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Exhibit 10.4
* 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 406 of the Securities
Act of 1933, as amended.
CONTRACT # AN21990015
ACCEPTANCE SHALL BE INDICATED
BY SIGNING AND RETURNING
DUPLICATE TO:
CHRISTOPHER M. CHRCEK
LUCENT TECHNOLOGIES OPLINK COMMUNICATIONS INC.
1600 OSGOOD STREET 3475 NORTH FIRST STREET
NORTH ANDOVER, MA 01845 SAN JOSE, CA 95134-1803
ATTN: C. DEREK STATHAM
Lucent Technologies Inc. ("Company") agrees to purchase and Oplink
Communications, Inc. ("Supplier") agrees to sell in accordance with the terms
and conditions stated in this Agreement and any attachments to this Agreement.
MATERIAL - Such quantities of [ * ] of Supplier's manufacture (the "material")
as may be ordered by Company during the period from July 1, 1999 through June
30, 2000.
PRICE - As set forth in Attachment "A" to this Agreement.
TERMS OF PAYMENT - Net 2%/10 upon receipt of invoice
F.O.B. - San Jose, CA
MATERIAL ON CONSIGNMENT - Company and Supplier shall mutually agree to the
quantity of each part that will be in the initial inventory. Thereafter, Company
shall send to Supplier via facsimile, EDI or electronic mail transmission by
Tuesday of each week, a Weekly Demand Summary for each part number.
(1) Consignment Site - Lucent Technologies Inc. 1600 Osgood Street,
North Andover, MA 01845. If this site is not controlled by Company,
arrangements for such storage shall be made between Company and the entity which
controls this site.
(2) Consigned Material Storage - Upon receipt of each shipment of
Consigned Material, Company shall cause it to be placed in storage ("Consigned
Material Storage") at the Consignment Site. Supplier may physically inspect
Consigned Material in Consigned Material Storage, with proper advance
notification, at mutually agreeable times during normal business hours.
(3) Blanket Consignment Order and Weekly Demand Report - A consignment
order will cover a twelve month period (the "Blanket Consignment Order"). Each
Week Company shall
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* CONFIDENTIAL TREATMENT REQUESTED
1.
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furnish to Supplier a Weekly Demand Report which sets forth a fifty-two (52)
week rolling forecast, the number of units received the previous week, the
number of units withdrawn by Company the previous week, and the balance of
Consigned Material in Consigned Material Storage. The forecasts are not
commitments. Company's commitment is for the number of units withdrawn by
Company from Consigned Material Storage plus the authorized stock set forth in
the subsection entitled "Authorized Stock", subject to the subsection below
entitled "Termination".
(4) Authorized Stock - Supplier shall review the Weekly Demand Report
and adjust Consigned Material Storage stocks and Supplier's work in process as
set forth herein. Supplier shall manufacture and ship enough material into
Consigned Material Storage so that Consigned Material Storage contains the first
four (4) weeks forecast for such part numbers based on the most current Weekly
Demand Report.
(5) Title and Risk of Loss - Upon receipt at the Consignment Site of a
particular lot of Consigned Material for Consigned Material Storage risk of loss
of such lot shall pass to Company. Upon withdrawal of such lot by Company from
Consigned Material Storage, title to such lot shall pass to Company and sale of
that lot shall be deemed to occur.
(6) Withdrawal from Consigned Material Storage - Company may withdraw
or cause to be withdrawn Consigned Material from Consigned Material Storage, at
any time and from time to time. Company shall keep or cause to be kept records
and report to Supplier the quantities withdrawn and the balance of Consigned
Material in Consigned Material Storage. Supplier's invoices for the Consigned
Material shall be based upon such withdrawal reports. All invoices for material
withdrawn from consignment shall be dated as of the first day of the month
following withdrawal. Supplier shall regularly replace quantities withdrawn to
maintain mutually agreed stock support levels as indicated on the applicable
orders.
(7) Shipping Information - Promptly after each shipment of Consigned
Material under this Agreement, Supplier shall furnish to Company and, if Company
so requests, to a designated party at the Consignment Site, a written report
setting forth at least the following: (a) Company's Order Number; (b)
Consignment Destination; (c) Origin Location; (d) Name of Carrier and Truck
Number or Railcar Number; (e) Lot Identification Number of each lot; (f) Net
weight of each lot; and (g) Description and Quantity of Material in each lot.
(8) Personal Property Taxes - Supplier shall be responsible for the
reporting and payment of personal property taxes, if any, on such Consigned
Material Storage by Company.
(9) Transportation Loss and Damage or Hidden Manufacturing Defects. As
to loss of or damage to Consigned Material which is reasonably apparent upon
delivery from a carrier, Company shall cause the following to be done:
(a) at time of the delivery, mark delivery receipt with appropriate
exceptions describing the damage before signing; and
(b) at the time of delivery, request the carrier to either inspect the
loss or damage and forward to Supplier a signed exception report outlining the
extent of loss or damage, or issue a written waiver of inspection and forward it
to Supplier; and
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(c) within ten days after delivery, inspect the damaged material and
notify Supplier whether Company will (i) accept it at a mutually agreed lower
price reflecting the transportation damage (if Supplier had the risk of loss) or
the manufacturing defect, or (ii) reject it. Rejected lots shall be set aside by
Company pending disposition by Supplier as soon as reasonably possible but no
later than sixty days following delivery, after which time any such damaged
Consigned Material remaining undisposed of shall be deemed to be abandoned and
Company may dispose of it as it sees fit without any obligation to Supplier.
As to concealed transportation damage or hidden manufacturing defects in
material, if after withdrawal of Consigned Material from Consigned Material
Storage, Company discovers concealed transportation damage or defective
material, Company shall notify Supplier within five days of such discovery, take
reasonable steps to preserve evidence of how such damage occurred and take all
actions provided for in subparagraph (c) above. Where Consigned Material Storage
is located on premises other than Company premises, Company shall direct the
owner of such other premises to comply with the procedure set forth in this
clause.
(10) Termination - Company may at any time, and without cause terminate
any or all Blanket Consignment Orders, in whole or in part, upon written notice
to Supplier. Upon receipt of such notice, Supplier shall immediately stop work
as specified in the notice to Supplier. Company's liability to Supplier with
respect to such termination shall be limited to: (1) the purchase price for all
material withdrawn by Company from Consigned Material Storage through the
termination date; (2) the purchase price for finished material not to exceed the
maximum stock level for the four (4) most recent Weekly Demand Reports issued
just prior to the effective date of termination (such finished material shall
include material in transit to Company and units already in Consigned Material
Storage as Authorized Stock); (3) Supplier's manufacturing costs for work in
process not to exceed the next two (2) weeks beyond the maximum Authorized Stock
based on the then current Weekly Demand Report; and (4) Supplier's purchase
price of raw material not to exceed the next two (2) weeks beyond the maximum
Authorized Stock based on the then current Weekly Demand Report (not usable in
Supplier's other operations or salable to Supplier's other customers). If
requested, Supplier agrees to substantiate the manufacturing costs for work in
process and the purchase price of the raw material with proof satisfactory to
Company. Upon such termination, the parties shall meet promptly to determine the
finished material, work in process and raw material for which Company is
responsible as set forth above. Supplier shall ship the finished material (to
the extent not already in transit or in Consigned Material Storage) and raw
materials to Company pursuant to shipping schedules agreed upon by the parties.
As to work in process, Supplier shall, at Company's option, ship it to Company
pursuant to shipping schedules agreed upon by the parties or scrap it.
NEW AND CHANGED METHODS, PROCESSES, AND EQUIPMENT - Supplier agrees to keep
abreast of major developments in Supplier's industry and to promptly advise
Company of any developments, which might affect the production of any material
under this Agreement.
If during the term of this Agreement Supplier's costs are reduced by using
improvements from the:
(1) adoption of new production methods, processes, techniques, or
materials, or
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(2) use of additional, new, or different equipment or facilities,
Prices shall be reduced by agreement of the parties to fairly reflect such
reduction.
NOTICES - Any notice or demand which under the terms of this Agreement or under
any statute must or may be given or made by Supplier or Company shall be in
writing and shall be given or made by confirmed facsimile, or similar
communication or by certified or registered mail addressed to the respective
parties as follows:
To: Lucent Technologies Inc.
1600 Osgood Street,
North Andover, MA 01845
Attn: Christopher M. Chrcek
To: Oplink Communications, Inc.
3475 North First Street
San Jose, CA 95134-1803
Attn: Alex Hse
The effective dates of such notice shall be (1) upon evidence of successful
facsimile transmission, or (2) five days following the date mailed for certified
or registered letters and two days following the date mailed for overnight
letters, or (3) when delivered, if in person. The above addresses may be changed
at any time by giving prior written notice as above provided.
ORDERING COMPANIES - Lucent Technologies Inc. or any affiliated corporation,
partnership, or venture, both U.S. and foreign, as may be designated in writing
by Lucent Technologies Inc., may order under this Agreement. For the purpose of
this Agreement, the term "Company" shall mean the corporation or other entity
which enters into or issues a contract or order under this Agreement. An
affiliated corporation, partnership, or venture is an entity, a majority of
whose voting stock or ownership interest is owned directly or indirectly by
Lucent Technologies Inc. Any contract or order issued under this Agreement will
be a contractual relationship between the ordering Company and the Supplier and
Supplier shall look only to the ordering Company for performance of the ordering
Company's obligations under such contract or order.
OZONE DEPLETING CHEMICALS - Supplier hereby warrants that it is aware of
international agreements and pending legislation in several nations, including
the United States, which would limit, ban and/or tax importation of any product
containing, or produced using ozone depleting chemicals ("ODCs"), including
chloroflurocarbons, halons and certain chlorinated solvents. Supplier hereby
warrants that the material furnished to Company will conform to all applicable
requirements established pursuant to such agreements, legislation and
regulations, and the material furnished to Company will be able to be imported
and used lawfully (and without additional taxes associated with ODCs not
reported to Company by Supplier as set forth in this clause) under all such
agreements, legislation and requirements. Supplier also warrants that it is
currently reducing, or if Supplier is not the manufacturer of the material, is
currently causing the manufacturing vendor to reduce and will, in an expeditious
manner, eliminate, or, as applicable, have its manufacturing vendor eliminate
the use of ODCs in the manufacture of the material.
4.
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If the material furnished by Supplier under this Agreement is manufactured
outside the United States, Supplier shall, upon execution of this Agreement, and
at any time that new products are added to this Agreement or changes are made to
the material furnished under this Agreement, complete, sign and return to
Company the attached ODC Content Certification. The ODC Content Certification
must be signed by Supplier's facility manager, corporate officer or his
delegate.
The term "ODC content" on the ODC Content Certification means the total pounds
of ODC used directly in the manufacture of each unit of material. This includes
all ODCs used in the manufacturing and assembly operations for the material plus
all ODCs used by Supplier's vendors and any other vendors in producing
components or other products incorporated into the material sold to Company.
Supplier is responsible to obtain information on the ODC content of all
components and other products acquired to manufacture the material and to
incorporate such information into the total ODC content reported to Company;
provided however, that Supplier should not include in the ODC content those
components or other products which are manufactured in the United States.
Supplier hereby warrants to Company that all information furnished by Supplier
on the ODC Content Certification is complete and accurate and that Company may
rely on such information for any purpose, including but not limited to providing
reports to government agencies or otherwise complying with applicable laws.
Supplier shall cooperate with Company in responding to any inquiry concerning
the use of ODCs to manufacture the material or components thereof and to execute
without additional charge any documents reasonably required to certify the
absence or quantity of ODCs used to manufacture the material or components
thereof.
OZONE DEPLETING SUBSTANCES LABELING - Supplier warrants and certifies that all
products, including packaging and packaging components, provided to Company
under this Agreement have been accurately labeled, in accordance with the
requirements of 40 CFR Part 82 entitled "Protection of Stratospheric Ozone,
Subpart E - The Labeling of Products Using Ozone Depleting Substances."
REJECTIONS - If Company rejects any or all of the material, Company may, in
addition to all its other rights and remedies at law or equity, exercise one or
more of the following remedies: (1) return rejected material for full credit at
the price charged plus transportation charges from Supplier's plant and return;
or (2) accept a conforming part of any shipment; or (3) consider this Agreement
breached to the extent of the quantity rejected; or (4) have rejected material
replaced by Supplier at the purchase price stipulated in this Agreement.
RELEASES VOID - Neither party shall require (i) waivers or releases of any
personal rights or (ii) execution of documents which conflict with the terms of
this Agreement, from employees, representatives or customers of the other in
connection with visits to its premises and both parties agree that no such
releases, waivers or documents shall be pleaded by them or third persons in any
action or proceeding.
5.
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RIGHT OF ACCESS - Each party shall permit the other party reasonable access to
its facilities in connection with work under this Agreement. No charge shall be
made for such visits. It is agreed that prior notification will be given when
access is required.
ASSIGNMENT - Supplier shall not assign any right or interest under this
Agreement (excepting solely for moneys due or to become due) without the prior
written consent of Company. Supplier shall be responsible to Company for all
Work performed by Supplier's subcontractor(s) at any tier.
BEST PRICE - If, at any time during the term of this Agreement, Supplier should
sell to any customer other than to an affiliate or subsidiary of Supplier,
material at least equal or similar in quality and volume at a price lower than
that in effect hereunder, Company shall pay the lower price on all deliveries of
material which are made during the period when such lower price is in effect.
Upon ten (10) days written notice, Company, or Company's authorized
representatives, may audit Suppliers' applicable books and records for the
purpose of verifying Supplier's compliance with this provision.
CHOICE OF LAW - This Agreement and all transactions under it shall be governed
by the laws of the State of New Jersey excluding its choice of laws rules and
excluding the Convention for the International Sale of Goods. Supplier agrees to
submit to the jurisdiction of any court, wherein an action is commenced against
Company based on a claim for which Supplier has agreed to indemnify Company
under this Agreement. With respect to disputes between the parties, the parties
agree to submit to the jurisdiction of the state and federal courts of New
Jersey.
COMPLIANCE WITH LAWS - Supplier and all persons furnished by Supplier shall
comply at their own expense with all applicable laws, ordinances, regulations
and codes, including the identification and procurement of required permits,
certificates, licenses, insurance, approvals and inspections in performance
under this Agreement.
ENTIRE AGREEMENT - This Agreement shall incorporate the typed or written
provisions on Company's orders issued pursuant to this Agreement and shall
constitute the entire agreement between the parties with respect to the subject
matter of this Agreement and the order(s) and shall not be modified or
rescinded, except by a writing signed by Supplier and Company. Printed
provisions on the reverse side of Company's orders (except as specified
otherwise in this Agreement) and all provisions on Supplier's forms shall be
deemed deleted. Estimates or forecasts furnished by Company shall not constitute
commitments. The provisions of this Agreement supersede all contemporaneous oral
agreements and all prior oral and written communications and understandings of
the parties with respect to the subject matter of this Agreement.
FORCE MAJEURE - Neither party shall be held responsible for any delay or failure
in performance of any part of this Agreement to the extent such delay or failure
is caused by fire, flood, strike, civil, governmental or military authority, act
of God, or other similar causes beyond its control and without the fault or
negligence of the delayed or nonperforming party or its subcontractors.
Supplier's liability for loss or damage to Company's material in Supplier's
possession or control shall not be modified by this clause. When a party's delay
or
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nonperformance continues for a period of at least fifteen (15) days, the other
party may terminate, at no charge, this Agreement or an order under the
Agreement.
HEAVY METALS AND/OR CFC IN PACKAGING - Supplier warrants to Company that no
lead, cadmium, mercury or hexavalent chromium have been intentionally added to
any packaging or packaging component (as defined under applicable laws) to be
provided to Company under this Agreement and that packaging materials were not
manufactured using and do not contain chlorofluorocarbons. Supplier further
warrants to Company that the sum of the concentration levels of lead, cadmium,
mercury and hexavalent chromium in the package or packaging component provided
to Company under this Agreement does not exceed 100 parts per million. Upon
request, Supplier shall provide to Company Certificates of Compliance certifying
that the packaging and/or packaging components provided under this Agreement are
in compliance with the requirements set forth above in this clause.
IDENTIFICATION - Supplier shall not, without Company's prior written consent,
engage in publicity related to this Agreement, or make public use of any
Identification in any circumstances related to this Agreement. "Identification"
means any semblance of any trade name, trademark, service mark, insignia,
symbol, logo, or any other designation or drawing of Lucent Technologies Inc. or
its affiliates. Supplier shall remove or obliterate any Identification prior to
any use or disposition of any material rejected or not purchased by Company.
IMPLEADER - Supplier shall not implead or bring an action against Company based
on any claim by any person for personal injury or death to an employee of
Company for which Company has previously paid or is obligated to pay worker's
compensation benefits to such employee or claimant and for which such employee
or claimant could not otherwise bring legal action against Company.
INDEMNITY - At Company's request, Supplier agrees to indemnify, defend and hold
harmless Company, its affiliates, customers, employees, successors and assigns
(all referred to as "Company") from and against any losses, damages, claims,
fines, penalties and expenses (including reasonable attorney's fees) that arise
out of or result from: (1) injuries or death to persons or damage to property,
including theft, in any way arising out of or caused or alleged to have been
caused by the Work or services performed by, or material provided by Supplier or
persons furnished by Supplier; (2) assertions under Workers' Compensation or
similar acts made by persons furnished by Supplier; or (3) any failure of
Supplier to perform its obligations under this Agreement.
INFRINGEMENT - Supplier shall indemnify and save harmless Company, its
affiliates and their customers, officers, directors, and employees (all referred
to in this clause as "Company") from and against any losses, damages,
liabilities, fines, penalties, and expenses (including reasonable attorneys'
fees) that arise out of or result from any and all claims (1) of infringement of
any patent, copyright, trademark or trade secret right, or other intellectual
property right, private right, or any other proprietary or personal interest,
and (2) related by circumstances to the existence of this Agreement or
performance under or in contemplation of it (an Infringement Claim). If the
Infringement Claim arises solely from Supplier's adherence to Company's written
instructions regarding services or tangible or intangible goods provided by
Supplier (Items) and if the Items are not (1) commercial items available on the
open market or the same as such items,
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or (2) items of Supplier's designated origin, design or selection, Company shall
indemnify Supplier. Company or Supplier (at Company's request) shall defend or
settle, at its own expense any demand, action or suit on any Infringement Claim
for which it is indemnitor under the preceding provisions and each shall timely
notify the other of any assertion against it of any Infringement Claim and shall
cooperate in good faith with the other to facilitate the defense of any such
Claim.
INSURANCE - Supplier shall maintain and cause Supplier's subcontractors to
maintain during the term of this Agreement: (1) Workers' Compensation insurance
as prescribed by the law of the state or nation in which the Work is performed;
(2) employer's liability insurance with limits of at least $500,000 for each
occurrence; (3) automobile liability insurance if the use of motor vehicles is
required, with limits of at least $1,000,000 combined single limit for bodily
injury and property damage per occurrence; (4) Commercial General Liability
("CGL") insurance, ISO 1988 or later occurrence form of insurance, including
Blanket Contractual Liability and Broad Form Property Damage, with limits of at
least $1,000,000 combined single limit for bodily injury and property damage per
occurrence; and (5) if the furnishing to Company (by sale or otherwise) of
material or construction services is involved, CGL insurance endorsed to include
products liability and completed operations coverage in the amount of $5,000,000
per occurrence. All CGL and automobile liability insurance shall designate
Lucent Technologies Inc., its affiliates, and its directors, officers and
employees (all referred to as "Company") as additional insured. All such
insurance must be primary and non-contributory and required to respond and pay
prior to any other insurance or self-insurance available. Any other coverage
available to Company shall apply on an excess basis. Supplier agrees that
Supplier, Supplier's insurer(s) and anyone claiming by, through, under or in
Supplier's behalf shall have no claim, right of action or right of subrogation
against Company and its customers based on any loss or liability insured against
under the foregoing insurance. Supplier and Supplier's subcontractors shall
furnish prior to the start of Work certificates or adequate proof of the
foregoing insurance, including if specifically requested by Company,
endorsements and policies. Company shall be notified in writing at least thirty
(30) days prior to cancellation of or any change in the policy. Insurance
companies providing coverage under this Agreement must be rated by A-M Best with
at least an A- rating.
INVOICING FOR GOODS - Supplier shall: (1) render original invoice, or as
otherwise specified in this Agreement, showing Agreement and order number,
through routing and weight; (2) render separate invoices for each shipment
within twenty-four (24) hours after shipment; and (3) mail invoices with copies
of bills of lading and shipping notices to the address shown on this Agreement
or order. If prepayment of transportation charges is authorized, Supplier shall
include the transportation charges from the FOB point to the destination as a
separate item on the invoice stating the name of the carrier used.
MEDIATION - If a dispute relates to this Agreement, or its breach, and the
parties have not been successful in resolving such dispute through negotiation,
the parties agree to attempt to resolve the dispute through mediation by
submitting the dispute to a sole mediator selected by the parties or, at any
time at the option of a party, to mediation by the American Arbitration
Association ("AAA"). Each party shall bear its own expenses and an equal share
of the expenses of the mediator and the fees of the AAA. All defenses based on
passage of time shall be suspended pending the termination of the mediation.
Nothing in this clause shall be construed to preclude any party from seeking
injunctive relief in order to protect its rights pending mediation.
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PAYMENT TERMS - Invoices shall be paid in accordance with the terms in this
Agreement, and due dates for payment shall be computed from the date of receipt
of invoices by Company.
RIGHT OF ENTRY - Each party shall have the right to enter the premises of the
other party during normal business hours with respect to the performance of this
Agreement including an inspection or a Quality Review, subject to all plant
rules and regulations, clearances, security regulations and procedures as
applicable. Each party shall provide safe and proper facilities for such
purpose.
SHIPPING - Supplier shall: (1) ship the material covered by this Agreement or
order complete unless instructed otherwise; (2) ship to the destination
designated in the Agreement or order; (3) ship according to routing instructions
given by Company; (4) place the Agreement and order number on all subordinate
documents; (5) enclose a packing memorandum with each shipment and, when more
than one package is shipped, identify the package containing the memorandum; and
(6) mark the Agreement and order number on all packages and shipping papers.
Adequate protective packing shall be furnished at no additional charge. Shipping
and routing instructions may be furnished or altered by Company without a
writing. If Supplier does not comply with the terms of the FOB clause of this
Agreement or order or with Company's shipping or routing instructions, Supplier
authorizes Company to deduct from any invoice of Supplier (or to charge back to
Supplier), any increased costs incurred by Company as a result of Supplier's
noncompliance.
SOFTWARE LICENSE GRANT - Except as stated otherwise in this order, Company shall
have a world-wide, non-exclusive, royalty-free, perpetual, transferable license
to use, reproduce and sublicense all software furnished to Company by Supplier
under this Agreement. Company will not reverse compile or disassemble the
software, nor will Company reproduce the software for the purpose of furnishing
it to others.
SUPPLIER'S INFORMATION - Supplier shall not provide under, or have provided in
contemplation of, this Agreement any idea, data, program, technical, business or
other intangible information, however conveyed, or any document, print, tape,
disc, semiconductor memory or other information-conveying tangible article,
unless Supplier has the right to do so, and Supplier shall not view any of the
foregoing as confidential or proprietary.
SURVIVAL OF OBLIGATIONS - The obligations of the parties under this Agreement,
which by their nature would continue beyond the termination, cancellation or
expiration of this Agreement, shall survive termination, cancellation or
expiration of this Agreement.
TAXES - Company shall reimburse Supplier only for the following tax payments
with respect to transactions under this Agreement unless Company advises
Supplier that an exemption applies: state and local sales and use taxes, as
applicable. Taxes payable by Company shall be billed as separate items on
Supplier's invoices and shall not be included in Supplier's prices. Company
shall have the right to have Supplier contest any such taxes that Company deems
improperly levied at Company's expense and subject to Company's direction and
control.
TITLE AND RISK OF LOSS - Title and risk of loss and damage to material purchased
by Company under this Agreement shall vest in Company when the material has been
delivered at
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the FOB point. If this Agreement or an order issued pursuant to this Agreement
calls for additional services to be performed after delivery, Supplier shall
retain title and risk of loss and damage to the material until the additional
services have been performed. If Supplier is authorized to invoice Company for
material upon shipment or prior to the performance of additional services, title
to material shall vest in Company upon payment of the invoice, but risk of loss
and damage shall pass to Company when the additional services have been
performed.
USE OF INFORMATION - Supplier shall view as Company's property any idea, data,
program, technical, business or other intangible information, however conveyed,
and any document, print, tape, disc, tool, or other tangible
information-conveying or performance-aiding article owned or controlled by
Company, and provided to, or acquired by, Supplier under or in contemplation of
this Agreement (Information). Supplier shall, at no charge to Company, and as
Company directs, destroy or surrender to Company promptly at its request any
such article or any copy of such Information. Supplier shall keep Information
confidential and use it only in performing under this Agreement and obligate its
employees, subcontractors and others working for it to do so, provided that the
foregoing shall not apply to information previously known to Supplier free of
obligation, or made public through no fault imputable to Supplier.
WARRANTY - Supplier warrants to Company and its customers that material
furnished will be new, merchantable, free from defects in design, material and
workmanship and will conform to and perform in accordance with the
specifications, drawings and samples. These warranties extend to the future
performance of the material and shall continue five years after the material is
accepted by Company. Supplier also warrants to Company and its customers that
services will be performed in a first class, workmanlike manner. If material
furnished contains manufacturers' warranties, Supplier hereby assigns such
warranties to Company and its customers. All warranties shall survive
inspection, acceptance and payment. Material or services not meeting the
warranties will be, at Company's option, returned for or subject to refund,
repaired, replaced or reperformed by Supplier at no cost to Company or its
customers and with transportation costs and risk of loss and damage in transit
borne by Supplier. Repaired and replacement material shall be warranted as set
forth above in this clause. SUPPLIER'S LIABILITY FOR CONSEQUENTIAL AND
INCIDENTAL DAMAGES (EXCEPT PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE) ARISING
OUT OF BREACH OF WARRANTY SHALL NOT EXCEED EIGHT MILLION DOLLARS ($8,000,000)
PER OCCURRENCE. THE LIMITATION OF LIABILITY ABOVE SHALL NOT APPLY TO SUPPLIER'S
OBLIGATIONS UNDER THE INFRINGEMENT CLAUSE OR DUTIES OF CONFIDENTIALITY.
ELECTRONIC DATA INTERCHANGE - Supplier agrees, if requested by Lucent, to
implement "Electronic Data Interchange" (EDI) as an electronic means of trading
business document with Lucent. The electronic business documents include
purchase orders, acknowledgements, purchase order changes, ship notices,
invoices, remittance advice, electronic funds transfer (EFT) or such purchasing
communications as may be requested by Lucent for transactions under this
Agreement. Supplier shall, at its sole expense, obtain, make fully operational
and maintain all equipment, software and other materials set forth in Company's
EDI Planning Guide. Supplier shall also execute an Electronic Purchasing
Agreement with Company at the time of Lucent's request to initiate EDI as
described in this clause.
YEAR 2000 WARRANTY - With respect to all Material, Equipment, Services and
Software provided to Company under this Agreement, Supplier warrants to Company
and its customers
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that: (i) the operation of such deliverables on or after January 1, 2000,
without limitation as to date, shall in no way be different from their operation
prior to that date; and (ii) such deliverables will be able to process, store,
record and present data containing dates in the Year 2000, and thereafter
without limitation as to date, in the same manner as data containing dates prior
to the Year 2000. Supplier further warrants that to the extent its internal
systems impact its relationship with Company, such systems also comply with the
foregoing warranties. Upon request by Company, Supplier agrees to: (i) provide
written certification of the foregoing warranties to Company and its customers;
and (ii) allow Company to reasonably verify compliance with these warranties.
COMPLIANCE WITH ENVIRONMENTAL, OCCUPATIONAL HEALTH AND SAFETY (EH&S) LAWS -
Supplier and all persons furnished by Supplier shall comply at their own expense
with all applicable EH&S laws, ordinances, regulations and codes, including the
identification and procurement of required permits, certificates, licenses,
insurance, approvals and inspections in performance under this Agreement.
ENVIRONMENTAL MANAGEMENT SYSTEMS - Supplier warrants to Company that it intends
to implement elements of an internationally recognized environmental management
system (EMS) standard, for example ISO 14001, or Eco-Management and Audit
Scheme. As part of the EMS, Supplier agrees to establish environmental
objectives/targets that will lead to improved environmental performance. At a
minimum, Supplier agrees to implement the following EMS elements within three
(3) years of the date of this Agreement.
ENVIRONMENTALLY RESTRICTED SUBSTANCES - Supplier warrants to Company that none
of the following substances are used or will be used in the manufacture or
processing of products supplied to Company nor do the products contain any
measurable amount of the following substances:
<TABLE>
<S> <C>
Asbestos (all types) Trichlorofluoroethane (CFC 11)
Cadmium and Cadmium Compounds (used as a dye, pigment or stabilizer in Dichlorodifluoromethane (CFC 12)
any plastic, paint or lacquer, or plating material)
Lead Pigments (excludes lead compounds in plastics if total lead Chlorotrifluoromethane (CFC 13)
content in plastic is less than 50% and no substitute exists)
Polychloriated Biphenyls (PCBs) Pentachlorofluoroethane (CFC 111)
Polybrominated Biphenyls (PCBs) Tetrachlorodifluoroethane (CFC 112)
Polybrominated Biphenyl Ether (PBBE) Trichlorotrifluoroethane (CFC 113)
Polychlorinated Triphenyls (PCT) Dichlorotetrafluoroethane (CFC 114)
Pentachlorophenols (PCP) Monochloropentafluoroethane (CFC 115)
Polybromodipbenyioxides (PBDOs) Heptachlorofluoropropane (CFC 211)
Polychlorinated and polybrominated dibenzodioxins Pentachlorotrifluoropropane (CFC 213)
Polychlorinated and polybrominated dibenzofurans Tetrachlorotetrafluoropropane (CFC 214)
Vinyl Chloride (As Residual Monomer) Trichloropentafluoropropane (CFC 215)
Ethylene glycol monomethyl ether (CAS # 109-86-4) Dichlorohexafluoropropane (CFC 216)
Ethylene glycol monomethyl ether acetate (CAS # 110-49-6) Monochloroheptafluoropropane (CFC 217)
</TABLE>
11.
<PAGE>
<TABLE>
<S> <C>
Ethylene glycol monoethyl ether (CAS # 110-80-5) Bromochlorodifluoromethane (HALON 1211)
Ethylene glycol monoethyl ether acetate (CAS # 11 l- 15-9) Bromotrifluoromethane (HALON 1301)
Diethylene glycol dimethyl ether (CAS # 111-96-6) Dibromotetrafluoromethane (HALON 2402)
Diethylene glycol monomethyl ether (CAS # 111-77-3) Carbon Tetrachloride (CCl4(4))
Triethylene glycol dimethyl ether (CAS # 112-49-2) l, l, 1 Trichloroethane (CH(2)CCI(3))
</TABLE>
PRODUCT SAFETY - Supplier warrants to Company that products are designed to meet
customer mandated industry standards (e.g., Underwriters Laboratories, Inc.,
International Organization for Standardization, International Electrotechnical
Commission). Supplier also warrants to Company that human, environmental and
physical factors that have the potential to impact customers are considered in
product design by following the design hierarchy of: (1) designed out hazards;
(2) including protective devices that are integral to the design of the product,
if hazards cannot be designed out, and (3) adding warning labels, if there are
hazards which cannot practicably be removed by design changes or controlled by
protective devices.
ATTACHMENTS - The following attachments are hereby made part of this Agreement:
BAR CODE SHIPPING AND RECEIVING LABELS - Supplier shall at its sole expense
place Company's specified bar code labels on all shipping packages and
containers for the material shipped under this Agreement. Such bar code labels
and the placement thereof shall meet the "Shipping & Receiving Bar Code Label
Standard AT&T 801-001-105," Issue 3 (a copy of which Supplier has in its
possession). Company may change such specification upon written notice to
Supplier and Supplier shall comply with such changes.
FREIGHT CLASSIFICATION. Material purchased under this Agreement shall be shipped
to Company or Company's customers subject to freight charges appropriate for
goods classified as Electric Condensers or Parts Not Otherwise Indexed (NOI).
HEADINGS - The headings of the clauses in this Agreement are inserted for
convenience only and are not intended to affect the meaning or interpretation of
this Agreement.
AGREED:
<TABLE>
<S> <C>
Oplink Communications, Inc. Lucent Technologies Inc.
3475 North First Street 1600 Osgood Street
San Jose, CA 95134-1803 North Andover, MA 01845
By: /s/ C.D. Statham By: /s/ Christopher Chrcek
------------------------- ------------------------------
Title President & CEO Title Buyer
---------------------- ---------------------------
Date 07/20/99 Date 07/08/99
---------------------- -----------------------------
</TABLE>
12.
<PAGE>
ATTACHMENT A - PRICING
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------
Comcode Lucent Description Oplink P/N Price Effective
From July 1, 1999 Through
June 30, 2000
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
[ * ] [ * ] [ * ] $[ * ]
---------------------------------------------------------------------------------------------------------------------
[ * ] [ * ] [ * ] $[ * ]
---------------------------------------------------------------------------------------------------------------------
[ * ] [ * ] [ * ] $[ * ]
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
</TABLE>
Note 1: The comcodes will be changed to 4XXXXXXXX format upon full device
qualification. Full qualification by Lucent is a condition of award.
Note 2: Standard lead time is 4 weeks ARO.
Note 3: The prices above are based on the following estimated total quantities
(sum of all [ * ]):
July 1, 1999 to June 30, 2000 - [ * ].
These estimates are not a commitment to purchase on the part of Company. Should
actual usage during the arrangement period deviate significantly from this
quantity both parties agree to meet in a timely manner to discuss a mutually
satisfactory resolution to this matter. Our understanding is that Oplink is open
to various options including extension of the agreement period as well as price
adjustment. Likewise, Lucent reserves the right to renegotiate to a lower price
should actual usage exceed the estimated total usage.
-----------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
13.
