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EXHIBIT 10.26
EXABYTE
SUPPLIER MANAGED INVENTORY AGREEMENT
("Exabyte") ("Seller")
EXABYTE CORPORATION SINGAPORE SHINEI SANGYO
1685 38th Street 31 Joo Koon Circle,
Boulder, CO 80301 Jurong Town, Singapore 629108
ATTN: Gerri Siebenaller ATTN: Mr. Patrick Tay
PHONE: PHONE:
Exabyte has established a Supplier Managed Inventory Program ("SMI")
whereby subject to the terms and conditions of this Agreement, Seller agrees to
supply Product (defined in Exhibit A) to Exabyte's designated SMI warehouse in
order to meet Exabyte's production schedule. Exabyte and Seller agree that
Exabyte's purchase and Seller's sale of Product is subject to the terms and
conditions set forth in this Supplier Managed Inventory Agreement ("Agreement").
1. DEFINITIONS. "Product Lead Time Model" as set forth in Exhibit A and
attached hereto defines the lead time(s) for Seller to acquire certain raw
materials for its manufacture of Product and specifies the number of days needed
by Seller to manufacture Product for delivery to Exabyte.
2. PURCHASE ORDER. For invoicing and payment purposes only, Exabyte
shall issue a purchase order or a blanket purchase order to Seller to cover a
specific time period during which the purchase order is effective.
3. PLANNING SCHEDULE. On a monthly basis, Exabyte shall issue to Seller
a twelve (12) month rolling forecast (as specified in Exhibit B). This forecast
shall serve as Seller's authorization to acquire material and build Product in
accordance with the Product Lead Time Model. Seller shall apply any overage
resulting from a forecast towards Exabyte's future requirements.
Exabyte is not liable for any Product manufactured or materials
purchased beyond what is stated in the forecast and according to the attached
Product Lead Time Model.
4. REPLENISHMENT SCHEDULE. In order to meet Exabyte's demand for
Product, Seller shall maintain the agreed upon quantity of Product at Exabyte's
designated SMI warehouse location. Seller is responsible for monitoring Product
quantity levels and shall replenish Product according to Exabyte's consumption
report. Upon Seller's request, Exabyte will monitor inventory levels and provide
a shipment schedule to Seller for replenishment purposes.
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Unless other agreed, quantities delivered in excess of the agreed upon
replenishment quantity as stated in the Product Lead Time Model shall be
returned to Seller at its expense.
5. DELIVERY. For all shipments TIME IS OF THE ESSENCE. Seller maintains
title for Product until Exabyte pulls Product for its consumption. Seller agrees
to specify the carrier's invoice number on its invoice to Exabyte when freight
charges are prepaid.
In the event Exabyte is noted as the importer of record on commercial
shipping documents, Seller shall provide all applicable information including
but not limited to, a copy of the air bill tracking that indicate the freight
costs.
6. RECEIVING. Product containers will be subject to a visual inspection
upon receipt to note any exterior damage. Additionally, Product may be inspected
to ensure that it meets the applicable Product specification. If Product is
visibly damaged, or does not meet the applicable Product specification, Product
will be quarantined. Seller will be immediately notified and such Product will
be disposed of in accordance with Seller's instructions.
Any quantity discrepancies shall be noted on the warehouse receiving
documentation and reported to Seller.
7. INVOICING AND PAYMENT. Prices for Product are set forth in (i)
Exabyte's current purchase order to Seller or (ii) the purchase agreement in
effect between the parties.
Seller may issue an invoice for Product when Exabyte pulls such Product
for its consumption. Exabyte will make available its daily consumption report to
Seller via a mutually agreed upon format.
Payment in full is due thirty (30) days from the date Exabyte pulls
Product for its consumption.
In the event Product is not pulled within sixty (60) days of receipt by
Exabyte, Seller shall notify Exabyte and any such Product will then be invoiced
and payment shall be due within thirty (30) days from the date of Seller's
invoice.
8. CANCELLATION. Exabyte may cancel a purchase order or a blanket
purchase order, in whole or part, at any time upon written notice to Seller
specifying the extent of the cancellation. In the event Exabyte cancels any
purchase order or blanket purchase order, Exabyte shall not be responsible for
any payments beyond what is stated in the Product Lead Time Model.
9. TERMINATION. Exabyte may terminate this Agreement at any time
without cause by providing ten (10) days prior written notice. Purchase Orders
issued prior to termination shall survive unless otherwise cancelled.
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In the event Exabyte terminates this Agreement for any reason, Exabyte
shall not be responsible for any payments beyond what is stated in the Product
Lead Time Model.
10. INVENTORY AND SECURITY. Exabyte shall maintain a separation of
Product from the goods of Exabyte and other third parties until pulled for
Exabyte's consumption. Exabyte shall not cause any lien or charge of any third
party to attach to the Product.
During the term of this Agreement, Seller may request access to the
facilities where Seller's Products are located for inspection purposes. In order
to fulfill Seller's auditing requirements, Seller may request Exabyte to provide
a letter to Seller detailing the quantity of Product at Exabyte's SMI warehouse.
Exabyte agrees to take reasonable measures to secure and protect
Seller's Products from loss or damage that are under Exabyte's control and
stored at Exabyte's SMI warehouse. Such measures shall include the same degree
of care that Exabyte utilizes to protect its own products.
11. INSURANCE. For Exabyte's SMI warehouse where Product is located,
Exabyte shall maintain in full force and effect, or self-insure at its option,
during the term of this Agreement commercial general liability insurance with
coverage limits of not less than one million dollars ($1,000,000) per occurrence
and employer's liability insurance and worker's compensation insurance as
required by law. At Seller's request, Exabyte shall provide Seller with a
certificate of insurance evidencing the insurance coverage required under this
Section and naming Seller as additional insured.
Seller shall at its own expense, maintain the customary insurance for
Product.
12. LIMITATION OF LIABILITY. IN NO CASE SHALL SELLER BE ENTITLED TO OR
EXABYTE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF
PROFIT, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR
BREACH OF THIS AGREEMENT, INCLUDING BREACH OF WARRANTY, OR IN TORT, EVEN IF
EXABYTE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
13. ENTIRE AGREEMENT. The entire agreement between the parties
concerning this subject consists of this Agreement and any documentation
exchanged hereunder, the Purchase Order Standard Terms and Conditions and if
applicable, the Purchase Agreement. This document constitutes our complete
agreement and replaces all prior oral or written communications between the
parties regarding the subject matter hereof. In the event of any conflict
between this Agreement and the documents referenced herein, the order of
precedence shall be: First, the terms and conditions of this Agreement, then,
the Purchase Agreement, then, the Purchase Order Standard Terms and Conditions.
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This Agreement does not imply any commitment to purchase products or
services by Exabyte. The United Nations Convention on International Sale of
Goods does not apply. If any part of this Agreement is found to be invalid or
unenforceable in any respect, the validity, legality and enforceability of any
such part shall in every other respect and the remainder of this Agreement shall
continue in effect. Any disputes arising under this Agreement shall be decided
by state or federal courts in Boulder or Denver County, State of Colorado. The
Parties consent to the jurisdiction and venue of such courts.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their
duly authorized representatives, effective as of the last date signed below,
__________ ("Effective Date").
FOR EXABYTE CORPORATION: FOR SELLER:
By: By:
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Title: Title:
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Date: Date:
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