2)
- ------------------------------------------------------------------------
2003.7 Solderability -A-600
- ------------------------------------------------------------------------
2004.5 Lead Integrity
- ------------------------------------------------------------------------
2009.9 External Visual
- ------------------------------------------------------------------------
2010 Visual
- ------------------------------------------------------------------------
2011.7 Bond Strength (Dest.)
- ------------------------------------------------------------------------
2017.7 Internal Visual (Hybrid)
- ------------------------------------------------------------------------
2019.5 Die Shear Strength
- ------------------------------------------------------------------------
2024.2 Lid Torque for Glas-Frit-Sealed Pack.
- ------------------------------------------------------------------------
2025.4 Adhesion of Lead Finish
- ------------------------------------------------------------------------
2029 Ceramic Chip Carrier Bond Strength
- ------------------------------------------------------------------------
2032.1 Visual Insp. of Passive Elements
- ------------------------------------------------------------------------
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
3.
APPENDIX 4
WARRANTIES AND SUPPORT
1. REPAIRS AND REPLACEMENTS WITHIN THE WARRANTY PERIOD
1.1 The defective Parts shall be delivered to Seller for warranty repair or
replacement. The Parts may be sent to Seller by Buyer or by any of Buyer's
authorised services. After the warranty repair or in case of replacement,
each repaired and/or replaced Part shall be delivered by Seller to the
address from where the Part was sent by Buyer, unless otherwise expressly
requested by Buyer or by its authorised service.
1.2 If Seller proves that the defect is of the kind not covered by the
warranty set forth under Clause 16 of the Agreement, then Seller shall
inform Buyer thereof in writing within a period of five days from the date
of receipt of the respective Part by Seller.
1.3 Any delivery of defective and repaired/replaced Parts by Buyer to Seller,
and by Seller to Buyer shall be made at the cost of Seller. The risk of
loss for any defective or repaired Parts will remain with Seller at all
times. If Seller replaces a Part, the risk of loss for the replacement
Part will pass to Buyer upon Delivery of the replacement Part.
2. REPAIRS, IF THE WARRANTY IS NOT VALID
2.1 Provided that Buyer agrees to purchase a [*]
2.2 The defective Parts shall be delivered to Seller for repair or
replacement. The Parts may be sent to Seller by Buyer or by any of Buyer's
authorised services. After the repair or in case of replacement, each
repaired and/or replaced Part shall be delivered by Seller to the address
from where the Part was sent by Buyer, unless otherwise expressly
requested by Buyer or by its authorised service.
2.3 The [*]
2.4 After the Warranty Period, the transport, freight and packing/packaging
costs, including local duties and fees, as well as the insurance costs to
the given delivery address are to be borne by the sending party and are
not to be charged from the receiving party.
The term of delivery is [*]
3. TURNAROUND TIME AND SERVICE LEVEL PERFORMANCE
3.1 Seller will use reasonable efforts to deliver all repaired or replaced
Parts to Buyer or to Buyer's authorised service in accordance with Clause
1.1 and Clause 2.2 within a target turn-around time of [*] calendar days.
Seller shall confirm the delivery date and notify of possible changes. The
Seller shall report related fault analysis and corrective actions to Buyer
within [*] calendar days.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
3.2 Without prejudice to any of the obligations of Seller hereunder, Seller
undertakes to provide repair/replacement service at a service level, which
is more [*]. The service level performance is measured on monthly basis
against agreed standard turnaround time.
SERVICE TURNAROUND TIME & SERVICE LEVEL PERFORMANCE
- -------------------------------------------------------------------------------------
Repair / replacement Within [*] calendar days in at least [*] of all cases
- -------------------------------------------------------------------------------------
Complete Fault analysis and Within [*] calendar days in at least [*] of all cases
corrective actions reporting
- -------------------------------------------------------------------------------------
Service Level = # of units repaired/replaced within turnaround time per month x 100
-------------------------------------------------------------
Performance total # of units sent to be repaired/replaced per month
Turnaround = the period from the date of receipt of faulty Part by Seller to the
date of Time shipment by Seller of the repaired/replaced Part to Buyer
4. TECHNICAL SUPPORT AND DOCUMENTS
4.1 [*] from the last delivery of each kind of Part. Such support services
shall include, without limitation, the availability of continuous system
engineer backup, repair services, and replacement services. The reasonable
prices for (and the price validity of) the support services shall be
mutually agreed. The provision of such services shall be subject to a
specific order submitted by Buyer to Seller and to a separate support
contract.
The prices, and the validity of such prices, for the repairs outside the
warranty, for the emergency repair and replacement service, for the
on-site repair service and for the spare parts supplied under this
Appendix 4 shall be agreed separately.
4.2 Seller shall provide all test data to Buyer reasonably required to
validate performance of the potentially defective Parts, if requested.
4.3 Seller shall provide test data to Buyer to make it possible to validate
the repaired parts, if requested.
4.4 Buyer shall be entitled to purchase a tester from Seller for functional
testing of the Parts at a reasonable price.
4.5 [*] the last delivery of each kind of Part the information contained in
the respective documentation (including without limitation complete
operation and maintenance documents) delivered by Seller to Buyer is
sufficient, complete and adequate for the proper operation and maintenance
of the Part by duly trained personnel of Buyer, and Seller shall provide
Buyer with updates to such documentation accordingly.
5. REPORTING OF THE REPAIRS AND REPLACEMENTS
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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AMENDED.
2.
5.1 Each delivery of a repaired or replaced Part by Seller shall include a
written repair report with the following information:
(1) Identification and the serial number of each repaired or replaced
Part; and
(2) Fault analysis and corrective actions performed by Seller on each
Part; and
(3) Return received date and name of the person responsible of repair
(4) Whether the repair or replacement performed by Seller falls under the
warranty or not; and
(5) The applicable price, if the repair/replacement is performed outside
the warranty.
5.2 Seller shall give detailed, written Quality report to Buyer on monthly
basis according to the Appendix 3.
5.3 At any time, upon request by Buyer, Seller shall be able to check and
report to Buyer the status of any Part sent by Buyer to be repaired or
replaced by Seller.
6. SPARE PARTS/NEW UNITS
6.1 Spare/new parts to each kind of Part will be available for a period [*]
years from the last delivery of such Part. Without prejudice to the
foregoing, if Seller discontinues the manufacture of any spare part, it
shall inform Buyer in writing thereof at [*] months prior to the
discontinuation, and Seller shall obtain, license or otherwise provide for
Buyer a source of supply for such discontinued spare parts at then-current
prices and with reasonable delivery times.
6.2 In the event of termination of the Agreement for any reason, Buyer may
order adequate quantities of spare/new parts.
6.3 Seller shall use commercially reasonable efforts to maintain a sufficient
inventory of the Parts and/or sub-units in order to comply with the
turnaround times set forth in this Appendix 4. The sufficient inventory
depends on the reliability and availability values of the Parts. The MTBF
(Mean time Between Failure) figures for the Parts are set forth in
Appendix 2 (Specifications) to the Agreement.
7. FIELD RETURN PROCESS
7.1 Return of defective parts (Field Returns)
LOCAL BUYER returns the Part to SELLER upon having proven them to the
extent possible to be defective.
The LOCAL BUYER shall request a Return Material Authorization (RMA) number
from SELLER and receive the RMA number prior to returning any Parts. The
RMA number shall be issued within [*] days of request from LOCAL BUYER.
No Credit Notes will be issued for any Field Return Parts.
The LOCAL BUYER shall issue a RETURN NOTE (proforma invoice) and send a
copy to the SELLER.
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
3.
The RETURN NOTE shall include the following information:
- SELLER's RMA number
- LOCAL BUYER contact information
- SELLER contact information
- LOCAL BUYER's Non-Conforming Materials (NCM) reference number (if
applicable)
- Purchase order number under which the Parts were bought (if
applicable)
- Description of the returned material (LOCAL BUYER's part number &
description)
- Quantity of Parts returned
- Description of the defect
- Serial numbers of returned Parts
- Total value of returned material
- Packing information (quantities, weights, dimensions)
- Country of Origin
8. COMPENSATION FOR FIELD RETURN REPAIRS OUTSIDE THE WARRANTY TIME
All payments for any field return repairs shall be made 45 days from time
of issuing the invoice for out of warranty repair.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
4.
EXHIBIT 4.1
1) PRICES
UNIT DESCRIPTION NOKIA ITEM CODE REPAIR PRICE
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
MWU [*] [*] [*]
- ---------------------------------------------------
- -2) CONTACT INFORMATION FOR REPAIR SERVICES
NOKIA'S AUTHORIZED SUBCONTRACTOR:
[*]
Repair Center
[*]
[*]
FINLAND
Contact persons [*]
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
5.
LOGISTICS APPENDIX 5
MADE AND ENTERED INTO BY AND BETWEEN
NOKIA CORPORATION
Nokia Networks
AND
ENDWAVE CORPORATION
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
CONTENTS
1 SCOPE AND OBJECTIVE
2 FORECASTING
2.1 FORECAST
2.2 COMMITMENT TO FORECAST
3 INBOUND LOGISTICS MODES OF OPERATION
3.1 STANDARD PURCHASE ORDER
3.2 MATERIALS EXECUTION NOKIA OPERATED WAREHOUSE, [*]
3.2.1 DEFINITION
3.2.2 DESCRIPTION OF THE MODE OF OPERATION
4 FLEXIBILITY AND TERMS OF REPLENISHMENT
5 TERMS OF DELIVERY AND PASSING OF TITLE
6 PACKAGING REQUIREMENTS
7 PACKING LIST REQUIREMENTS
8 TRANSPORTATION
9 CUSTOMER REJECTED PARTS AND PARTS (MATERIAL) RETURNS
9.1 FACTORY RETURNS
9.1.1 RETURN OF DEFECTIVE PARTS (FACTORY RETURNS)
9.1.2 COMPENSATION FOR DEFECTIVE PARTS (FACTORY RETURNS)
9.2 FIELD RETURNS
10 TERMS OF PAYMENT
11 INVOICING
11.1 SELF-Billing
11.2 STANDARD PURCHASE INVOICE
12 FINAL PROVISIONS
SCHEDULE 1 LIST OF PARTS, METHODS FOR FORECASTING, ORDERING AND DELIVERING,
FLEXIBILITY AND BUFFERS IN THE CONSIGNMENT MODE OF OPERATION
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
CONFIDENTIAL 3
Purchase Agreement No. 1201000
Appendix 5
This LOGISTICS APPENDIX is made and entered into this _____ day of, 2003 by and
between
NOKIA CORPORATION, represented through its Nokia Networks business group, a
public limited liability company incorporated in Finland, having its registered
address at Keilalahdentie 4,FIN-00045 Nokia Group, business identity code
0112038-9, including its Affiliates (hereinafter referred to as the LOCAL BUYER
or "Nokia"),
AND
ENDWAVE CORPORATION, a company incorporated in Delaware, USA with its principal
office at 990 Almanor Avenue, Sunnyvale, CA 94085, USA. (Hereinafter referred to
as the "SELLER").
The LOCAL BUYER and the SELLER may hereinafter be jointly referred to as the
"Parties".
1 SCOPE AND OBJECTIVE
This Logistics Appendix is incorporated by reference into the Purchase Agreement
No. 1201000 entered into between LOCAL BUYER and SELLER on (hereinafter referred
to as "Purchase Agreement").
The object of this Logistics Appendix is to identify the procedures for
forecasting, ordering, shipping and invoicing the Parts listed in Schedule 1 to
this Logistics Appendix ("Schedule 1") between LOCAL BUYER and SELLER in order
to specify the procedures unique to that particular site which are not otherwise
covered by the Purchase Agreement.
In case of any discrepancies between the Purchase Agreement and this Logistics
Appendix, the text of the Purchase Agreement shall prevail.
This Logistics Appendix shall not create any obligation for LOCAL BUYER to
purchase any particular quantity of Parts from SELLER until a specific order has
been placed for the Parts by LOCAL BUYER, except as specified in Schedule 1,
The Parties acknowledge that this Logistics Appendix does not govern the
forecasting, ordering, shipping or invoicing logistics for any sites of LOCAL
BUYER or SELLER other than LOCAL BUYER's manufacturing site located at NOKIA
CORPORATION, NOKIA NETWORKS, ESPOO PLANT, KARAPORTTI 8, FIN-02610 ESPOO, FINLAND
AND LOCAL BUYER'S CURRENTLY AUTHORISED SUBCONTRACTOR FOR SERVICES (AS SET FORTH
IN APPENDIX 4 - WARRANTIES AND SUPPORT), and SELLER's facilities located at
ENDWAVE CORPORATION, 990 ALMANOR A VENUE, SUNNYVALE, CA 94085, USA AND 6425
CAPITOL AVENUE, DIAMOND SPRINGS, CA, USA, or any other SELLER designated
facility, subject to Clause 13.4 of the Purchase Agreement. In addition, the
Parties acknowledge that this Logistics Appendix does not govern the
forecasting, ordering, shipping or invoicing for any parts other than those
Parts listed in Schedule 1 to this Logistics Appendix ("Schedule 1")
2 FORECASTING
2.1 FORECAST
LOCAL BUYER agrees to provide real time access to the forecast of its
anticipated purchasing needs to the SELLER, in order to permit the SELLER to
plan for an adequate manufacturing capacity.
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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AMENDED.
CONFIDENTIAL 4
Purchase Agreement No. 1201000
Appendix 5
The forecast provided by the LOCAL BUYER to the SELLER shall not be regarded as
binding upon the LOCAL BUYER under any circumstances.
The forecasting principles (e.g. existence, content, time period and method of
the forecast) for each Part governed by this Logistics Appendix are contained in
Schedule I.
2.2 COMMITMENT TO FORECAST
The Parties hereto acknowledge that forecasts provided by Buyer to Seller, are
regarded as estimates only based on the best assumptions of Buyer and they are
provided for Seller's planning purposes. Purchase estimates shall not be
regarded as binding purchase orders under any circumstances. Buyer shall be
under no obligation to purchase any specific quantity of the Parts from Seller,
unless otherwise expressly agreed in Appendix 1.
[*] the [*] of [*] of [*] will [*] and [*] at [*] will be [*] by [*] the [*] and
[*] as [*] in [*].
3 INBOUND LOGISTICS MODES OF OPERATION
3.1 STANDARD PURCHASE ORDER
In addition to obtaining Parts pursuant to the model described in Clause 3.2 of
this Logistics Appendix, LOCAL BUYER shall have the option to order Parts from
the SELLER under the Spot Order method. In such instances, LOCAL BUYER shall
submit single purchase orders to SELLER for the purchase of Parts. A single
purchase order shall specify Part numbers, order quantities, delivery dates,
delivery address and specific order number for the Parts to be ordered
hereunder. SELLER shall deliver the ordered Parts on the date specified on the
purchase order and in accordance with the terms and conditions specified in the
Purchase Agreement.
3.2 MATERIALS EXECUTION NOKIA OPERATED WAREHOUSE, [*] WITH [*]
3.2.1 DEFINITION
Materials Execution (MEX) Nokia Operated Warehouse, [*] with [*] is a [*] in
which [*] to [*] and [*] in [*] and to [*] to an [*] with [*]. The delivery
shall be made to a LOCAL BUYER plant. The ordering and other communication
between the LOCAL BUYER and SELLER is managed by utilizing Web-solutions or by
other mutually agreed way.
[*] are held on the LOCAL BUYER's premises but owned by the SELLER.
The title of all [*] shall transfer to the BUYER when the Part is [*]. All [*]
in the [*] at [*] from [*] from [*] by [*]. The SELLER will invoice the LOCAL
BUYER and the LOCAL BUYER shall pay for all unites held by the LOCAL BUYER
longer than [*] months from date of shipment from the SELLER. LOCAL BUYER shall
not have any obligation to buy [*] of [*].
SELLER reserves the right to enter the LOCAL BUYER's [*] with a [*]-hour prior
notice to LOCAL BUYER and during normal business hours.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
4.
CONFIDENTIAL 5
Purchase Agreement No. 1201000
Appendix 5
The SELLER, at the LOCAL BUYER's [*], may perform quarterly inventory counts. At
year-end, the LOCAL BUYER shall supply the SELLER with a written confirmation of
inventory balances. For quarterly confirmation purposes, inventory on hand at
the LOCAL
BUYER's [*] at LOCAL BUYER'S time will be considered SELLER inventory.
3.2.2 DESCRIPTION OF THE MODE OF OPERATION
The SELLER is responsible for evaluating the LOCAL BUYER's inventory parameters
and current inventory on hand and making decisions whether SELLER needs to
replenish the consigned inventory held on the LOCAL BUYER's premises or not. It
is the responsibility of the SELLER to maintain inventory levels within the
parameters. Inventory information is sent regularly by LOCAL BUYER and contains
agreed Min/Max inventory parameters, Inventory on Hand in the consignment and
last receipts information. LOCAL BUYER will endeavor to send Inventory Report on
mutually agreed basis. For accounting and bookkeeping purposes the LOCAL BUYER
will raise a frame order for all Parts held in the consignment.
The SELLER is responsible for creating serial numbers according to the
parameters that have been previously mutually agreed to.
LOCAL BUYER will physically hold the consigned Parts on its premises. LOCAL
BUYER shall take care of the day-to-day materials handling. The LOCAL BUYER is
responsible for insuring the consigned Parts on behalf of Seller and will
indemnify Seller for any damages causes to the Parts at the [*] location. The
LOCAL BUYER is responsible for miscalculations of the units by LOCAL BUYER and
all loss or damage caused to the Parts after they have been loaded for shipment
at the SELLER' s facilities. The SELLER is responsible for miscalculations of
the units by SELLER and any loss or damage caused to the Parts before the Parts
are loaded for shipment.
4 FLEXIBILITY AND TERMS OF REPLENISHMENT
SELLER is committed to maintain its ability to replenish the Parts according to
the Flexibility Schedule agreed between LOCAL BUYER and SELLER and specified in
Schedule 1. The flexibility requirements define the quantity of Parts above the
given basic level the SELLER shall be ready to replenish.
Schedule l specifies the basic level flexibility requirement and the flexibility
requirements for each Part governed by this Logistics Appendix.
If SELLER cannot replenish the Parts in accordance with the agreed replenishment
times (Schedule 1) then SELLER shall as soon as SELLER becomes aware of the
delay inform LOCAL BUYER about:
(a) Identification of which kind and what quantities of the Parts will be
delayed;
(b) The anticipated duration of delay for each kind and quantity;
(c) The cause(s) of the delay;
(d) The actions that SELLER is taking and will take to remedy or shorten the
delay; and
(e) A proposal, subject to mutual agreement, of a new replenishment date for
each kind and quantity of the delayed Parts.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
5.
CONFIDENTIAL 6
Purchase Agreement No. 1201000
Appendix 5
In order to avoid any further replenishment delay, SELLER shall use best efforts
(such as, but not limited to, expedited freight), at the cost of SELLER, to
minimize the possible delay.
If the consignment stock is reduced below the minimum level, the replenishment
time to get back to the minimum level will be mutually agreed to.
SELLER is not responsible for delays due to shipping after calling for a
pick-up, delivery or Customs delays.
5 TERMS OF DELIVERY AND PASSING OF TITLE
Terms of delivery, passage of title, and risk of loss, between LOCAL BUYER and
SELLER are set forth in the Purchase Agreement.
The prices for the Parts are determined by Appendix 1 to the Purchase Agreement.
6 PACKAGING REQUIREMENTS
In case of consignment deliveries, all Part markings and traceability principles
shall be according to the LOCAL BUYER's Standard Operating Procedures. Shipping
packages shall be clearly marked with the text: "Consignment".
The SELLER shall use reasonable efforts to use recyclable packaging. Empty
packaging at LOCAL BUYER shall be returned weekly by LOCAL BUYER to SELLER at
SELLER's expense, in a condition allowing re-use, if requested by SELLER.
7 PACKING LIST REQUIREMENTS
All packaging must be bar-coded as defined by LOCAL BUYER. The packing list must
include the following information:
1. SELLER's name and mailing address.
2. LOCAL BUYER's name and address:
Delivery address.
Mailing and invoicing address.
Precise location (for example production line, door number or
warehouse).
3. LOCAL BUYER frame order number (in written and barcode form).
4. LOCAL BUYER's frame order position (in written and barcode form).
5. Identification information for the goods:
LOCAL BUYER code (in written and barcode form).
Manufacturer type.
6. Item quantity (in written and barcode form).
7. Quantity of packages.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
6.
CONFIDENTIAL 7
Purchase Agreement No. 1201000
Appendix 5
8. Text 'Consignment' (In consignment deliveries)
9. Terms of delivery [*].
10. Date of packing List.
11. Serial number or Production date or other traceable code (in written and
barcode form).
12. Packing list number (in written and barcode form).
Only Parts sharing the same Part code may be packed together in a single
package; however, the delivery package (Master carton) may contain several
separately packed single-Part code packages, provided that the delivery package
also conforms to the requirements set forth in this Logistics Appendix.
8 TRANSPORTATION
LOCAL BUYER's forwarding agents/ transportation companies are listed below.
SELLER's forwarding agents / transportation companies are listed below.
FACTORY ADDRESS FORWARDER/ TRANSPORTATION CONTACT DETAILS
COMPANY
Nokia Corporation [*] [*]
Nokia Networks Company
Karaportti 8, FIN-02610
Espoo, Finland
9 CUSTOMER REJECTED PARTS AND PARTS (MATERIAL) RETURNS
Defective Parts (new built) can be found at the LOCAL BUYER during incoming
inspection, assembly and/or final testing. If the Parts are returned to the
SELLER they are referred to as Factory Returns. If the Parts are found to be
defective in the field (at final customer/user) they are returned to the LOCAL
BUYER or its currently authorized subcontractor for services. If LOCAL BUYER
returns those Parts to the SELLER they are referred to as Field Returns. These
two cases are to be handled separately.
9.1 FACTORY RETURNS
In case of any factory return the LOCAL BUYER reserves the right to instantly
compensate any such return with a new Part from the consignment stock to prevent
production losses. LOCAL BUYER shall include to the extent possible any such
compensation in the weekly forecast.
9.1.1 RETURN OF DEFECTIVE PARTS (FACTORY RETURNS)
The LOCAL BUYER shall return the Part upon having proven it, to the extent
possible, to fail to conform to the Specifications, the Quality Requirements or
the Environmental Requirements. The Parts return process is done separate from
the consignment stock. In case of subsequent customer shipment of this Part the
Part may have a new serial number issued by SELLER.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
7.
CONFIDENTIAL 8
Purchase Agreement NO. 1201000
Appendix 5
The LOCAL BUYER shall request a Return Material Authorization (RMA) number from
SELLER and receive the RMA number prior to returning any Parts. The RMA number
shall be issued within [*] days of request from LOCAL BUYER.
The LOCAL BUYER shall issue a RETURN NOTE and send a copy to the SELLER.
The RETURN NOTE shall include the following information:
- SELLER's Returned Goods (RG) reference number (if obtained without
delay)
- LOCAL BUYER contact information
- SELLER contact information
- LOCAL BUYER's Non-Conforming Materials (NCM) reference number (if
applicable)
- SELLER's RMA number
- Purchase order number under which the Parts were bought (if
applicable)
- Description of the returned material (LOCAL BUYER's part number &
description)
- Quantity of Parts returned
- Description of the defect
- Serial numbers of returned Parts
- Total value of returned material to be compensated by the SELLER
- Packing information (quantities, weights, dimensions)
The expense of the Parts return shall be billed directly to SELLER via its
specified carrier.
Following inspection by SELLER, should the Parts be deemed to be No Fault Found
or indisputably deemed to be damaged by LOCAL BUYER, SELLER reserves the right
to invoice LOCAL BUYER for the shipping costs involved.
9.1.2 COMPENSATION FOR DEFECTIVE PARTS (FACTORY RETURNS)
The compensation for defective Parts returned by LOCAL BUYER shall be by Credit
Note issued by SELLER. The Credit Note shall be issued within [*] business days
of the returned Parts being received by SELLER and shall correspond to LOCAL
BUYER's Return Note, referencing the Non-Conforming Material (NCM) number
contained therein.
As the SELLER issues the Credit Note the title of Parts is passed to the SELLER.
All repaired Parts shall be returned to the consignment stock according to the
flexibility requirement as specified in this Logistics Appendix Schedule 1.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
8.
CONFIDENTIAL 9
Purchase Agreement No. 1201000
Appendix 5
SELLER reserves the right to invoice LOCAL BUYER a mutually agreed inspection
fee for Parts indisputably deemed damaged by LOCAL BUYER or deemed to be No
Fault Found.
9.2 FIELD RETURNS
AS SET FORTH IN APPENDIX 4 -WARRANTIES AND SUPPORT
10 TERMS OF PAYMENT
All payments under the [*] mode of operation shall be made [*] days from the
date of creation of the Self Billing Invoice (at LOCAL BUYER), subject to Nokia
Bank Link Policy as defined in the Purchase Agreement. The creation of the Self
- - Billing invoice is [*] days from transfer of title from SELLER to LOCAL BUYER
of the Parts.
In the event that payment is not made with in such [*] days, LOCAL BUYER shall
pay a penalty of [*] per cent per annum, not to exceed the rate of [*] per cent
per month, of the amount owed to SELLER.
11 INVOICING
11.1 SELF-BILLING
Self-billing may be used as part of any Inbound Logistics mode of operations. In
this case the invoicing between the LOCAL BUYER and SELLER is managed by
utilizing EDI (Electric Data Interchange) and/or Web-solutions or by other
mutually agreed way.
SELLER will get a report from LOCAL BUYER according to consumed Parts from stock
[*] according to which the payment is done to SELLER within the term of payment
and agreed contract price. Parts are considered to be consumed when they are
moved from consignment stock to LOCAL BUYER's use. Even when self-billing is
used SELLER must send a pro forma invoice for customs clearance with each
shipment.
The self-billing report shall include the following information:
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
9.
CONFIDENTIAL 10
Purchase Agreement No. 1201000
Appendix 5
- - Self-billing number
- - Consignee, LOCAL BUYER
- - Vendor account number
- - Terms of payment (days)
- - Name of bank
- - Blocked quantity
- - LOCAL BUYER part number & description
- - VAT - code, value and percentage
- - Material description
- - Unit of measure
- - Value defined in the purchasing agreement with LOCAL BUYER and SELLER at
the time of consumption
- - Invoiced quantity
- - Invoicing currency and it's international abbreviation
- - Material consumption time (dd.mm.yy-dd.mm.yy)
- - SELLER's contact information
- - VAT number
- - Bank
- - Account number
- - Description of goods:
- - SELLER's part number
- - Total amount to be paid
- - Quantity used
- - One invoice line of one transaction
- - Received quantity
- - Blocked quantity
Self-billing requires agreement and capabilities from LOCAL BUYER and SELLER.
Also local authorities need to approve self -billing procedure.
11.2 STANDARD PURCHASE INVOICE
The invoice shall include the following information:
- - Invoicing address:
- Please do not specify a person's name
- Please specify "NET/LOCAL BUYER"
- - Purchase order number(s) per line item
- - Terms of payment (days)
- - Bank
- Name of bank
- Account number
- - SELLER's contact information
- - Delivery or shipment day
- - Country of origin and dispatch (FOR EU DELIVERIES ONLY)
- Goods are in free circulation within the EU
countries
Or
- Goods are not in free circulation within the EU countries
- - Description of goods:
- LOCAL BUYER part number & description
- SELLERS's part number
- - Domestic invoices:
- tax free price
- added value tax and percentage
- - Invoicing currency and it's international abbreviation
- - VAT-code
- - SELLER's customer number for LOCAL BUYER
- - Bar code for domestic invoices (if applicable)
- - Shipment details
- Net and Gross weight
- Dimensions of each package
- Number of packages
- - Terms of delivery [*]
- - Waybill number
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
10.
CONFIDENTIAL 11
Purchase Agreement No. 1201000
Appendix 5
- - Forwarder and it's representative in the country of departure
- - Customs tariff code
- - Packing list number
12. FINAL PROVISIONS
Any modifications or amendments to the text of this Logistics Appendix must be
made in writing and signed by authorized representatives of both Parties.
However, the Parties acknowledge that Schedules are intended to be revised
periodically and to the extent that such revisions do not conflict with the
terms of the Purchase Agreement or this Logistics Appendix, updated versions of
Schedules may be issued upon the signatures of authorized representatives of
both Parties and without requiring a formal amendment either to this Logistics
Appendix or to the Purchase Agreement.
All times specified in this Logistics Appendix are based on LOCAL BUYER's time
zone.
This version 3.0.0, updated upon signature of both Parties, below, cancels and
supersedes all prior versions of this Logistics Appendix or any forecast or
commitment schedules issued with regard to the Parts covered by this Logistics
Appendix.
LOCAL BUYER: SELLER:
NOKIA CORPORATION ENDWAVE CORPORATION
Nokia Networks
By: __________________________________ By: _________________________________
Name: ________________________________ Name: _______________________________
Title: _______________________________ Title: ______________________________
Date: ________________________________ Date: _______________________________
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
11.
INSURANCE REQUIREMENTS APPENDIX (01/2002, US-SMALL)
SELLER shall meet and comply with the following "Insurance Requirements", as
stated in this Insurance Requirements Appendix (this "Appendix"):
1. SELLER's Obligations
a. SELLER shall carry and maintain in full force and effect during the
term of the parties' agreement(s) at least the minimum insurance
coverages stated in Section 2 below.
b. All insurance policies providing such coverage must be written on an
occurrence basis for worker's compensation and employer's,
commercial general, commercial automobile and umbrella liability
coverage and on a claims made basis for professional/errors and
omissions and software errors and omissions coverages. SELLER's
insurance is primary to any valid collectible insurance carried by
the Additional Insureds (defined below).
c. The insurer(s) providing such coverages must be licensed and
admitted in the state(s) of SELLER's operations and performance of
the parties' agreement(s), and have a rating of "A-" and
policyholder's surplus size "VII" or better as listed in the
then-current Best's Insurance Report published by A.M. Best Company,
Inc., or equivalent rating from Standard & Poors or Moody's.
d. The Commercial General Liability and Umbrella Liability insurance
coverages shall protect SELLER and NOKIA and each of the Additional
Insureds, where applicable, from and against claims against SELLER
and/or NOKIA for damages for personal injury, property damage,
bodily injury, including without limitation, mental distress and
anguish, and death, which may be sustained by or made against
SELLER, NOKIA, their respective directors, officers, employees and
agents, affiliates or sustained by any third parties, unless claims
are wholly due to the gross negligence or willful misconduct of
NOKIA.
2. Minimum Insurance Coverage
The required minimum insurance coverages and limits which SELLER shall
obtain and maintain shall include the following:
2.A. Worker's Compensation and Employer's Liability:
2.A.1. Coverage A -- Statutory Benefits
Coverage for liability imposed under the Workers'
Compensation laws or similar provisions of the state(s)
in which SELLER is performing work to fulfill obligations
under the parties' agreement(s), including exempt employees.
2.A.2. Coverage B -- Employer's Liability
Limits of at least: [*] Bodily Injury by Accident
[*] Bodily Injury by Disease - Policy
Aggregate
[*] Bodily Injury by Disease - Each
Employee
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
2.A.3. Extensions of Coverage
2.A.3.1. Other States Insurance Coverage
2.A.3.2. Federal Workers' Compensation Act Coverage
(as applicable)
2.A.3.3. Proprietors, Partners and Executive Officers
Coverage
2.B. Commercial General Liability:
2.B.1. Required Coverage Limits
The following coverages shall have the following minimum
limits, exclusive of defense costs, which shall be paid
under the insurance policy outside the limits:
[*] General Annual Aggregate
[*] Products/Completed Operations Annual Aggregate
[*] Personal and Advertising Injury Annual Aggregate
[*] Each Occurrence
[*] Medical Payments
2.B.2. Extensions of Coverage
2.B.2.1. Duty to Defend
2.B.2.2. "Pay on behalf of" wording
2.B.2.3. Contractual Liability Coverage
2.B.2.4. Separation of Insureds
2.B.2.5. Worldwide Coverage
2.C. Commercial Automobile Liability:
2.C.1. Required Coverage Limits
[*] Combined Single Limit Each Accident (Bodily
Injury/Property Damage)
2.C.2. Extensions of Coverage
Coverage for all owned, hired and non-owned motor vehicles
2.D. Umbrella Liability:
2.D.1. Required Coverage Limits
[*] Each Occurrence
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
2.
2.D.2. Coverage
Excess of Employer's Liability, Commercial General Liability
and Commercial Automobile Liability insurance policies,
including all coverages and extensions of coverage
2.D.3. Extensions of Coverage
2.D.3.1. Duty to Defend
2.D.3.2. "Pay on behalf of" wording
The minimum amounts of insurance required in this Section 2 may be satisfied by
SELLER purchasing primary coverage in the amounts and coverages specified, or a
separate umbrella or excess policy together with a lower limit primary
underlying coverage. The structure of coverage is at SELLER's option so long as
the total amount of insurance meets these minimum requirements.
3. Retentions
Any deductibles, self-insured retention loss limits, retentions or similar
obligations (collectively, "Retentions") must be disclosed on the
certificate of insurance provided to NOKIA. Payment of all Retentions
shall be the sole expense obligation of SELLER.
4. Additional Insured
a. SELLER shall have NOKIA (including its parent, subsidiary,
affiliated and managed entities), its directors, officers and
employees, agents and assigns named as additional insureds
(collectively, the "Additional Insureds") under each General
Liability, Automobile Liability and Umbrella Liability insurance
policy obtained by SELLER pursuant to the requirements contained in
this Appendix. Such additional insured status shall be procured and
evidenced by an "Additional Insured Endorsement" and shall cover the
Additional Insureds for any and all claims and legal proceedings of
any kind whatsoever arising out of SELLER's work or operations
(including the sale of goods to NOKIA) performed by or on behalf of
NOKIA, except for claims caused by the gross negligence or willful
misconduct of Nokia. Such Additional Insured Endorsement shall
provide that such insurance is primary and shall not contribute with
any insurance or self-insurance that NOKIA has procured to protect
itself unless claims are wholly due to the gross negligence or
willful misconduct of NOKIA.
b. Each of the insurance limits required by this Appendix shall be
fully paid and exhausted before NOKIA, including any and all of
NOKIA's separate insurance coverage, if any, including NOKIA's
umbrella and/or excess insurance policies, if any, becomes involved
in the defense or payment of any claim or legal proceeding. NOKIA's
separate insurance coverages, if any, shall be excess over any
insurance afforded by SELLER in compliance with the terms of this
Appendix.
5. Waiver of Subrogation
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
3.
Where permitted by law, SELLER waives and will require its insurers to
waive all rights of subrogation and recovery against the Additional
Insureds, whether sounding in contract, tort (including negligence and
strict liability) or otherwise, unless such damages are caused in whole or
in part due solely to the gross negligence or willful misconduct of NOKIA,
or acts or omissions of NOKIA triggering strict liability.
6. Proof of Insurance
a. Before commencement of the parties' agreement(s) and prior to NOKIA
having any obligation to pay SELLER whatsoever, SELLER shall provide
to NOKIA a certificate of insurance (ACCORD Form 25-S (1/95), or the
latest edition) signed by a duly authorized officer or agent of the
insurer certifying that the minimum insurance coverages set forth in
Section 2 of this Appendix are in effect. Further, the certificate
of insurance must state that NOKIA will receive at least 30 days'
written notice of policy cancellation, non-renewal or material
modification. SELLER shall thereafter provide NOKIA, at least 30
days' prior to the expiration date of the cancelled, non-renewed or
materially modified policy, written evidence by an insurance
certificate that such policy has been replaced, renewed or modified
with no lapse in coverage by another policy which meets the minimum
insurance coverages set forth in Section 2 of this Appendix. If
SELLER does not provide NOKIA with such certificates of insurance
within 30 days after the date of the parties' agreement(s) and after
each policy renewal thereafter, then NOKIA may (i) suspend payments
to SELLER until evidence of required coverage is provided or (ii)
terminate the parties' agreement(s) or any then-current statement(s)
of work, work order(s), etc.
b. NOKIA's approval of any of SELLER's insurance coverages does not
relieve or limit any of SELLER's obligations under the parties'
agreement(s), including, but not limited to, liability under the
indemnification and defense provisions of the parties' agreement(s)
for claims exceeding required insurance limits.
c. In no event shall NOKIA's allowing SELLER to begin or complete its
obligations under the parties' agreement(s), or acceptance of any
such performance or payment therefor, be construed as a waiver of
NOKIA's right to assert a claim against SELLER for breach of
SELLER's obligations under this Appendix, or declare SELLER in
default of the parties' agreement(s) for failure to comply with any
of SELLER's obligations under this Appendix, all and each of which
are deemed material.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
4.
[NOKIA LOGO]
1 (6)
Purchase Agreement Agreement No. Confidential
Appendix 8
Nokia Networks
MANDATORY ENVIRONMENTAL REQUIREMENTS FOR PRODUCTS
DELIVERED TO NOKIA NETWORKS (NET)
TABLE OF CONTENTS
1. Purpose and scope.................................................................... 2
2. General.............................................................................. 2
3. Requirements......................................................................... 2
3.1 Substances requirements.......................................................... 2
3.1.1 Nokia Substance List........................................................ 2
3.1.2 Material content information................................................ 2
3.2 Solder requirements.............................................................. 3
3.3 Requirement of providing information on substances used in Product............... 3
3.4 Requirement of symbol indicating need for separate collection.................... 3
3.5 Information on the Date of placing on the market................................. 4
3.6 Re-use and Recycling............................................................. 4
3.7 Separate disassembly............................................................. 4
3.8 Battery requirements............................................................. 5
3.8.1 Substance requirement....................................................... 5
3.8.2 Marking and documentation................................................... 5
4. Exhibits............................................................................. 6
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
[NOKIA LOGO]
2 (6)
Purchase Agreement Agreement No. Confidential
Appendix 8
Nokia Networks
1. PURPOSE AND SCOPE
This document describes the environmental requirements ("Environmental
Requirements") which are mandatory according to the agreed upon schedule.
These Environmental Requirements are applicable to any and all products
delivered to Nokia by supplier (the "Product"). In case of discrepancy
between this document and other written requirement of Nokia regading
environmental requirements, the text of this document shall prevail over
any other document unless otherwise stated in this document
2. GENERAL
Nokia Networks (NET) aims to minimise the environmental impacts of
communication networks by systematically considering environmental issues
in product design. The mandatory environmental requirements described in
this document are based on NET environmental goal areas (e.g.
environmentally relevant substances) and legislative requirements (such as
but not limited to Directive 2002/95/EC of the European Parliament and of
the Council of 27 January 2003 on the restriction of the use of certain
hazardous substances in electrical and electronic equipment ("RoHS") and
Directive 2002/96/EC of the European Parliament and of the Council of 27
January 2003 on waste electrical and electronic equipment ("WEEE")).
3. REQUIREMENTS
3.1 SUBSTANCES REQUIREMENTS
3.1.1 Nokia Substance List
All the products, parts and modules supplied to Nokia Networks shall be
compliant with the Nokia Substance List (EXHIBIT A). However, lead,
mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBB) and
polybrominated diphenyl ethers (PBDE) shall be banned from 31 December,
2005, unless Nokia has given information for another earlier date for
banning the use of these materials in Products, in which case such earlier
date shall be applicable. The time limits for the exemptions for RoHS
requirements in Nokia Substance List are the ultimate deadlines for the
exemptions, and such exemption deadlines are applicable only and to the
extent where there are no Product specific or other earlier time limits or
deadlines required or informed by Nokia elsewhere. Any and all change(s)
in Product material or substance, even though such change is required by
Nokia in Nokia Substance List or elsewhere, is always subject to change
management process and a written notice to Nokia in accordance with the
terms and conditions of the valid purchase agreement. Please read the
cover letter of the Nokia Substance List carefully.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
2.
[NOKIA LOGO]
3 (6)
Purchase Agreement Agreement No. Confidential
Appendix 8
Nokia Networks
Statement of Conformance to Nokia Substance List (EXHIBIT D) is delivered
to Nokia according to schedules given in chapter 3.
References
- Proposal for a Directive of the European Parliament and of the
Council on the restriction of the use of certain hazardous
substances in electrical and electronic equipment (RoHS)
- other Nokia requirements
3.1.2 Material content information
[*]
[*]
References:
- Proposal for a Directive of the European Parliament and of the
Council on the restriction of the use of certain hazardous
substances in electrical and electronic equipment (RoHS)
- Proposal for a Directive of the European Parliament and of the
Council on waste electrical and electronic equipment (WEEE)
- Nokia Substance List
3.2 SOLDER REQUIREMENTS
[*]
[NET_LEADFREE _SPEC.PDF] ["LEADFREE UPDATE FOR SUPPLIERS_160902.PDF]
Reference:
- Proposal for a Directive of the European Parliament and of the
Council on the restriction of the use of certain hazardous
substances in electrical and electronic equipment (RoHS)
3.3 REQUIREMENT OF PROVIDING INFORMATION ON SUBSTANCES USED IN PRODUCT
Accurate information (to the best of supplier's knowledge and in reliance
on information provided by supplier's suppliers) regarding Environmentally
relevant substances and the information of their locations in the Product
shall be stated in the product documents. Environmentally relevant
materials are defined in the Nokia Substance List (please see chapter
3.1). [*]
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
3.
[NOKIA LOGO]
4 (6)
Purchase Agreement Agreement No. Confidential
Appendix 8
Nokia Networks
Reference:
- Proposal for a Directive of the European Parliament and of the
Council on waste electrical and electronic equipment (WEEE)
- Nokia Substance List
3.4 REQUIREMENT OF SYMBOL INDICATING NEED FOR SEPARATE COLLECTION
Products, which are as such part of the NET product entity targeted to
consumer use or which are product entities themselves, and which are
delivered to Nokia NET after 1st January 2005, shall be marked with the
symbol indicating separate collection for electrical and electronic
equipment. The marking shall follow the requirements defined in the WEEE
directive. The symbol, as shown below, must be printed visibly, legibly
and indelibly.
[CROSSED-OUT WHEELED BIN]
Figure 1: Crossed-out wheeled bin
3.5 INFORMATION ON THE DATE OF PLACING ON THE MARKET
In order to enable the date upon which the Product was placed on the
market to be determined unequivocally from 13 August 2005, a mark on the
Product shall specify that the latter was placed on the market after 13
August 2005. The supplier shall further strictly follow and implement
European standard(s) to further define and specify such information based
on the WEEE directive.
3.6 RE-USE AND RECYCLING
Component, material and substance re-use and recycling shall be [*] at the
latest based on the WEEE directive requirement.
3.7 SEPARATE DISASSEMBLY
As a minimum the substances, preparations and components defined in
Proposal for a Directive of the European Parliament and of the Council on
waste electrical and electronic equipment and adantment (WEEE), Annex II,
have to be removed from products in their end-of-life phase. Thus, the
removal of these substances, preparations and components shall be enabled.
Reference:
- Proposal for a Directive of the European Parliament and of the
Council on waste electrical and electronic equipment and
adantment (WEEE)
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
4.
[NOKIA LOGO]
5 (6)
Purchase Agreement Agreement No. Confidential
Appendix 8
Nokia Networks
3.8 BATTERY REQUIREMENTS
3.8.1 Substance requirement
All the batteries and accumulators in Products shall be mercury (Hg) free.
3.8.2 Marking and documentation
Batteries and accumulators containing cadmium (Cd) and lead (Pb) shall be
marked with crossed-out wheeled bin-symbol prior to delivery to Nokia.
Information about proper end-of-life treatment must be provided proptly
upon Nokia's request.
Reference:
- Council Directive on batteries and accumulators containing
certain dangerous substances (91/157/EEC), and adantments
93/86/EEC and 98/101/EC
4 EXHIBITS
EXHIBIT A) NOKIA SUBSTANCE LIST:
[Link to Doc " Nokia Substance List v-3.xls"]
EXHIBIT B) MATERIAL DATA FORM TEMPLATE PROVIDED BY NOKIA:
[Link to Doc "MDFV5-01.xls"]
EXHIBIT C) MATERIAL DECLARATION TEMPLATE PROVIDED BY NOKIA:
[Link to Doc "mat declaration template.doc"]
EXHIBIT D) STATEMENT OF CONFORMANCE TO NOKIA SUBSTANCE LIST:
[Link to S-o-Conformance_NSLv3.0.xls]
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
5.