<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.15
CORPORATE PURCHASE AGREEMENT
BETWEEN:
BUYER:
Name: COMPAQ COMPUTER CORPORATION AND ITS AFFILIATES
Address: P.O. BOX 692000 20555 S.H. 249 HOUSTON, TX 77269-2000
Contact Name: DIVISION COUNSEL - OPERATIONS Telephone Number:______________
AND:
SELLER:
Name: OVERLAND DATA INC.
Address: 8975 BALBOA AVENUE SAN DIEGO, CA
Contact Name: FRANK KIRCHHOFF Telephone Number: 619-571-5555
FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE
HEREBY ACKNOWLEDGED, BUYER AND SELLER HEREBY AGREE AS FOLLOWS:
SELLER AGREES TO PROVIDE BUYER with the Products, Services, Spares and/or other
materials specifically identified in properly executed Schedules of Products and
Spares at the applicable Effective Prices and in accordance with the terms and
conditions of this Corporate Purchasing Agreement (the "Agreement") between the
parties, which Agreement consists of (i) this signature page; (ii) the General
Terms for Purchasing, including any amendments thereto; (iii) any Supplemental
Terms of Agreement; and (iv) all Attachments/Exhibits.
PRODUCTS & SERVICES: The Products purchased under the Agreement shall be more
fully described in a Schedule of Products (containing Product part numbers,
descriptions, initial unit prices, and lead-times) as updated from time to time
in the most currently executed Pricing Schedule. The Spares purchased under the
Agreement shall be more fully described in a Schedule of Spares. The Services
acquired under this Agreement shall be more fully described in a Schedule of
Service Deliverables. Any other materials acquired under this Agreement shall be
more fully described in a Schedule of Other Deliverables. Whereas the parties
may agree to purchase other products, spares, and/or services, additional
Schedules of Deliverables may be added from time to time during the term of the
Agreement.
PRICES / CHARGES: The prices, fees, charges, and discounts ("Prices") for
Deliverables shall be initially set forth in a Schedule of Products and Spares.
Whereas the parties may agree, from time to time, to update Prices for any
Deliverable, such updated Prices shall be set forth in properly executed Pricing
Schedules and shall be the price at which Buyer is entitled to purchase such
Deliverables from Seller ("Effective Price") for the period of time specified
therein ("Pricing Period"). The Effective Price for any Deliverable, shall be
that which is contained in the most recently executed Pricing Schedule or, if
none exists, in the applicable Schedule of Deliverables.
AGREEMENT TERM: EFFECTIVE DATE: 6/7/2000 END DATE (OF INITIAL TERM): 6/7/2003
-------- --------
Notwithstanding anything to the contrary, the Agreement is not a requirements
contract and does not obligate Buyer to purchase any minimum quantity of
Deliverables but only establishes the terms and conditions for such purchases if
and when Buyer submits Orders in accordance with the Agreement. Capitalized
terms used on this signature page that are defined elsewhere in the Agreement
and shall have the meaning as there defined.
IN WITNESS WHEREOF, THE AUTHORIZED REPRESENTATIVES OF THE PARTIES HAVE EXECUTED
THIS AGREEMENT WHICH SHALL BECOME EFFECTIVE AS OF THE EFFECTIVE DATE WRITTEN
ABOVE.
SELLER: OVERLAND DATA, INC. BUYER: COMPAQ COMPUTER CORPORATION
By: /s/ Frank R. Kirchoff By: /s/ Richard Gentilini
------------------------------ -----------------------------
(Authorized Signature) (Authorized Signature)
Name: Frank R. Kirchhoff Name: Richard Gentilini
------------------------------ -----------------------------
(Typed or Printed) (Typed or Printed)
Title: Vice President of Sales Title: Director of Procurement
------------------------------ -----------------------------
(Typed or Printed) (Typed or Printed)
Division: Overland Data Division: Storage Products
------------------------------ -----------------------------
(Optional) (If Corporate, Identify Commodity
Area - If Site, Identify Location)
Date: June 7th, 2000 Date: 6-14-00
------------------------------ -----------------------------
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
CORPORATE PURCHASING AGREEMENT
GENERAL TERMS
The following general terms and conditions ("General Terms") and any amendments
hereto form part of the Corporate Purchase Agreement (the "Agreement") between
Buyer and Seller (collectively, the "parties") as identified on the signature
page of the Agreement. Subject to the provisions of these General Terms, Buyer
may elect to purchase goods, materials and/or services (individually or
collectively referrerd to as "Deliverables") from Seller. The Effective Date and
the End Date of the Agreement together with the contact persons of the parties
and their respective addresses for notice, are also identified on the signature
page of the Agreement.
1.0 PURPOSE
It is intended by the parties that the provisions of the Agreement,
including these General Terms, shall govern any purchase and sale of the
Deliverables including, as applicable, the Products, Spares, Services, or
other materials set forth in a Schedule of Deliverables forming part of
the Agreement.
2.0 DEFINITIONS
In addition to terms defined elsewhere in the Agreement, capitalized
terms used herein shall have the meanings set forth below:
2.1 "Affiliate" means, with respect to Buyer or Seller, (i) any other legal
entity controlling, controlled by, or under the common control with
Buyer, (ii) any OEM subcontractor of Buyer, and (iii) any subcontractor
or contractor of Buyer. As used in this definition, the term "control"
means the possession, directly or indirectly or the power to direct, or
cause the direction of the management and policy of the controlled
entity.
2.2 "Attachments" means any document or exhibit thereof that is mutually
agreed to by the parties and is used to provide additional information
and/or different terms and conditions relating to the Agreement.
Attachments may include, but is not limited to schedules, amendments,
addenda, and any other document that is mutually agreed upon by the
parties and incorporates by reference the General Terms for Purchasing.
2.3 "Business Day" means any day other than a Saturday, a Sunday, or holidays
on which banks in the State of *** are generally closed.
2.4 "Buyer Furnished Items" means any raw materials, components, tools,
products, equipment, documentation, services, and/or any other items to
be provided by Buyer to Seller including, but not limited to any
Buyer-Owned Materials identified in any applicable Owned Materials
Attachment, Order, or in any other Attachment forming part of the
Agreement.
2.5 "Buyer Products" means those Products manufactured, marketed, distributed
and/or otherwise made available by Buyer to Buyer's customers, which may
include hardware and software proprietary to Buyer and/or Buyer's
suppliers, including, without limitation, the Products acquired from
Seller under this Agreement.
2.6 "Change Order" means any written document or any written or electronic
Orders prepared, properly authorized, and issued by Buyer and accepted by
Seller, to identify changes to an existing Order previously accepted by
Seller for Deliverables,. A Change Order will typically contain the
Applicable Purchase Order number or electronic Order number affected, a
Change Order number, and a Change Order date signifying the effective
date of the change(s). The Change Order may include changes that affect,
but are not necessarily limited to (i) rescheduling item(s) Delivery
Date(s), (ii) adding and/or canceling item(s) in whole or in part, and/or
(iii) changes to Buyer designated destination point(s).
2.7 "Code" means computer programming instructions including, without
limitation, machine-readable computer programming instructions. Unless
specifically stated otherwise, "Code" shall include all Updates and
Enhancements thereto.
2.8 "Confidential Information" means tangible and intangible nonpublic
information that one party discloses to the other and designates as
confidential or which, under the circumstances surrounding such
disclosure, ought to be treated as confidential. "Confidential
Information" includes, but is not limited to, any and all of the parties'
product information relating to design, functionality, pricing,
manufacturing, or marketing; the terms and conditions of any proposed or
actual agreement between the parties; either party's business policies,
practices or trade secrets; and the information of others that is
received by either party under an obligation of confidentiality.
2.9 "Deliverables" means any goods, services, products, or other materials to
be provided by Seller in accordance with the Agreement and/or any
applicable Orders issued hereunder including, but not limited to,
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
those set forrth in any applicable Services Requirements Addendum;
Schedule of Products, Schedule of Services, Schedule of Spares, Schedule
of Other Deliverables; or contained in any other Attachment to the
Agreement and/or in any applicable Orders issued hereunder.
2.10 "Delivery Date" or "On-Dock Date" means; (i) the date stipulated on
Buyer's Order for the delivery of the specified Deliverables during
normal business hours and days to the Delivery Site designated by Buyer;
and (ii) the date stipulated on Buyer's Order for the performance of
Services to be completed by Seller as specified under Buyer's Order.
2.11 "Enhancements" means changes or additions, other than Updates, to Code
and related documentation, including all new releases, that improve
functions, add new functions, or improve performance by changes in
system, design, or coding.
2.12 "Electronic Transmission" the transmission of data between Buyer and
Seller in an electronic format including, but not limited to,
industry-standard Electronic Data Interchange techniques ("EDI");
Electronic Funds Transfer ("EFT"); Facsimile ("fax"); Electronic Mail
(email), World Wide Web ("WWW"); and Electronic File Exchanges of any
transaction set ("Electronic Interchanges"). Common Electronic
Transmissions are electronic orders, credit card purchases or orders, and
orders via the internet.
2.13 "Hazardous Materials" means any hazardous substance, hazardous waste,
hazardous chemical, hazardous air pollutant, pesticide, or other
substance identified as hazardous, infectious, radioactive or toxic under
any federal, state or local laws, regulations, or standards pertaining to
the protection of human health or safety, wildlife or the environment.
Hazardous Materials shall include, without limitation, all substances
identified as hazardous chemicals by California Occupational Safety and
Health Act (hereinafter referred to as Cal-OSHA) and under the federal
Occupational Safety and Health Act (hereinafter referred to as OSHA) and
all substances identified as hazardous wastes under the Resource
Conservation and Recovery Act or any comparable state statutes,
regulations or standards.
2.14 "Latent Defect" means a recurring failure of a Product Spare, or Material
to perform in accordance with the Specifications, the type of which
failure could not have been readily detected or anticipated by Seller
and/or Buyer, or Buyer's customer during normal inspection or use
thereof.
2.15 "Lead-Time" means the period of time extending from the date listed on
Order to the Delivery Date for Products, Spares and/or Services, DDP. The
Lead-Times for the Products shall be set forth in the Schedule of
Products, or in any applicable Orders, or as otherwise mutually agreed
upon in any subsequent Pricing Schedule.
2.16 "Like New Condition" means refurbished to the latest revision to meet all
applicable electrical, mechanical, firmware and cosmetic specifications
and Engineering documentation, including the replacement of damaged or
missing non-functioning parts.
2.17 "Materials" means (i) computer hardware, (ii) any written information,
Code, or documentation, including any machine-readable information, Code,
or documentation recorded on tangible media, or (iii) any combination
thereof provided, pursuant to the Agreement, to a party for the sole
purpose of enabling performance of the obligations contained herein.
"Materials" does not include Products, or Spares, or Services, or
intangible Confidential Information.
2.18 "Order(s)" means, collectively, any written Purchase Order, any credit
card purchase or order, any electronic order or electronic purchase order
employing EDI techniques, any industry standard EDI order, any telex or
facsimile order or purchase order, any telephonic order or purchase order
subsequently confirmed by Buyer in writing or by some electronic means
capable of printing a hard copy, any other written or electronic order,
and any internet orders employing the Internet and industry standard
Ecommerce techniques or EDI techniques; that are prepared, properly
authorized and issued by Buyer for the purchase of Products or Services.
"Orders" may be accepted by Seller in writing, electronically in the
manner prescribed in subsection 3.3 below, or in the manner otherwise
prescribed by Buyer (including, as applicable, by EDI means, industry
standard Ecommerce techniques, or by facsimile transmission), or by
commencement of performance of Services or by delivery of Products.
2.19 "Pricing Schedule" means, with respect to the purchase of Products, any
written instrument executed by one party and mutually agreed to by the
other party for purpose of (i) updating the part numbers for the Products
identified therein and (ii) updating the Effective Price at which Buyer
may purchase the Products during a stated Pricing. Any purchase by Buyer
of the Products listed in a properly executed Pricing Schedule shall be
goverend by the
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
terms and conditions of the Agreement, unless otherwise stated therein.
To be valid, a Pricing Schedule shall contain, at minimum, a current
Pricing Period, the part numbers and unit prices for the Product(s), the
written consent of both parties.
2.20 "Proprietary Rights" means all current and future patents, mask works,
copyrights, trade secrets, know-how and all other intellectual property
rights, including all applications, continuations and registrations with
respect thereto.
2.21 "Purchase Order" means a written document prepared by Buyer and accepted
by Seller to identify Products, Spares and/or Services to be furnished by
Seller pursuant to the terms and conditions of the Agreement. Such
Purchase Order will typically contain: (i) Purchase Order Number, (ii)
Purchase Order date, (iii) Purchase Order Item No. for each item ordered,
(iv) quantity of each Product, Spare or Service ordered, (v) Buyer and/or
Seller part number, (vi) revision designator for each Product/Spare,
(vii) unit price of each item, (viii) Delivery Date of each item, and
(ix) Buyer's designated destination point for each item.
2.22 "Product(s)" means goods, materials, components, or products that are
either created, manufactured, distributed, or otherwise made available by
Seller to Buyer for purchase by Buyer pursuant to the terms and
conditions of the Agreement and any applicable Order hereto. The Products
shall include any requisite and incidental materials, packaging,
documentation, Code, Software, and any other reasonably related Seller
Furnished Items that are needful due to the nature of the Product. The
Products are idendified in attached Schedules of Deliverables Part
numbers contained in any Schedule of Products may be updated from
time-to-time in mutually agreed upon Pricing Schedules. The updated
part-number for any given Product is located in the most recently
executed Pricing Schedule.
2.23 "RMA" means a Return Material Authorization number assigned by Seller for
a shipment of Products and/or Spares being returned by Buyer to Seller.
2.24 "Schedule of Products" means any written instrument executed by the
parties for the purpose of specifically identifying Product(s) the
parties intend to be covered by the Agreement. A Schedule of Products
shall contain, at minimum, the part numbers, descriptions, unit prices,
and Lead-Times for such Product(s).
2.25 "Schedule of Spares" means any written instrument executed by the parties
for the purpose of specifically identifying Spare(s) the parties intend
to be covered by the Agreement. A Schedule of Spares shall, at minimum,
contain the part numbers, descriptions, and unit prices, for such
Spare(s).
2.26 "Seller Furnished Items" means any raw materials, components, tools,
products, equipment, documentation, services, technical support, and/or
any other items that may be provided by Seller to Buyer including, but
not limited to any Seller-Owned Materials identified in any applicable
Owned Materials Attachment, Order, or in any other document forming part
of the Agreement.
2.27 "Services" or "Seller's Services" means the services or work made
available to Buyer by Seller and which are described, identified, or
listed in any attached or subsequently executed Services Requirements
Addendum that specifically references the Agreement, or in any other
applicable Exhibit, Addendum, Schedule or Attachment forming part of the
Agreement or forming part of any applicable Orders thereunder.
2.28 "Software" means (i) the software which is a component of, supplied with,
or bundled with, the Products, Spares or Services (whether in firmware or
on magnetic, optical or other media) and (ii) the end user documentation
for such software, including all Updates and Enhancements to such
software and documentation.
2.29 "Spare(s)" means any replacement parts/components, assemblies, or
sub-assemblies for the Product(s). Such spare parts shall include,
without limitation; the items described in any Schedule of Spares that
forms part of this Agreement.
2.30 "Specifications" means any instructions relating to the Seller's Services
or the manufacture of Products or Spares, including (i) the
specifications for the specific Product, Spares, and/or Services set
forth in a Specifications document; (ii) the specifications with regard
to the specific Product, Spares and/or Services generally published by
Seller; (iii) the General Quality Requirements set forth under a Quality
Assurance Addendum, and (iv) the Product Agency And Regulatory Compliance
Requirements set forth under an Agency and Regulatory Requirements
document. Specifications also include, but are not limited to, physical
or operational performance parameters, characterization and/or attributes
of the Products and Spares as identified elsewhere in the Agreement or in
any applicable Order(s).
2.31 "Updates" means any modifications or changes, other than Enhancements, to
Materials, Products, or Spares
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
for purposes of correcting Errors, such as bug fixes or other incidental
corrections.
3.0 ORDERS
3.1 Buyer may purchase Product(s), Spares and/or Services from Seller by
issuing properly authorized Orders to Seller. All such Orders shall set
forth the following items: quantity, price, delivery date, part number,
and revision level.
3.2 Seller shall accept any Order that materially conforms with the terms of
this Agreement. Seller shall use commercially reasonable efforts to send
Buyer written confirmation of such acceptance within *** after Seller's
receipt of a written Order from Buyer.
3.3 If Buyer issues an electronic Order, Seller shall electronically "Verify"
receipt of the electronic Order within *** of the electronic Order
transmission by Buyer. "Verify" or "Verfication," as used herein, shall
mean that Seller has, in fact, successfully received all necessary Order
information and requirements (e.g. quantity, price, delivery date, part
number, and revision level) from electronic mailbox and shall serve as
Seller's notification to Buyer of both the receipt of the electronic
Order from Buyer and the occurrence of any discrepancies relating to the
readiablity of such electronic Order. Seller shall return an electronic
Order acknowledgement ("EDI Acknowledgement") to Buyer within ***
following Seller's receipt of said Verfication. ***
3.4 All electronic Orders, Verifications, and EDI Acknowledgments
(collectively "EDI Transmissions") and other related data electronically
transmitted shall;
(1) specifically reference and be suject to the terms and conditions
of this Agreement, and
(2) be specially formatted in accordance with Buyer's policies,
specifications and procedures regarding electronic data
interchange information.
3.5 No oral, electronic, or written additional or different provisions
proposed by Seller in any acceptance, confirmation, or acknowledgment
shall apply unless expressly agreed to, in writing, by Buyer. Buyer
hereby gives notice of its objection to any additional or different terms
proposed by Seller.
3.6 ***
3.7 The parties agree that: (i) the provision of the Uniform Commercial Code
Section 2-201 (Statute of Frauds) shall not apply to these Electronic
Interchanges; (ii) these Electronic Interchanges shall be deemed to
satisfy any legal formalities requiring that agreements be in writing;
and (iii) computer maintained records when produced in hard copy form
shall constitute business records and shall be admissible, as such, to
the same extent as other generally recognized business records.
3.8 ***
3.9 No oral, written, or electronic data transmission by Seller in any credit
card acceptance, confirmation, verification, or acknowledgment, that
proposes additional or different provisions, shall apply unless expressly
agreed to in writing by Buyer. Buyer hereby gives notice of its objection
to any additional or different terms.
3.10 The terms governing the delivery of all Product(s), Spares, and/or,
Services ordered by Buyer will be interpreted in accordance with the
International Chamber of Commerce Incoterms 1990 Edition. ***
4.0 PRICING
4.1 The prices for Product(s), Spares and/or Services ("Prices") shall be
established from time to time by the parties executing and delivering a
Schedule of Products and/or a Schedule of Spares. The Prices set forth in
any such Schedule of Products or Schedule of Spares shall be fixed for
the period set forth therein. The Parties agree that Prices may be
updated from time to time, by mutual agreement of the parties. Such
updated pricing shall be contained in properly executed Pricing
Schedules.
4.2. ***
4.3. ***
4.4 ***
4.5 ***
5.0 WARRANTY
***
6.0 INDEMNIFICATION AND REMEDIES
6.1 ***
6.2 ***
6.3 ***
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
6.4 Subject to Subsection 6.5, upon the occurrence of a Default by a party
hereto the other party shall be entitled to exercise such rights and
remedies as are available at law or in equity including the right to seek
specific performance upon Seller's failure to deliver on a timely basis
unique products in conformity with the Specifications.
6.5 NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, LOST PROFITS AND UNLIQUIDATED INVENTORY), INDIRECT,
SPECIAL OR PUNITIVE DAMAGES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES EXCEPT (I) IN CONNECTION WITH A BREACH OF
THE CONFIDENTIALITY PROVISIONS SET FORTH IN THIS AGREEMENT ***
7.0 PAYMENT
7.1 Buyer shall make payment in full for the purchase price of all Product,
Spares, and/or Services ordered by Buyer hereunder (other than items
disputed by Buyer in good faith) and received by Buyer on or before the
*** after the date of Seller's invoice; provided, Seller's invoice shall
not be dated earlier than the shipment date of Product covered thereby.
***
7.2 Unless otherwise specified in an Exhibit or otherwise agreed to in
writing by the parties, payment shall be made in U.S. dollars.
8.0 TERM
The term of this Agreement shall be ***, ("Initial Term") commencing on
the date indicated on the signature page of this Agreement ("Effective
Date") and shall automatically renew at the conclusion of the Initial
Term for successive *** periods unless and until one party notifies the
other, not less than *** prior to the end of the Initial Term or any
subsequent *** term, that it does not intend to renew this Agreement.
This Agreement may terminate prior to the aforementioned stated term
under the circumstances set forth in Section 9.0 Notwithstanding the
foregoing, this Agreement shall remain in full force and effect and shall
be applicable to any Order issued by Buyer to Seller during the term of
this Agreement until all obligations under such Order have been
fulfilled.
9.0 TERMINATION
9.1 Either party (the "Non-Defaulting Party") may terminate this Agreement
and/or any Order issued hereunder at any time by written notice to the
other party (the "Defaulting Party") upon the occurrence of a Default by
the Defaulting Party. *** This Agreement shall terminate on the date of
such notice (the "Termination Date").
9.2 ***
9.3 ***
9.4 ***
10.0 FORCE MAJURE
10.1 Neither party shall be liable for its failure to perform any of its
obligations hereunder during any period in which performance is delayed
by fire, flood, war, embargo, riot or an unforeseeable intervention of
any government authority that causes complete business interruption
("Force Majeure"), provided that the party suffering such delay
immediately notifies the other party of the delay. ***
11.0 NOTICES
Any notice given under this Agreement shall be written or sent by telex
or facsimile. Written notice shall be sent by registered mail or
certified mail, postage prepaid, return receipt requested, or by any
other overnight delivery service which delivers to the noticed
destination, and provides proof of delivery to the sender. Any telex or
facsimile notice must be followed within three (3) days by written
notice. All notices shall be effective when first received at the
addresses set out on the front page of the Agreement or such other
addresses as may be notified to the other party pursuant to this
provision.
12.0 ***
13.0 COMPLIANCE WITH LAWS
13.1 All Product or Spares supplied and work performed under this Agreement
shall comply with all applicable United States and foreign laws and
regulations including, but not limited to, emission and safety standards,
the Occupational Safety and Health Act (29 U.S.C. Sections 651 et seq.),
the Fair Labor Standards Act of 1938 (29 U.S.C. Sections 201-219), the
Toxic Substance Control Act of 1976 (15 U.S.C. Section 2601), all laws
restraining the use of convict labor, and Worker's Compensation Laws. ***
Seller's failure to comply with any of the requirements of this Section
may result in a material breach of this Agreement.
13.2 All Product or Spares supplied and work performed under this Agreement
shall comply with all applicable laws and regulations. Without limiting
the foregoing, Seller shall comply with the Occupational Safety and
Health Act ("OSHA") 29 C.F.R. Sections 1910, 1200(b), and (g)(8); the
Toxic Substance Control Act ("TSCA") 15 U.S.C. Section 2612(a); and laws
restraining the use of convict labor: 18
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
U.S.C. Sections 1761 and 1762. Seller's failure to comply with any of the
requirements of this Section may result in a material breach of this
Agreement.
13.3 The following provisions and clauses of the Federal Acquisition
Regulation (FAR), 48 CFR Chapter 1, are hereby incorporated by reference,
with the same force and effect as if they were given in full text and are
hereby made binding upon the subcontractor or vendor. Where the clauses
or provisions say "Contractor", substitute "subcontractor or vendor."
(1) Nonexempt Subcontracts and Purchase Orders over $2,500: 52.222-36
Affirmative Action for Handicapped Workers (APR 1984)
(2) Nonexempt Subcontracts and Purchase Orders over $10,000 or
subcontracts and Purchase Orders the aggregate value of which in
any twelve month period exceeds or can be expected to exceed
$10,000: 52.222-26 Equal Opportunity (APR 1984).
(3) Nonexempt Subcontracts and Purchase Orders over $10,000: 52.222-21
Certification of Nonsegregated Facilities (APR 1984) 52.222-35
Affirmative Action for Special Disabled and Vietnam Era Veterans
(APR 1984).
(4) Subcontracts and Purchase Orders over the small purchase
limitation, $25,000: 52.219-13 Utilization of Women-Owned Small
Business (AUG 1986).
(5) Subcontracts over $500,000, except for small business concerns:
52.219-8 Utilization of Small Business Concerns and Small
Disadvantaged Business Concerns (FEB 1990).
13.4 The provisions of the Clean Air Act (42 U.S.C. Sections 7401 et seq.) and
the Clean Water Act (33 U.S.C. Sections 1251 et seq.) are made a part of
this Agreement
13.5 The provisions of any applicable State "Right-To-Know" laws and
regulations are made a part of this Agreement. A copy of the applicable
Product or Spares Safety Data Sheets as required under such laws and
regulations shall be provided by Seller upon delivery of Product or
Spares and updated as necessary.
13.6 This Agreement is subject to all applicable United States laws and
regulations relating to exports and to all administrative acts of the
U.S. Government pursuant to such laws and regulations.
13.7 The 1980 United Nations Convention on contracts for the international
sale of goods shall not apply to this Agreement or any Order issued under
this Agreement.
13.8 Seller agrees to comply with the United Stated Federal requirements
contained at Title 40, Code of Federal Regulations Part 82 - "Protection
of Stratospheric Ozone; Labeling". Moreover, Seller shall not supply to
Buyer any product or part that contains or has been manufactured using a
Class 1 ozone depleting substance, as that term is defined in the
Regulations, unless Seller has provided prior written notice to Buyer.
13.9 Seller agrees to comply with all terms and conditions of the Compaq
Supplier Compliance Policy, attached Exhibit F.
14.0 GRATUITIES
Each party represents that it has not offered nor given and will not (i)
offer nor give any employee, agent, or representative of the other party
any gratuity, or (ii) influence such person's normal job responsibilities
in any way with a view toward securing any business from the other party
or influencing such person with respect to the business between the
parties.
15.0 CONFIDENTIAL INFORMATION
15.1 The parties acknowledge that they have entered into a binding
Confidentiality and Nondisclosure Agreement ("NDA") and hereby agree to
abide by the terms of such NDA and any amendment thereto. All provisions
of such NDA are incorporated by reference and shall govern all
disclosures of Confidential Information made under the Agreement.
15.2 The parties acknowledge that the unauthorized disclosure of either
party's confidential information will cause irreparable harm.
Accordingly, the parties agree that the injured party shall have the
right to seek immediate injunctive relief enjoining such unauthorized
disclosure.
16.0 TRADEMARKS AND LOGOS
Subject to Compaq's Brand Standards Policy, Seller is authorized to use
Buyer's logo and trademark only to the extent necessary to meet the
required specifications for the Product. No other rights with respect to
Buyer's trademarks, trade names or brand names are conferred, either
expressly or by implication, upon Seller.
17.0 COUNTRY OF ORIGIN, DUTY DRAWBACK
-------------------------------------------------------------------------
"Country of Origin" Marking: The Seller shall mark, in English, all
Product or Spares with the Country of Origin (manufacture),in compliance
with Section 304 of the United States Tariff Act. Both the Product and
Spares and its container
-------------------------------------------------------------------------
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
-------------------------------------------------------------------------
must be conspicuously marked with the Country of Origin. If the Product
or Spares itself cannot be marked legibly due to size, then its immediate
container must be marked. signed certificate stating Country of Origin
(manufacture) by quantity and part number (Buyer's and Seller's).
-------------------------------------------------------------------------
18.0 GENERAL
18.1 ***
18.2 If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, such provision shall be enforced to
the fullest extent permitted by applicable law and the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
18.3 Any waiver of any kind by a party of a breach of this Agreement must be
in writing, shall be effective only to the extent set forth in such
writing and shall not operate or be construed as a waiver of any
subsequent breach. Any delay or omission in exercising any right, power
or remedy pursuant to a breach or Default by a party shall not impair any
right, power or remedy which either party may have with respect to a
future breach or Default.
18.4 Buyer or the direct product of such technical data to any person or
destination when such export, re-export or disclosure is prohibited by
the laws of the United States or regulations of a Department of the
United States Seller shall not export, re-export or otherwise disclose,
directly or indirectly, technical data received from Buyer.
18.5 With respect to any payment, reimbursement or other amount owed by Seller
to Buyer under this Agreement, Buyer may offset any such amount owed
against any amount then owing or to be owing (including amounts to be
owed under future invoices) by Buyer to Seller under this Agreement or
any other agreement.
18.6. This Agreement is hereby identified as "Compaq Confidential", and any
additional confidentiality requirements between the parties (now or in
the future) applicable to material identified as such shall apply to this
Agreement.
18.7 Except to the extent that (i) the confidentiality provisions set forth in
Section 15.0 conflict with confidentiality provisions set forth in any
other confidentiality or non-disclosure agreement between the parties
hereto, (ii) the Effective Price and Part Numbers as indentified in a
Pricing Schedule is updated from time to time by mutual agreement of the
parties, this Agreement represents the entire agreement with respect to
the subject matter hereof and supersedes all prior discussions and
agreements between the parties relating to the subject matter hereof.
This Agreement can be modified only by a written amendment duly signed by
persons authorized to sign agreements on behalf of both parties, and
shall not be supplemented or modified by any course of dealing or trade
usage. Variance from or addition to the terms and conditions of this
Agreement in any Order, or other written notification from Seller will be
of no effect.
18.8 Seller, including its servants, agents and employees, is an independent
contractor and not an agent or employee of Buyer. Without limiting the
generality of the foregoing, Seller is not authorized to represent or
make any commitments of behalf of Buyer, and Buyer expressly disclaims
any liability therefore.
18.9 THE CONSTRUCTION, VALIDITY, AND PERFORMANCE OF THIS AGREEMENT AND ANY
ORDER ISSUED UNDER IT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ***,
USA. THE PARTIES HEREBY WAIVE APPLICATION OF THE U.N. CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
18.10 Neither party shall assign or transfer this Agreement or any rights and
obligations under this Agreement without the prior written consent of the
other party.
18.11 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT WARRANTIES (EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE) OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE ARE HEREBY DISCLAIMED IN THEIR ENTIRETY.
18.12 ***
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
CORPORATE PURCHASING AGREEMENT
SUPPLEMENTAL TERMS FOR PURCHASING
19.0 SCOPE
The following terms and conditions shall apply specifically to the
purchase and service of storage automation products ("Deliverables") from
Seller. In the case of a conflict between the General Terms and the
Supplemental Terms, the latter shall control for matters relating to the
Deliverables identified herein.
20.0 SUPPLEMENTAL DEFINITIONS
20.1 "Default" means, with respect to Buyer, (i) Buyer's failure to comply
with any material provision of this Agreement or any Order issued
hereunder ("breach"), and, in the case of a breach which is capable of
remedy, such failure continues unremedied for a period of *** of
notification of said breach; provided, delays in delivery are not subject
to the 30-day cure period herein; or (ii) Buyer becomes insolvent,
becomes subject to any bankruptcy proceeding, makes an assignment for the
benefit of creditors, or a receiver or similar officer is appointed to
take charge of all or a part of such party's assets and such condition is
not cured within ***; and
With respect to Seller, (i) Seller's failure to comply with any material
provision of the Agreement, or of any Order issued hereunder, and in the
case of a breach which is capable of remedy, Seller's failure to remedy
same within *** of notification of said breach; ***; (ii) Seller becomes
insolvent, becomes subject to any bankruptcy proceeding or makes an
assignment for the benefit of creditors, or a receiver or similar officer
is appointed to take charge of all or a part of Seller's assets and such
condition is not cured within ***.
20.2 "Defective Product" means any Deliverables that do not conform to the
Specifications or that contain any defect in material, workmanship or
design.
20.3 "Epidemic Failure" as defined in the Quality Letter of Agreement, Exhibit
D, attached hereto.
21.0 AVAILABILITY OF PRODUCT/SPARES
***
22.0 CHANGES
***
23.0 DELIVERY
23.1 Seller shall deliver Product(s) and Spares to Buyer on the specified date
("On-dock Date") and to the specified location ("Delivery Site") set
forth in the related Order. *** Seller shall immediately notify Buyer, in
writing, if Seller has knowledge of any event which is reasonably likely
to delay any specified delivery date, place, or plan. On Time Delivery
shall mean ***.
23.2 ***
24.0 PACKING, MARKING, AND SHIPPING INSTRUCTIONS
24.1 Seller shall prepare and pack all Product and Spares in a manner (i) ***
that is consistent with practices customary in the computer component
industry, (ii) necessary to meet a designated carrier's requirements, and
(iii) that conforms with the laws and regulations of any applicable
country (including, but not limited to, the United States of America) and
any applicable subdivision thereof.
24.2 Seller shall mark, or cause to be marked, each shipping container to
adequately show Buyer's Order number, part number, revision level, lot
number, and quantity contained therein. Seller shall include in each
container a packing list showing the Order number.
25.0 PRODUCT FORECASTS
25.1 Buyer shall use reasonable efforts, to provide Seller on a weekly basis,
with Buyer's intended purchases forecasted for a given period. Such
forecasts are for Seller's convenience only, and Seller hereby expressly
acknowledges that such forecasts shall not create any liability
whatsoever for Buyer, including but not limited to an obligation to
purchase Product(s), Services and/or Spares, whether unique or industry
standard material.
25.2 Seller agrees to review such forecasts, provided by Buyer, and advise
Buyer if Seller anticipates
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
Seller's inability to achieve the forecasted volumes. Buyer volume
forecasts will be provided to Seller in accordance with the terms and
conditions in Exhibit C, Flex/Buffer Model. Seller may from time to time
request Buyer to review Buyer's intended purchase forecasts and advise
Seller of any changes.
26.0 INSPECTION AND ACCEPTANCE
26.1. Product(s), Spares, and/or Services purchased or to be purchased pursuant
to this Agreement shall be subject to inspection and testing by Buyer
***. Buyer reserves the right to reject Defective Product.
26.2 If Buyer returns a Defective Product to Seller for correction, credit, or
replacement, Seller shall repair or replace same within *** of receiving
such Defective Product. ***
27.0 OUT OF WARRANTY REPAIRS AND SPARES AVAILABILITY
Seller agrees to refurbish, to a Like New condition, any Product and
Spare no longer covered by the express warranties set forth elsewhere in
this Agreement (an "Out of Warranty Product") at the refurbishment prices
and according to the terms set forth in the Schedule of Spares, Exhibit
B, attached hereto.
28.0 RIGHTS, TITLE, AND INTEREST
28.1 Except as otherwise provided in an Attachment to the Agreement, Buyer
shall retain all rights, title, and interest to any and all Materials
furnished to Seller under this Agreement including, but not limited to,
the Buyer Owned Materials set forth in an Ownership of Materials Exhibit.
***
28.2 Except as otherwise provided in an Attachment to the Agreement, Seller
shall retain all rights, title, and interest to any and all Materials
furnished to Buyer under this Agreement including, but not limited to,
the Seller Owned Materials set forth in an Ownership of Materials
Exhibit. Seller shall have sole ownership of all tools furnished,
created, or used in performance of this Agreement, unless otherwise
provided for in a Tooling Agreement.
29.0 QUALITY
29.1 Seller shall ensure that all Product, Spares and/or Services conform to
the Specifications, drawings, samples, revision levels and other
descriptions designated in the Product Schedule for such Product, Spares,
and/or Service. The Specifications shall include any labeling
requirements imposed by applicable law.
29.2 ***
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A
SCHEDULE OF PRODUCTS AND PRICING
Seller will provide a "Product and Pricing Schedule" to buyer from time to time
which is incorporated by reference. It will include Seller's Product name,
Buyer's part number, quarterly pricing and specified delivery terms. The terms
and conditions of this Agreement shall apply to those Products purchased by
Buyer.
Seller agrees that the pricing is firm for *** and that price will be
renegotiated prior to the end of the firm pricing period. Seller agrees to
provide a non-binding price forecast for the following ***.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT B
SCHEDULE OF SPARES AND PRICING
Seller will provide a "Spares and Pricing Schedule" to Buyer from time to time
which is incorporated by reference. It will include Seller's part number and
description, Buyer's part number, quarterly pricing, warranty period and
specified delivery terms. The terms and conditions of this Agreement shall apply
to all Spares purchased by Buyer.
Seller agrees that the price is firm for *** and that pricing will be
renegotiated prior to the end of the firm pricing period. Seller agrees to
furnish a non-binding price forecast for the following ***.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT C
FLEX / BUFFER MODEL
***
FLEX IS DEFINED AS ABILITY TO ACCEPT INCREMENTAL DEMAND.
BUFFER IS DEFINED AS ABILITY TO PULL-IN EXISTING DEMAND.
BUYER'S FLEX REQUIREMENTS ARE:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------
MAXIMUM USD LIABILITY
FOR DECREASES OF
NUMBER OF CALENDAR DAYS PRIOR TO BUYER'S MAXIMUM % BUYER'S MAXIMUM % COMPAQ UNIQUE PRODUCT
SCHEDULED DEMAND DATE INCREASE DECREASE **
--------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
*** *** *** ***
--------------------------------------------------------------------------------------------------------------
*** *** *** ***
--------------------------------------------------------------------------------------------------------------
*** *** *** ***
--------------------------------------------------------------------------------------------------------------
*** *** *** ***
--------------------------------------------------------------------------------------------------------------
</TABLE>
* ANY WEEKLY INCREMENTAL UPSIDE ABOVE THESE PERCENTAGES WILL BE RESPONDED TO
WITH BEST REASONABLE EFFORTS IN THE AREAS OF NUMBER OF UNITS AND REPLENISHMENT
CYCLE TIME.
If Buyer requests delivery of any or all of the buffer inventory, Seller shall
replenish it within *** for products stored at the HUBS worldwide.
***
BUYER'S BUFFER REQUIREMENTS ARE:
*** of inventory on hand and available to Buyer. Buyer agrees to provide a ***
rolling forecast.
Once a week, Buyer shall furnish Seller with a forecast of the quantity and
delivery dates of Product that Buyer anticipates purchasing under this
Agreement. Such forecast shall be referred to as an 830 report or "Buyer's
Forecast" transmitted via EDI. Buyer's Forecast shall include Buyer's part
number, quantity and forecasted date of consumption. ***
In addition to the weekly EDI transmission Buyer also agrees to chair a monthly
forecast meeting with Seller to review short and long term forecast updates.
"Compaq Unique Product" is defined as those "Hardware Based" Compaq unique
components. Seller shall notify Buyer and mutually agree to a list of those
Compaq unique components.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------------------------------------------
COMPAQ
QUALITY LETTER OF AGREEMENT
EXHIBIT D
--------------------------------------------------------------------------------
***
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
SRA - REV 2.0, DATED: 20-SEP-99
EXHIBIT E
SERVICE REQUIREMENTS ADDENDUM
This Addendum to the Corporate Purchasing Agreement ("Agreement") between Buyer
and Seller ("Addendum") provides additional terms and conditions governing the
procurement of Services and/or Spares designated in "Schedule of Spares" by
Buyer. In the case of conflict between the Agreement and this Addendum, this
Addendum will take precedence. Terms not otherwise defined herein shall have the
corresponding definitions ascribed to them in the Agreement.
A. SPARE PARTS AVAILABILITY
1. Seller shall make available for purchase by Buyer and/or
Buyer's authorized third party, replacement Products in "new"
and/or "like new" condition (collectively designated herein as
"Spares") as set forth in the Schedule of Spares. Spares are
considered either whole units (ex. monitors), assemblies (ex.
printed circuit boards), components (ex. resistors,
capacitors) or as otherwise designated by Buyer. "Like new" is
defined as Spares that have been refurbished to the latest
revision to meet quality/reliability requirements set forth in
the Quality Letter of Agreement Exhibit D, all applicable
specifications (electrical, mechanical, firmware, and
cosmetic), and Engineering documentation. This also includes
the replacement of damaged or missing non-functioning parts
and the replacement of worn functioning parts.
2. Seller and Buyer agree that Spares will be owned and held by
Seller until requested by Buyer. Buyer reserves the right to
purchase Spares on an "as needed" basis. ***
B. PRICING
1. Pricing for Spares is set forth in the Schedule of Spares.
Pricing shall remain fixed for ***. *** prior to the end of
the then current Contract Pricing Period, Buyer and Seller
shall meet to review the pricing of Spares. The Schedule of
Spares will be amended to reflect any adjustment in pricing
the parties mutually agree will apply to the subsequent
Contract Pricing Period.
2. ***
C. QUALITY
1. Seller shall ensure that all Spares and/or Services delivered
hereunder comply with the Quality Letter of Agreement, Exhibit
D, attached hereto.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
D. RIGHTS AND ASSISTANCE TO REPAIR
1. It is mutually agreed between Buyer and Seller that Seller
grants to Buyer the right to repair or have repaired Products
or Spares ***.
2. ***
3. ***
E. PRODUCT WARRANTY SUPPORT REQUIREMENTS
Spares delivered by the Seller in support of Product warranty
obligations set forth in the Agreement shall be subject to the
following additional terms:
1. ***
2. ***
3. *** Replacement Spares will be date coded indicating date of
repair, to include human readable characters, in English, in
plain sight.
4. Seller shall use commercially reasonable efforts to provide
Flow-Through Warranty for Spares that are sold to Buyer from
Seller utilizing 3rd party suppliers. This warranty passed to
Buyer from Seller shall be no less than the warranty provided
by the Seller. Such Spares should be noted as such in the
Schedule of Spares.
5. Buyer may appoint an Authorized Service Agent to administer
the warranty process. Seller will recognize said appointment
and will assist Buyer's Authorized Service Agent, as required
by Buyer, to maintain the warranty process described herein.
6. ***
7. Seller shall notify Buyer within *** if any non-functional
Spare is attributable to end user negligence or abuse, and
therefore not the responsibility of Seller. Upon notification,
Buyer retains the right to audit the Spare, and shall provide
disposition either by return to Buyer or repair at Buyer's
expense within forty-eight (48) hours. Seller shall not be
obligated to provide a credit for return of Spares that have
been obviously subjected to end user negligence or abuse.
F. ADDITIONAL Y2K WARRANTY REQUIREMENTS:
1. In addition to warranties set forth above and elsewhere in the
Agreement, Seller hereby warrants that all Spares shall be Y2K
compliant as defined by the Agreement and that such Spares
will not degrade any customer system, which may be Y2K
compliant.
G. ENGINEERING CHANGES
1. ***
H. ESCALATION AND TECHNICAL SUPPORT
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
1. Seller agrees that during the term of this Addendum, it shall
designate a Seller Representative who shall act as Buyer's
primary contact for any service issues regarding parts
procurement, exchange, repair or quality. ***
2. Seller shall provide technical support to Buyer for duration
of this Addendum including the *** Term of Availability.
Seller will resolve all issues deemed to be Product "bugs",
correct any problems with production, and provide a service
solution to Buyer for its customers. ***
I. DIRECT PROCUREMENT OF SPARES
1. ***
J. SPARES RETURN/SELLBACK
1. ***
K. TERM OF AVAILABILITY
1. Seller grants to Buyer the option to purchase Spares at the
last revision level purchased under this Agreement for a
period of five (5) years ("Term of Availability") ***.
2. ***
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT F
COMPAQ SUPPLIER COMPLIANCE POLICY
COMPAQ COMPUTER CORPORATION IS PROUD OF ITS REPUTATION FOR INTEGRITY AND HONESTY
IN ITS BUSINESS DEALINGS. OUR CORPORATE CULTURE OF FAIRNESS AND QUALITY IS ONE
OF OUR MOST VALUABLE ASSETS. MAINTAINING THIS REPUTATION IS AN ONGOING PROCESS,
AND COMPAQ CONSIDERS IT TO BE ONE OF ITS MOST IMPORTANT JOBS.
IT IS ESSENTIAL THAT THE HIGHEST STANDARDS OF CONDUCT BE OBSERVED BY COMPAQ, AS
WELL AS ITS SUPPLIERS. IN FACT, COMPAQ BELIEVES THAT IT SUPPLIERS MUST OPERATE
AT THE SAME HIGH LEVEL OF INTEGRITY AS COMPAQ. IN THIS REGARD, COMPAQ HAS
ADOPTED A SUPPLIER COMPLIANCE POLICY. AS PART OF THIS POLICY, COMPAQ SUPPLIERS
MUST COMPLY FULLY WITH THE REQUIREMENTS SET FORTH BELOW. THIS POLICY REQUIRES
THAT COMPAQ SUPPLIERS AND THEIR EMPLOYEES EXERCISE THE HIGHEST DEGREE OF HONESTY
AND INTEGRITY IN CONDUCTING THEIR BUSINESS WITH COMPAQ, AS WELL AS OTHER THIRD
PARTIES.
I. ETHICAL STANDARDS Compaq expects its suppliers to avoid conflicts of
interest that create opportunities for abuses and allegations of
commercial bribery.
A. Conflicts of Interest - Suppliers are expected to avoid any action
which may involve, or appears to involve, a conflict of interest with
Compaq.
B. Business Courtesies - Business should be won or lost on the merits
of the products and services being offered by its suppliers. Therefore,
supplier funds or personal funds of its employees should not be used to
provide a business courtesy unless the gift is commemorative,
ceremonial or customary in nature and has an insubstantial value. Under
no circumstances should a kickback or bribe ever be offered to Compaq
or its employees.
II. ENVIRONMENTAL STANDARDS Compaq expects its suppliers to conduct their
business in a manner that provides a safe, healthy and environmentally
friendly workplace and meets or exceeds all applicable environment and
work place legal requirements.
A. Hazardous Materials, Air Emissions & Waste Water Discharges - Compaq
requires that each of its suppliers comply with all applicable
environmental laws and regulations regarding hazardous materials, air
emissions and waste water discharges, including those regarding the
manufacture, transportation, storage, disposal, and release to the
environment of such materials.
B. Health & Safety - Compaq expects its suppliers to maintain their
facilities in a safe and healthy manner and in compliance with all
applicable laws and regulations.
III. EMPLOYMENT STANDARDS Compaq expects its suppliers to foster human
dignity by treating their employees fairly and with respect. Compaq
requires that its suppliers comply with all applicable national, state
and local employment laws.
A. Child Labor - Compaq expect its suppliers to refrain from using
child labor. Workers can be no less than 14 years of age and not
younger than the compulsory age to be in school. Compaq supports the
development of legitimate workplace apprenticeship programs for the
educational benefit of young people.
B. Prison Labor - Compaq expects its suppliers to refrain from
utilizing prison or forced labor within their work forces.
C. Disciplinary Practices - Compaq expects its suppliers to refrain
from using corporal punishment or other forms of mental or physical
coercion with their employees.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
D. Working Hours - Compaq expects its suppliers to comply with all
applicable laws regarding compensation for overtime work performed by
their employees. Additionally, employees should be allowed at least one
day off in seven.
IV. COMPETITIVE STANDARDS Compaq expects its suppliers to compete fairly
and vigorously within the marketplace. Compaq discourages
anti-competitive practices by its suppliers that inhibit the operation
of a free-market economy. Compaq requires that its suppliers comply
with all applicable competition laws.
A. Price fixing - Compaq expects its suppliers to refrain from
collaborating with competitors to fix prices for its goods.
B. Anticompetitive Practices - Compaq will not tolerate anticompetitive
practices by its suppliers, including efforts to allocate markets or
customers among their competitors or to fix bids.
V. CONFIDENTIALITY Compaq requires that its suppliers enforce a policy
that ensures the confidentiality of all proprietary or confidential
information provided by Compaq.
A. Non-disclosure Agreement - Compaq requires that its suppliers comply
with the terms of the Confidentiality and Non-disclosure Agreements
that have been entered into with Compaq
B. Other Confidentiality Obligations - Compaq requires its suppliers to
refrain from making unauthorized disclosures to Compaq of third party
confidential information.
VI. COMPLIANCE WITH GOVERNMENT LAWS AND REGULATIONS Compaq expects its
suppliers to comply with all applicable laws and regulations governing
their business relationships with Compaq. In addition, Compaq requires
that its Suppliers agree to implement and maintain a Small,
Woman-Owned, Minority Business Enterprise (SWMBE) program in accordance
with Federal Acquisition Regulations (FAR) 52.219-0(d)(ll)(iii). Upon
request by Compaq, Suppliers agree to provide Compaq with written
certification of its compliance with the SWMBE Federal Acquisition
Regulations.
COMPAQ IS DEDICATED TO MAINTAINING ITS REPUTATION FOR FAIRNESS AND INTEGRITY. IN
MANY WAYS THE FUTURE SUCCESS OF BOTH COMPAQ AND ITS SUPPLIERS DEPENDS ON OUR
ABILITY TO BUILD ON THESE HIGH STANDARDS.
THE FOREGOING REQUIREMENTS ARE NOT INTENDED TO BE ALL-INCLUSIVE, AND COMPAQ
EXPECTS ITS SUPPLIERS TO EXERCISE ETHICAL JUDGMENT BEYOND STRICT COMPLIANCE WITH
THE LAW, AND TO BE RESPONSIVE TO THE CONCERNS OF THE COMMUNITIES IN WHICH THEY
OPERATE. FAILURE TO COMPLY WITH THE ABOVE REQUIREMENTS MAY RESULT IN REDUCTION
OF BUSINESS WITH COMPAQ, OR IN SOME INSTANCES, TERMINATION OF YOUR RELATIONSHIP
WITH COMPAQ. UNDERSTANDING AND COMPLYING WITH THE ABOVE REQUIREMENTS WILL HELP
TO ENSURE THAT OUR MUTUAL BUSINESS ACTIVITIES ARE CONDUCTED IN THE HIGHEST
ETHICAL AND PROFESSIONAL MANNER.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT G
CORPORATE NON DISCLOSURE AGREEMENT
There is an existing nondisclosure agreement (NDA-87-200) in place and valid
until December 17, 2001. This document is on file with the Business
Development and Transacions Services group in Houston.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
[LOGO]
ELECTRONIC BUSINESS ADDENDUM FOR
PRODUCTION PURCHASES
EXHIBIT H
WHEREAS, the Parties desire to transmit and receive data electronically;
WHEREAS, the Parties desire to ensure that such electronic transmissions are
legally valid and enforceable;
WHEREAS, the Parties desire to amend the General Terms forming part of the
Agreement to include the transmittal and receipt of electronic Data;
WHEREAS, the Parties intend for the provisions of this Addendum to supercede any
silent or inconsistent provisions contained in the Agreement; and
WHEREAS, the Parties intend for any and all provisions of the Agreement not so
amended by this Addendum, shall remain in full force and effect. All capitalized
terms used but not defined herein shall have the same meanings as in the
Agreement.
NOW THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE COVENANTS AND
CONDITIONS SET FORTH HEREIN, THE PARTIES AGREE AS FOLLOWS:
THE PARTIES TO THIS ADDENDUM ARE HEREBY AMENDING THE ABOVE REFERENCED AGREEMENT
BY ADDING THE FOLLOWING NEW PROVISIONS TO THE GENERAL TERMS FOR THE PARTIES TO
BE BOUND BY ELECTRONIC DATA EXCHANGES: The Parties to this Addendum hereby
evidence their intention to be bound by the Electronic Exchanges as herein
described and specifically agree as follows:
(A) Each Party may electronically transmit to or receive from the other Party
through any means of Electronic Commerce including, but not limited to,
Electronic Data Interchange (EDI), Facsimile, Electronic Mail, the
Internet, and World Wide Web, certain Products and Services or such other
purchases as the Parties agree to in writing from time to time. Any
transmission of data that does not conform to the applicable "COMPAQ
eGuideline Requirements," which is attached hereto as Exhibit A and
incorporated for all legal purposes, for the type of Electronic
Interchange(s) between the Parties, is /are not an Electronic
Interchange(s) and shall have no force or effect between the Parties.
(B) Each Party shall adopt and identify an electronic identification number or
code ("User ID") as its signature and shall use such signature in each
Electronic Interchange with the other Party. The Parties agree that a User
ID, when affixed to or contained in an Electronic Interchange, shall be
legally sufficient to verify the identity of the transmitting Party and to
authenticate the Electronic Interchange.
(C) Electronic Interchanges shall not be deemed to have been properly received,
and no Electronic Interchange shall give rise to any obligation, until
accessible to the receiving Party. Upon proper receipt of any Electronic
Interchange, the receiving Party shall promptly transmit a functional
acknowledgment or alternate acknowledging Electronic Interchange on a daily
basis as agreed to by the Parties, which shall constitute conclusive
evidence that a Electronic Interchange has been properly received.
(D) No Electronic Interchange shall give rise to any obligation unless and
until the Party initially transmitting such Electronic Interchange has
received an Electronic Interchange response from the other Party.
<PAGE>
(E) Each Party shall establish reasonable controls to ensure the timely
handling of all data transmissions and shall contact promptly the sending
Party for corrective action in the event of a transmission error, such as
an unintelligible or garbled transmission, or in the event electronic
transmission operations are lost.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
2. VALIDITY AND ENFORCEABILITY. (a) This Agreement has been executed by the
Parties to evidence their mutual intent to create binding obligations
pursuant to the Electronic Interchange specifying certain of the applicable
terms. Any Electronic Interchange properly transmitted pursuant to this
Agreement shall be considered a "writing" or "in writing" and any such
Electronic Interchange that contains or has a User ID affixed to it
("Signed Electronic Interchanges") shall be deemed for all purposes (i) to
have been "signed" and (ii) to constitute an "original" when printed from
electronic files or records established and maintained in the normal course
of business.
(b) The Parties agree not to contest the validity or enforceability of
Signed Electronic Interchanges under the provisions of any applicable law
relating to whether certain agreements are to be in writing or signed by
the Party to be bound thereby. Signed Electronic Interchanges shall be
admissible if introduced as evidence on paper in any judicial, arbitration,
mediation, or administrative proceeding to the same extent and under the
same conditions as other business records originated and maintained in
documentary form. Each Party agrees that it will not contest the
admissibility of copies of Signed Electronic Interchanges under either the
business records exception to the hearsay rule or the best evidence rule on
the basis that such Signed Electronic interchanges were not originated or
maintained in documentary form.
3. THIRD PARTY SERVICE PROVIDERS. (a) The Parties may transmit Electronic
Interchanges either directly or through third party service providers or
networks. Each Party shall be responsible for the costs of any third party
service provider with which it contracts and any other costs it incurs in
the electronic transmission or receipt of Electronic Interchanges under
this Addendum.
(b) Either Party may modify its election to use, not use, or change a third
party service provider upon thirty (30) days prior written notice to the
other Party.
4. OBLIGATION TO MAINTAIN RECORDS. Neither Party has an obligation to maintain
the storage of data records or other files for the other Party.
5. GENERAL TERMS AND CONDITIONS FOR PURCHASES AND SALES. This Addendum does
not express or imply any commitment to purchase or sell goods or services.
Where the Parties mutually agree to engage in such transactions using
Electronic Commerce, the general terms and conditions for such transactions
shall be those contained in the applicable purchase contract.
6. SECURITY PROCEDURES AND CONFIDENTIALITY OF USER IDS. (a) Each Party shall
adopt and use security procedures that are reasonably sufficient to ensure
that all transmissions of Electronic Interchanges are authorized and to
protect its business records and data from improper access.
(b) The Parties agree that User IDs are confidential and shall not disclose
the other Party's User ID to any unauthorized parties.
7. TERM AND TERMINATION. This Addendum shall remain in effect until terminated
by either Party with not less than *** prior written notice; PROVIDED,
HOWEVER, that any termination shall not affect the respective obligations
or rights of the Parties arising under any Electronic Interchanges or
otherwise under this Addendum prior to the effective date of termination.
8. LIMITATION OF DAMAGES. Neither Party shall be liable to the other for any
special, incidental, exemplary, or consequential damages arising from or as
a result of any delay, omission, or error in the electronic transmission or
receipt of any Electronic Interchanges pursuant to this Addendum, even if
the other Party has been advised of the possibility of such damages.
9. CONTINGENCIES BEYOND A PARTY'S CONTROL. Neither Party shall be liable for
any failure to fulfill its obligations under this Addendum if such failure
is caused by the occurrence of any contingency beyond its reasonable
control, including but not limited to any mechanical, electronic, or
communications failure, that prevents it from transmitting or receiving any
Electronic Interchanges.
<PAGE>
10. EXPIRATION OF CLAIMS. No action, regardless of form, arising out of this
Addendum may be brought by either Party more than *** after the cause of
action has arisen.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
11. GOVERNING LAW. This Addendum is governed under and in accordance with the
laws of the State of ***, U.S.A., and all obligations of the Parties
created in this Addendum are performable in ***.
12. NON-ASSIGNABILITY. This Addendum shall not be assigned or transferred by
either Party without the prior written consent of the other Party.
13. ENTIRE AGREEMENT. The entire understanding between the Parties is
incorporated herein and supersedes all prior discussions and agreements
between the Parties relating to the subject matter hereto. This Addendum
can be modified only by written amendment executed by the Parties, and
shall not be supplemented or modified by any course of dealing or trade
usage.
14. TITLES AND CAPTIONS. All titles or captions in this Addendum are for
convenience only. They shall not be deemed part of this Addendum and in no
way define, limit, extend, or describe the scope or intent of its
provisions.
15. INVALIDITY OF PROVISIONS. If any provision or provisions of this Addendum
is held by a court of competent jurisdiction to be invalid, illegal, or
unenforceable, the remainder of the provisions of this agreement shall
remain in full force and effect and shall in no way be affected, impaired,
or invalidated.
16. ADDRESSES AND NOTICES. Written notices required or permitted hereunder,
shall be deemed given and received when properly posted by registered or
certified mail, postage prepaid, first class, in an envelope properly
addressed to the person(s) identified by the Agreement. Each Party may
change the address at which notice at which notice may be sent to that
Party b y giving notice of such change to the other Party in accordance
with the notice provision of the Agreement.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.16
CORPORATE PURCHASE AGREEMENT
BETWEEN:
BUYER:
Name: COMPAQ COMPUTER CORPORATION AND ITS AFFILIATES
Address: P.O. BOX 692000 20555 S.H. 249 HOUSTON, TX 77269-2000
Contact Name: DIVISION COUNSEL - OPERATIONS Telephone Number:______________
AND:
SELLER:
Name: OVERLAND DATA INC.
Address: 8975 BALBOA AVENUE SAN DIEGO, CA
Contact Name: FRANK KIRCHHOFF Telephone Number: 619-571-5555
FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE
HEREBY ACKNOWLEDGED, BUYER AND SELLER HEREBY AGREE AS FOLLOWS:
SELLER AGREES TO PROVIDE BUYER with the Products, Services, Spares and/or other
materials specifically identified in properly executed Schedules of Products and
Spares at the applicable Effective Prices and in accordance with the terms and
conditions of this Corporate Purchasing Agreement (the "Agreement") between the
parties, which Agreement consists of (i) this signature page; (ii) the General
Terms for Purchasing, including any amendments thereto; (iii) any Supplemental
Terms of Agreement; and (iv) all Attachments/Exhibits.
PRODUCTS & SERVICES: The Products purchased under the Agreement shall be more
fully described in a Schedule of Products (containing Product part numbers,
descriptions, initial unit prices, and lead-times) as updated from time to time
in the most currently executed Pricing Schedule. The Spares purchased under the
Agreement shall be more fully described in a Schedule of Spares. The Services
acquired under this Agreement shall be more fully described in a Schedule of
Service Deliverables. Any other materials acquired under this Agreement shall be
more fully described in a Schedule of Other Deliverables. Whereas the parties
may agree to purchase other products, spares, and/or services, additional
Schedules of Deliverables may be added from time to time during the term of the
Agreement.
PRICES / CHARGES: The prices, fees, charges, and discounts ("Prices") for
Deliverables shall be initially set forth in a Schedule of Products and Spares.
Whereas the parties may agree, from time to time, to update Prices for any
Deliverable, such updated Prices shall be set forth in properly executed Pricing
Schedules and shall be the price at which Buyer is entitled to purchase such
Deliverables from Seller ("Effective Price") for the period of time specified
therein ("Pricing Period"). The Effective Price for any Deliverable, shall be
that which is contained in the most recently executed Pricing Schedule or, if
none exists, in the applicable Schedule of Deliverables.
AGREEMENT TERM: EFFECTIVE DATE: 6/7/2000 END DATE (OF INITIAL TERM): 6/7/2003
-------- --------
Notwithstanding anything to the contrary, the Agreement is not a requirements
contract and does not obligate Buyer to purchase any minimum quantity of
Deliverables but only establishes the terms and conditions for such purchases if
and when Buyer submits Orders in accordance with the Agreement. Capitalized
terms used on this signature page that are defined elsewhere in the Agreement
and shall have the meaning as there defined.
IN WITNESS WHEREOF, THE AUTHORIZED REPRESENTATIVES OF THE PARTIES HAVE EXECUTED
THIS AGREEMENT WHICH SHALL BECOME EFFECTIVE AS OF THE EFFECTIVE DATE WRITTEN
ABOVE.
SELLER: OVERLAND DATA, INC. BUYER: COMPAQ COMPUTER CORPORATION
By: /s/ Frank R. Kirchoff By: /s/ Richard Gentilini
------------------------------ -----------------------------
(Authorized Signature) (Authorized Signature)
Name: Frank R. Kirchhoff Name: Richard Gentilini
------------------------------ -----------------------------
(Typed or Printed) (Typed or Printed)
Title: Vice President of Sales Title: Director of Procurement
------------------------------ -----------------------------
(Typed or Printed) (Typed or Printed)
Division: Overland Data Division: Storage Products
------------------------------ -----------------------------
(Optional) (If Corporate, Identify Commodity
Area - If Site, Identify Location)
Date: June 7th, 2000 Date: 6-14-00
------------------------------ -----------------------------
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
CORPORATE PURCHASING AGREEMENT
GENERAL TERMS
The following general terms and conditions ("General Terms") and any amendments
hereto form part of the Corporate Purchase Agreement (the "Agreement") between
Buyer and Seller (collectively, the "parties") as identified on the signature
page of the Agreement. Subject to the provisions of these General Terms, Buyer
may elect to purchase goods, materials and/or services (individually or
collectively referrerd to as "Deliverables") from Seller. The Effective Date and
the End Date of the Agreement together with the contact persons of the parties
and their respective addresses for notice, are also identified on the signature
page of the Agreement.
1.0 PURPOSE
It is intended by the parties that the provisions of the Agreement,
including these General Terms, shall govern any purchase and sale of the
Deliverables including, as applicable, the Products, Spares, Services, or
other materials set forth in a Schedule of Deliverables forming part of
the Agreement.
2.0 DEFINITIONS
In addition to terms defined elsewhere in the Agreement, capitalized
terms used herein shall have the meanings set forth below:
2.1 "Affiliate" means, with respect to Buyer or Seller, (i) any other legal
entity controlling, controlled by, or under the common control with
Buyer, (ii) any OEM subcontractor of Buyer, and (iii) any subcontractor
or contractor of Buyer. As used in this definition, the term "control"
means the possession, directly or indirectly or the power to direct, or
cause the direction of the management and policy of the controlled
entity.
2.2 "Attachments" means any document or exhibit thereof that is mutually
agreed to by the parties and is used to provide additional information
and/or different terms and conditions relating to the Agreement.
Attachments may include, but is not limited to schedules, amendments,
addenda, and any other document that is mutually agreed upon by the
parties and incorporates by reference the General Terms for Purchasing.
2.3 "Business Day" means any day other than a Saturday, a Sunday, or holidays
on which banks in the State of *** are generally closed.
2.4 "Buyer Furnished Items" means any raw materials, components, tools,
products, equipment, documentation, services, and/or any other items to
be provided by Buyer to Seller including, but not limited to any
Buyer-Owned Materials identified in any applicable Owned Materials
Attachment, Order, or in any other Attachment forming part of the
Agreement.
2.5 "Buyer Products" means those Products manufactured, marketed, distributed
and/or otherwise made available by Buyer to Buyer's customers, which may
include hardware and software proprietary to Buyer and/or Buyer's
suppliers, including, without limitation, the Products acquired from
Seller under this Agreement.
2.6 "Change Order" means any written document or any written or electronic
Orders prepared, properly authorized, and issued by Buyer and accepted by
Seller, to identify changes to an existing Order previously accepted by
Seller for Deliverables,. A Change Order will typically contain the
Applicable Purchase Order number or electronic Order number affected, a
Change Order number, and a Change Order date signifying the effective
date of the change(s). The Change Order may include changes that affect,
but are not necessarily limited to (i) rescheduling item(s) Delivery
Date(s), (ii) adding and/or canceling item(s) in whole or in part, and/or
(iii) changes to Buyer designated destination point(s).
2.7 "Code" means computer programming instructions including, without
limitation, machine-readable computer programming instructions. Unless
specifically stated otherwise, "Code" shall include all Updates and
Enhancements thereto.
2.8 "Confidential Information" means tangible and intangible nonpublic
information that one party discloses to the other and designates as
confidential or which, under the circumstances surrounding such
disclosure, ought to be treated as confidential. "Confidential
Information" includes, but is not limited to, any and all of the parties'
product information relating to design, functionality, pricing,
manufacturing, or marketing; the terms and conditions of any proposed or
actual agreement between the parties; either party's business policies,
practices or trade secrets; and the information of others that is
received by either party under an obligation of confidentiality.
2.9 "Deliverables" means any goods, services, products, or other materials to
be provided by Seller in accordance with the Agreement and/or any
applicable Orders issued hereunder including, but not limited to,
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
those set forrth in any applicable Services Requirements Addendum;
Schedule of Products, Schedule of Services, Schedule of Spares, Schedule
of Other Deliverables; or contained in any other Attachment to the
Agreement and/or in any applicable Orders issued hereunder.
2.10 "Delivery Date" or "On-Dock Date" means; (i) the date stipulated on
Buyer's Order for the delivery of the specified Deliverables during
normal business hours and days to the Delivery Site designated by Buyer;
and (ii) the date stipulated on Buyer's Order for the performance of
Services to be completed by Seller as specified under Buyer's Order.
2.11 "Enhancements" means changes or additions, other than Updates, to Code
and related documentation, including all new releases, that improve
functions, add new functions, or improve performance by changes in
system, design, or coding.
2.12 "Electronic Transmission" the transmission of data between Buyer and
Seller in an electronic format including, but not limited to,
industry-standard Electronic Data Interchange techniques ("EDI");
Electronic Funds Transfer ("EFT"); Facsimile ("fax"); Electronic Mail
(email), World Wide Web ("WWW"); and Electronic File Exchanges of any
transaction set ("Electronic Interchanges"). Common Electronic
Transmissions are electronic orders, credit card purchases or orders, and
orders via the internet.
2.13 "Hazardous Materials" means any hazardous substance, hazardous waste,
hazardous chemical, hazardous air pollutant, pesticide, or other
substance identified as hazardous, infectious, radioactive or toxic under
any federal, state or local laws, regulations, or standards pertaining to
the protection of human health or safety, wildlife or the environment.
Hazardous Materials shall include, without limitation, all substances
identified as hazardous chemicals by California Occupational Safety and
Health Act (hereinafter referred to as Cal-OSHA) and under the federal
Occupational Safety and Health Act (hereinafter referred to as OSHA) and
all substances identified as hazardous wastes under the Resource
Conservation and Recovery Act or any comparable state statutes,
regulations or standards.
2.14 "Latent Defect" means a recurring failure of a Product Spare, or Material
to perform in accordance with the Specifications, the type of which
failure could not have been readily detected or anticipated by Seller
and/or Buyer, or Buyer's customer during normal inspection or use
thereof.
2.15 "Lead-Time" means the period of time extending from the date listed on
Order to the Delivery Date for Products, Spares and/or Services, DDP. The
Lead-Times for the Products shall be set forth in the Schedule of
Products, or in any applicable Orders, or as otherwise mutually agreed
upon in any subsequent Pricing Schedule.
2.16 "Like New Condition" means refurbished to the latest revision to meet all
applicable electrical, mechanical, firmware and cosmetic specifications
and Engineering documentation, including the replacement of damaged or
missing non-functioning parts.
2.17 "Materials" means (i) computer hardware, (ii) any written information,
Code, or documentation, including any machine-readable information, Code,
or documentation recorded on tangible media, or (iii) any combination
thereof provided, pursuant to the Agreement, to a party for the sole
purpose of enabling performance of the obligations contained herein.
"Materials" does not include Products, or Spares, or Services, or
intangible Confidential Information.
2.18 "Order(s)" means, collectively, any written Purchase Order, any credit
card purchase or order, any electronic order or electronic purchase order
employing EDI techniques, any industry standard EDI order, any telex or
facsimile order or purchase order, any telephonic order or purchase order
subsequently confirmed by Buyer in writing or by some electronic means
capable of printing a hard copy, any other written or electronic order,
and any internet orders employing the Internet and industry standard
Ecommerce techniques or EDI techniques; that are prepared, properly
authorized and issued by Buyer for the purchase of Products or Services.
"Orders" may be accepted by Seller in writing, electronically in the
manner prescribed in subsection 3.3 below, or in the manner otherwise
prescribed by Buyer (including, as applicable, by EDI means, industry
standard Ecommerce techniques, or by facsimile transmission), or by
commencement of performance of Services or by delivery of Products.
2.19 "Pricing Schedule" means, with respect to the purchase of Products, any
written instrument executed by one party and mutually agreed to by the
other party for purpose of (i) updating the part numbers for the Products
identified therein and (ii) updating the Effective Price at which Buyer
may purchase the Products during a stated Pricing. Any purchase by Buyer
of the Products listed in a properly executed Pricing Schedule shall be
goverend by the
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
terms and conditions of the Agreement, unless otherwise stated therein.
To be valid, a Pricing Schedule shall contain, at minimum, a current
Pricing Period, the part numbers and unit prices for the Product(s), the
written consent of both parties.
2.20 "Proprietary Rights" means all current and future patents, mask works,
copyrights, trade secrets, know-how and all other intellectual property
rights, including all applications, continuations and registrations with
respect thereto.
2.21 "Purchase Order" means a written document prepared by Buyer and accepted
by Seller to identify Products, Spares and/or Services to be furnished by
Seller pursuant to the terms and conditions of the Agreement. Such
Purchase Order will typically contain: (i) Purchase Order Number, (ii)
Purchase Order date, (iii) Purchase Order Item No. for each item ordered,
(iv) quantity of each Product, Spare or Service ordered, (v) Buyer and/or
Seller part number, (vi) revision designator for each Product/Spare,
(vii) unit price of each item, (viii) Delivery Date of each item, and
(ix) Buyer's designated destination point for each item.
2.22 "Product(s)" means goods, materials, components, or products that are
either created, manufactured, distributed, or otherwise made available by
Seller to Buyer for purchase by Buyer pursuant to the terms and
conditions of the Agreement and any applicable Order hereto. The Products
shall include any requisite and incidental materials, packaging,
documentation, Code, Software, and any other reasonably related Seller
Furnished Items that are needful due to the nature of the Product. The
Products are idendified in attached Schedules of Deliverables Part
numbers contained in any Schedule of Products may be updated from
time-to-time in mutually agreed upon Pricing Schedules. The updated
part-number for any given Product is located in the most recently
executed Pricing Schedule.
2.23 "RMA" means a Return Material Authorization number assigned by Seller for
a shipment of Products and/or Spares being returned by Buyer to Seller.
2.24 "Schedule of Products" means any written instrument executed by the
parties for the purpose of specifically identifying Product(s) the
parties intend to be covered by the Agreement. A Schedule of Products
shall contain, at minimum, the part numbers, descriptions, unit prices,
and Lead-Times for such Product(s).
2.25 "Schedule of Spares" means any written instrument executed by the parties
for the purpose of specifically identifying Spare(s) the parties intend
to be covered by the Agreement. A Schedule of Spares shall, at minimum,
contain the part numbers, descriptions, and unit prices, for such
Spare(s).
2.26 "Seller Furnished Items" means any raw materials, components, tools,
products, equipment, documentation, services, technical support, and/or
any other items that may be provided by Seller to Buyer including, but
not limited to any Seller-Owned Materials identified in any applicable
Owned Materials Attachment, Order, or in any other document forming part
of the Agreement.
2.27 "Services" or "Seller's Services" means the services or work made
available to Buyer by Seller and which are described, identified, or
listed in any attached or subsequently executed Services Requirements
Addendum that specifically references the Agreement, or in any other
applicable Exhibit, Addendum, Schedule or Attachment forming part of the
Agreement or forming part of any applicable Orders thereunder.
2.28 "Software" means (i) the software which is a component of, supplied with,
or bundled with, the Products, Spares or Services (whether in firmware or
on magnetic, optical or other media) and (ii) the end user documentation
for such software, including all Updates and Enhancements to such
software and documentation.
2.29 "Spare(s)" means any replacement parts/components, assemblies, or
sub-assemblies for the Product(s). Such spare parts shall include,
without limitation; the items described in any Schedule of Spares that
forms part of this Agreement.
2.30 "Specifications" means any instructions relating to the Seller's Services
or the manufacture of Products or Spares, including (i) the
specifications for the specific Product, Spares, and/or Services set
forth in a Specifications document; (ii) the specifications with regard
to the specific Product, Spares and/or Services generally published by
Seller; (iii) the General Quality Requirements set forth under a Quality
Assurance Addendum, and (iv) the Product Agency And Regulatory Compliance
Requirements set forth under an Agency and Regulatory Requirements
document. Specifications also include, but are not limited to, physical
or operational performance parameters, characterization and/or attributes
of the Products and Spares as identified elsewhere in the Agreement or in
any applicable Order(s).
2.31 "Updates" means any modifications or changes, other than Enhancements, to
Materials, Products, or Spares
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
for purposes of correcting Errors, such as bug fixes or other incidental
corrections.
3.0 ORDERS
3.1 Buyer may purchase Product(s), Spares and/or Services from Seller by
issuing properly authorized Orders to Seller. All such Orders shall set
forth the following items: quantity, price, delivery date, part number,
and revision level.
3.2 Seller shall accept any Order that materially conforms with the terms of
this Agreement. Seller shall use commercially reasonable efforts to send
Buyer written confirmation of such acceptance within *** after Seller's
receipt of a written Order from Buyer.
3.3 If Buyer issues an electronic Order, Seller shall electronically "Verify"
receipt of the electronic Order within *** of the electronic Order
transmission by Buyer. "Verify" or "Verfication," as used herein, shall
mean that Seller has, in fact, successfully received all necessary Order
information and requirements (e.g. quantity, price, delivery date, part
number, and revision level) from electronic mailbox and shall serve as
Seller's notification to Buyer of both the receipt of the electronic
Order from Buyer and the occurrence of any discrepancies relating to the
readiablity of such electronic Order. Seller shall return an electronic
Order acknowledgement ("EDI Acknowledgement") to Buyer within ***
following Seller's receipt of said Verfication. ***
3.4 All electronic Orders, Verifications, and EDI Acknowledgments
(collectively "EDI Transmissions") and other related data electronically
transmitted shall;
(1) specifically reference and be suject to the terms and conditions
of this Agreement, and
(2) be specially formatted in accordance with Buyer's policies,
specifications and procedures regarding electronic data
interchange information.
3.5 No oral, electronic, or written additional or different provisions
proposed by Seller in any acceptance, confirmation, or acknowledgment
shall apply unless expressly agreed to, in writing, by Buyer. Buyer
hereby gives notice of its objection to any additional or different terms
proposed by Seller.
3.6 ***
3.7 The parties agree that: (i) the provision of the Uniform Commercial Code
Section 2-201 (Statute of Frauds) shall not apply to these Electronic
Interchanges; (ii) these Electronic Interchanges shall be deemed to
satisfy any legal formalities requiring that agreements be in writing;
and (iii) computer maintained records when produced in hard copy form
shall constitute business records and shall be admissible, as such, to
the same extent as other generally recognized business records.
3.8 ***
3.9 No oral, written, or electronic data transmission by Seller in any credit
card acceptance, confirmation, verification, or acknowledgment, that
proposes additional or different provisions, shall apply unless expressly
agreed to in writing by Buyer. Buyer hereby gives notice of its objection
to any additional or different terms.
3.10 The terms governing the delivery of all Product(s), Spares, and/or,
Services ordered by Buyer will be interpreted in accordance with the
International Chamber of Commerce Incoterms 1990 Edition. ***
4.0 PRICING
4.1 The prices for Product(s), Spares and/or Services ("Prices") shall be
established from time to time by the parties executing and delivering a
Schedule of Products and/or a Schedule of Spares. The Prices set forth in
any such Schedule of Products or Schedule of Spares shall be fixed for
the period set forth therein. The Parties agree that Prices may be
updated from time to time, by mutual agreement of the parties. Such
updated pricing shall be contained in properly executed Pricing
Schedules.
4.2. ***
4.3. ***
4.4 ***
4.5 ***
5.0 WARRANTY
***
6.0 INDEMNIFICATION AND REMEDIES
6.1 ***
6.2 ***
6.3 ***
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
6.4 Subject to Subsection 6.5, upon the occurrence of a Default by a party
hereto the other party shall be entitled to exercise such rights and
remedies as are available at law or in equity including the right to seek
specific performance upon Seller's failure to deliver on a timely basis
unique products in conformity with the Specifications.
6.5 NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, LOST PROFITS AND UNLIQUIDATED INVENTORY), INDIRECT,
SPECIAL OR PUNITIVE DAMAGES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES EXCEPT (I) IN CONNECTION WITH A BREACH OF
THE CONFIDENTIALITY PROVISIONS SET FORTH IN THIS AGREEMENT ***
7.0 PAYMENT
7.1 Buyer shall make payment in full for the purchase price of all Product,
Spares, and/or Services ordered by Buyer hereunder (other than items
disputed by Buyer in good faith) and received by Buyer on or before the
*** after the date of Seller's invoice; provided, Seller's invoice shall
not be dated earlier than the shipment date of Product covered thereby.
***
7.2 Unless otherwise specified in an Exhibit or otherwise agreed to in
writing by the parties, payment shall be made in U.S. dollars.
8.0 TERM
The term of this Agreement shall be ***, ("Initial Term") commencing on
the date indicated on the signature page of this Agreement ("Effective
Date") and shall automatically renew at the conclusion of the Initial
Term for successive *** periods unless and until one party notifies the
other, not less than *** prior to the end of the Initial Term or any
subsequent *** term, that it does not intend to renew this Agreement.
This Agreement may terminate prior to the aforementioned stated term
under the circumstances set forth in Section 9.0 Notwithstanding the
foregoing, this Agreement shall remain in full force and effect and shall
be applicable to any Order issued by Buyer to Seller during the term of
this Agreement until all obligations under such Order have been
fulfilled.
9.0 TERMINATION
9.1 Either party (the "Non-Defaulting Party") may terminate this Agreement
and/or any Order issued hereunder at any time by written notice to the
other party (the "Defaulting Party") upon the occurrence of a Default by
the Defaulting Party. *** This Agreement shall terminate on the date of
such notice (the "Termination Date").
9.2 ***
9.3 ***
9.4 ***
10.0 FORCE MAJURE
10.1 Neither party shall be liable for its failure to perform any of its
obligations hereunder during any period in which performance is delayed
by fire, flood, war, embargo, riot or an unforeseeable intervention of
any government authority that causes complete business interruption
("Force Majeure"), provided that the party suffering such delay
immediately notifies the other party of the delay. ***
11.0 NOTICES
Any notice given under this Agreement shall be written or sent by telex
or facsimile. Written notice shall be sent by registered mail or
certified mail, postage prepaid, return receipt requested, or by any
other overnight delivery service which delivers to the noticed
destination, and provides proof of delivery to the sender. Any telex or
facsimile notice must be followed within three (3) days by written
notice. All notices shall be effective when first received at the
addresses set out on the front page of the Agreement or such other
addresses as may be notified to the other party pursuant to this
provision.
12.0 ***
13.0 COMPLIANCE WITH LAWS
13.1 All Product or Spares supplied and work performed under this Agreement
shall comply with all applicable United States and foreign laws and
regulations including, but not limited to, emission and safety standards,
the Occupational Safety and Health Act (29 U.S.C. Sections 651 et seq.),
the Fair Labor Standards Act of 1938 (29 U.S.C. Sections 201-219), the
Toxic Substance Control Act of 1976 (15 U.S.C. Section 2601), all laws
restraining the use of convict labor, and Worker's Compensation Laws. ***
Seller's failure to comply with any of the requirements of this Section
may result in a material breach of this Agreement.
13.2 All Product or Spares supplied and work performed under this Agreement
shall comply with all applicable laws and regulations. Without limiting
the foregoing, Seller shall comply with the Occupational Safety and
Health Act ("OSHA") 29 C.F.R. Sections 1910, 1200(b), and (g)(8); the
Toxic Substance Control Act ("TSCA") 15 U.S.C. Section 2612(a); and laws
restraining the use of convict labor: 18
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
U.S.C. Sections 1761 and 1762. Seller's failure to comply with any of the
requirements of this Section may result in a material breach of this
Agreement.
13.3 The following provisions and clauses of the Federal Acquisition
Regulation (FAR), 48 CFR Chapter 1, are hereby incorporated by reference,
with the same force and effect as if they were given in full text and are
hereby made binding upon the subcontractor or vendor. Where the clauses
or provisions say "Contractor", substitute "subcontractor or vendor."
(1) Nonexempt Subcontracts and Purchase Orders over $2,500: 52.222-36
Affirmative Action for Handicapped Workers (APR 1984)
(2) Nonexempt Subcontracts and Purchase Orders over $10,000 or
subcontracts and Purchase Orders the aggregate value of which in
any twelve month period exceeds or can be expected to exceed
$10,000: 52.222-26 Equal Opportunity (APR 1984).
(3) Nonexempt Subcontracts and Purchase Orders over $10,000: 52.222-21
Certification of Nonsegregated Facilities (APR 1984) 52.222-35
Affirmative Action for Special Disabled and Vietnam Era Veterans
(APR 1984).
(4) Subcontracts and Purchase Orders over the small purchase
limitation, $25,000: 52.219-13 Utilization of Women-Owned Small
Business (AUG 1986).
(5) Subcontracts over $500,000, except for small business concerns:
52.219-8 Utilization of Small Business Concerns and Small
Disadvantaged Business Concerns (FEB 1990).
13.4 The provisions of the Clean Air Act (42 U.S.C. Sections 7401 et seq.) and
the Clean Water Act (33 U.S.C. Sections 1251 et seq.) are made a part of
this Agreement
13.5 The provisions of any applicable State "Right-To-Know" laws and
regulations are made a part of this Agreement. A copy of the applicable
Product or Spares Safety Data Sheets as required under such laws and
regulations shall be provided by Seller upon delivery of Product or
Spares and updated as necessary.
13.6 This Agreement is subject to all applicable United States laws and
regulations relating to exports and to all administrative acts of the
U.S. Government pursuant to such laws and regulations.
13.7 The 1980 United Nations Convention on contracts for the international
sale of goods shall not apply to this Agreement or any Order issued under
this Agreement.
13.8 Seller agrees to comply with the United Stated Federal requirements
contained at Title 40, Code of Federal Regulations Part 82 - "Protection
of Stratospheric Ozone; Labeling". Moreover, Seller shall not supply to
Buyer any product or part that contains or has been manufactured using a
Class 1 ozone depleting substance, as that term is defined in the
Regulations, unless Seller has provided prior written notice to Buyer.
13.9 Seller agrees to comply with all terms and conditions of the Compaq
Supplier Compliance Policy, attached Exhibit F.
14.0 GRATUITIES
Each party represents that it has not offered nor given and will not (i)
offer nor give any employee, agent, or representative of the other party
any gratuity, or (ii) influence such person's normal job responsibilities
in any way with a view toward securing any business from the other party
or influencing such person with respect to the business between the
parties.
15.0 CONFIDENTIAL INFORMATION
15.1 The parties acknowledge that they have entered into a binding
Confidentiality and Nondisclosure Agreement ("NDA") and hereby agree to
abide by the terms of such NDA and any amendment thereto. All provisions
of such NDA are incorporated by reference and shall govern all
disclosures of Confidential Information made under the Agreement.
15.2 The parties acknowledge that the unauthorized disclosure of either
party's confidential information will cause irreparable harm.
Accordingly, the parties agree that the injured party shall have the
right to seek immediate injunctive relief enjoining such unauthorized
disclosure.
16.0 TRADEMARKS AND LOGOS
Subject to Compaq's Brand Standards Policy, Seller is authorized to use
Buyer's logo and trademark only to the extent necessary to meet the
required specifications for the Product. No other rights with respect to
Buyer's trademarks, trade names or brand names are conferred, either
expressly or by implication, upon Seller.
17.0 COUNTRY OF ORIGIN, DUTY DRAWBACK
-------------------------------------------------------------------------
"Country of Origin" Marking: The Seller shall mark, in English, all
Product or Spares with the Country of Origin (manufacture),in compliance
with Section 304 of the United States Tariff Act. Both the Product and
Spares and its container
-------------------------------------------------------------------------
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
-------------------------------------------------------------------------
must be conspicuously marked with the Country of Origin. If the Product
or Spares itself cannot be marked legibly due to size, then its immediate
container must be marked. signed certificate stating Country of Origin
(manufacture) by quantity and part number (Buyer's and Seller's).
-------------------------------------------------------------------------
18.0 GENERAL
18.1 ***
18.2 If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, such provision shall be enforced to
the fullest extent permitted by applicable law and the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
18.3 Any waiver of any kind by a party of a breach of this Agreement must be
in writing, shall be effective only to the extent set forth in such
writing and shall not operate or be construed as a waiver of any
subsequent breach. Any delay or omission in exercising any right, power
or remedy pursuant to a breach or Default by a party shall not impair any
right, power or remedy which either party may have with respect to a
future breach or Default.
18.4 Buyer or the direct product of such technical data to any person or
destination when such export, re-export or disclosure is prohibited by
the laws of the United States or regulations of a Department of the
United States Seller shall not export, re-export or otherwise disclose,
directly or indirectly, technical data received from Buyer.
18.5 With respect to any payment, reimbursement or other amount owed by Seller
to Buyer under this Agreement, Buyer may offset any such amount owed
against any amount then owing or to be owing (including amounts to be
owed under future invoices) by Buyer to Seller under this Agreement or
any other agreement.
18.6. This Agreement is hereby identified as "Compaq Confidential", and any
additional confidentiality requirements between the parties (now or in
the future) applicable to material identified as such shall apply to this
Agreement.
18.7 Except to the extent that (i) the confidentiality provisions set forth in
Section 15.0 conflict with confidentiality provisions set forth in any
other confidentiality or non-disclosure agreement between the parties
hereto, (ii) the Effective Price and Part Numbers as indentified in a
Pricing Schedule is updated from time to time by mutual agreement of the
parties, this Agreement represents the entire agreement with respect to
the subject matter hereof and supersedes all prior discussions and
agreements between the parties relating to the subject matter hereof.
This Agreement can be modified only by a written amendment duly signed by
persons authorized to sign agreements on behalf of both parties, and
shall not be supplemented or modified by any course of dealing or trade
usage. Variance from or addition to the terms and conditions of this
Agreement in any Order, or other written notification from Seller will be
of no effect.
18.8 Seller, including its servants, agents and employees, is an independent
contractor and not an agent or employee of Buyer. Without limiting the
generality of the foregoing, Seller is not authorized to represent or
make any commitments of behalf of Buyer, and Buyer expressly disclaims
any liability therefore.
18.9 THE CONSTRUCTION, VALIDITY, AND PERFORMANCE OF THIS AGREEMENT AND ANY
ORDER ISSUED UNDER IT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ***,
USA. THE PARTIES HEREBY WAIVE APPLICATION OF THE U.N. CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
18.10 Neither party shall assign or transfer this Agreement or any rights and
obligations under this Agreement without the prior written consent of the
other party.
18.11 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT WARRANTIES (EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE) OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE ARE HEREBY DISCLAIMED IN THEIR ENTIRETY.
18.12 ***
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
CORPORATE PURCHASING AGREEMENT
SUPPLEMENTAL TERMS FOR PURCHASING
19.0 SCOPE
The following terms and conditions shall apply specifically to the
purchase and service of storage automation products ("Deliverables") from
Seller. In the case of a conflict between the General Terms and the
Supplemental Terms, the latter shall control for matters relating to the
Deliverables identified herein.
20.0 SUPPLEMENTAL DEFINITIONS
20.1 "Default" means, with respect to Buyer, (i) Buyer's failure to comply
with any material provision of this Agreement or any Order issued
hereunder ("breach"), and, in the case of a breach which is capable of
remedy, such failure continues unremedied for a period of *** of
notification of said breach; provided, delays in delivery are not subject
to the 30-day cure period herein; or (ii) Buyer becomes insolvent,
becomes subject to any bankruptcy proceeding, makes an assignment for the
benefit of creditors, or a receiver or similar officer is appointed to
take charge of all or a part of such party's assets and such condition is
not cured within ***; and
With respect to Seller, (i) Seller's failure to comply with any material
provision of the Agreement, or of any Order issued hereunder, and in the
case of a breach which is capable of remedy, Seller's failure to remedy
same within *** of notification of said breach; ***; (ii) Seller becomes
insolvent, becomes subject to any bankruptcy proceeding or makes an
assignment for the benefit of creditors, or a receiver or similar officer
is appointed to take charge of all or a part of Seller's assets and such
condition is not cured within ***.
20.2 "Defective Product" means any Deliverables that do not conform to the
Specifications or that contain any defect in material, workmanship or
design.
20.3 "Epidemic Failure" as defined in the Quality Letter of Agreement, Exhibit
D, attached hereto.
21.0 AVAILABILITY OF PRODUCT/SPARES
***
22.0 CHANGES
***
23.0 DELIVERY
23.1 Seller shall deliver Product(s) and Spares to Buyer on the specified date
("On-dock Date") and to the specified location ("Delivery Site") set
forth in the related Order. *** Seller shall immediately notify Buyer, in
writing, if Seller has knowledge of any event which is reasonably likely
to delay any specified delivery date, place, or plan. On Time Delivery
shall mean ***.
23.2 ***
24.0 PACKING, MARKING, AND SHIPPING INSTRUCTIONS
24.1 Seller shall prepare and pack all Product and Spares in a manner (i) ***
that is consistent with practices customary in the computer component
industry, (ii) necessary to meet a designated carrier's requirements, and
(iii) that conforms with the laws and regulations of any applicable
country (including, but not limited to, the United States of America) and
any applicable subdivision thereof.
24.2 Seller shall mark, or cause to be marked, each shipping container to
adequately show Buyer's Order number, part number, revision level, lot
number, and quantity contained therein. Seller shall include in each
container a packing list showing the Order number.
25.0 PRODUCT FORECASTS
25.1 Buyer shall use reasonable efforts, to provide Seller on a weekly basis,
with Buyer's intended purchases forecasted for a given period. Such
forecasts are for Seller's convenience only, and Seller hereby expressly
acknowledges that such forecasts shall not create any liability
whatsoever for Buyer, including but not limited to an obligation to
purchase Product(s), Services and/or Spares, whether unique or industry
standard material.
25.2 Seller agrees to review such forecasts, provided by Buyer, and advise
Buyer if Seller anticipates
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
Seller's inability to achieve the forecasted volumes. Buyer volume
forecasts will be provided to Seller in accordance with the terms and
conditions in Exhibit C, Flex/Buffer Model. Seller may from time to time
request Buyer to review Buyer's intended purchase forecasts and advise
Seller of any changes.
26.0 INSPECTION AND ACCEPTANCE
26.1. Product(s), Spares, and/or Services purchased or to be purchased pursuant
to this Agreement shall be subject to inspection and testing by Buyer
***. Buyer reserves the right to reject Defective Product.
26.2 If Buyer returns a Defective Product to Seller for correction, credit, or
replacement, Seller shall repair or replace same within *** of receiving
such Defective Product. ***
27.0 OUT OF WARRANTY REPAIRS AND SPARES AVAILABILITY
Seller agrees to refurbish, to a Like New condition, any Product and
Spare no longer covered by the express warranties set forth elsewhere in
this Agreement (an "Out of Warranty Product") at the refurbishment prices
and according to the terms set forth in the Schedule of Spares, Exhibit
B, attached hereto.
28.0 RIGHTS, TITLE, AND INTEREST
28.1 Except as otherwise provided in an Attachment to the Agreement, Buyer
shall retain all rights, title, and interest to any and all Materials
furnished to Seller under this Agreement including, but not limited to,
the Buyer Owned Materials set forth in an Ownership of Materials Exhibit.
***
28.2 Except as otherwise provided in an Attachment to the Agreement, Seller
shall retain all rights, title, and interest to any and all Materials
furnished to Buyer under this Agreement including, but not limited to,
the Seller Owned Materials set forth in an Ownership of Materials
Exhibit. Seller shall have sole ownership of all tools furnished,
created, or used in performance of this Agreement, unless otherwise
provided for in a Tooling Agreement.
29.0 QUALITY
29.1 Seller shall ensure that all Product, Spares and/or Services conform to
the Specifications, drawings, samples, revision levels and other
descriptions designated in the Product Schedule for such Product, Spares,
and/or Service. The Specifications shall include any labeling
requirements imposed by applicable law.
29.2 ***
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A
SCHEDULE OF PRODUCTS AND PRICING
Seller will provide a "Product and Pricing Schedule" to buyer from time to time
which is incorporated by reference. It will include Seller's Product name,
Buyer's part number, quarterly pricing and specified delivery terms. The terms
and conditions of this Agreement shall apply to those Products purchased by
Buyer.
Seller agrees that the pricing is firm for *** and that price will be
renegotiated prior to the end of the firm pricing period. Seller agrees to
provide a non-binding price forecast for the following ***.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT B
SCHEDULE OF SPARES AND PRICING
Seller will provide a "Spares and Pricing Schedule" to Buyer from time to time
which is incorporated by reference. It will include Seller's part number and
description, Buyer's part number, quarterly pricing, warranty period and
specified delivery terms. The terms and conditions of this Agreement shall apply
to all Spares purchased by Buyer.
Seller agrees that the price is firm for *** and that pricing will be
renegotiated prior to the end of the firm pricing period. Seller agrees to
furnish a non-binding price forecast for the following ***.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT C
FLEX / BUFFER MODEL
***
FLEX IS DEFINED AS ABILITY TO ACCEPT INCREMENTAL DEMAND.
BUFFER IS DEFINED AS ABILITY TO PULL-IN EXISTING DEMAND.
BUYER'S FLEX REQUIREMENTS ARE:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------
MAXIMUM USD LIABILITY
FOR DECREASES OF
NUMBER OF CALENDAR DAYS PRIOR TO BUYER'S MAXIMUM % BUYER'S MAXIMUM % COMPAQ UNIQUE PRODUCT
SCHEDULED DEMAND DATE INCREASE DECREASE **
--------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
*** *** *** ***
--------------------------------------------------------------------------------------------------------------
*** *** *** ***
--------------------------------------------------------------------------------------------------------------
*** *** *** ***
--------------------------------------------------------------------------------------------------------------
*** *** *** ***
--------------------------------------------------------------------------------------------------------------
</TABLE>
* ANY WEEKLY INCREMENTAL UPSIDE ABOVE THESE PERCENTAGES WILL BE RESPONDED TO
WITH BEST REASONABLE EFFORTS IN THE AREAS OF NUMBER OF UNITS AND REPLENISHMENT
CYCLE TIME.
If Buyer requests delivery of any or all of the buffer inventory, Seller shall
replenish it within *** for products stored at the HUBS worldwide.
***
BUYER'S BUFFER REQUIREMENTS ARE:
*** of inventory on hand and available to Buyer. Buyer agrees to provide a ***
rolling forecast.
Once a week, Buyer shall furnish Seller with a forecast of the quantity and
delivery dates of Product that Buyer anticipates purchasing under this
Agreement. Such forecast shall be referred to as an 830 report or "Buyer's
Forecast" transmitted via EDI. Buyer's Forecast shall include Buyer's part
number, quantity and forecasted date of consumption. ***
In addition to the weekly EDI transmission Buyer also agrees to chair a monthly
forecast meeting with Seller to review short and long term forecast updates.
"Compaq Unique Product" is defined as those "Hardware Based" Compaq unique
components. Seller shall notify Buyer and mutually agree to a list of those
Compaq unique components.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------------------------------------------
COMPAQ
QUALITY LETTER OF AGREEMENT
EXHIBIT D
--------------------------------------------------------------------------------
***
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
SRA - REV 2.0, DATED: 20-SEP-99
EXHIBIT E
SERVICE REQUIREMENTS ADDENDUM
This Addendum to the Corporate Purchasing Agreement ("Agreement") between Buyer
and Seller ("Addendum") provides additional terms and conditions governing the
procurement of Services and/or Spares designated in "Schedule of Spares" by
Buyer. In the case of conflict between the Agreement and this Addendum, this
Addendum will take precedence. Terms not otherwise defined herein shall have the
corresponding definitions ascribed to them in the Agreement.
A. SPARE PARTS AVAILABILITY
1. Seller shall make available for purchase by Buyer and/or
Buyer's authorized third party, replacement Products in "new"
and/or "like new" condition (collectively designated herein as
"Spares") as set forth in the Schedule of Spares. Spares are
considered either whole units (ex. monitors), assemblies (ex.
printed circuit boards), components (ex. resistors,
capacitors) or as otherwise designated by Buyer. "Like new" is
defined as Spares that have been refurbished to the latest
revision to meet quality/reliability requirements set forth in
the Quality Letter of Agreement Exhibit D, all applicable
specifications (electrical, mechanical, firmware, and
cosmetic), and Engineering documentation. This also includes
the replacement of damaged or missing non-functioning parts
and the replacement of worn functioning parts.
2. Seller and Buyer agree that Spares will be owned and held by
Seller until requested by Buyer. Buyer reserves the right to
purchase Spares on an "as needed" basis. ***
B. PRICING
1. Pricing for Spares is set forth in the Schedule of Spares.
Pricing shall remain fixed for ***. *** prior to the end of
the then current Contract Pricing Period, Buyer and Seller
shall meet to review the pricing of Spares. The Schedule of
Spares will be amended to reflect any adjustment in pricing
the parties mutually agree will apply to the subsequent
Contract Pricing Period.
2. ***
C. QUALITY
1. Seller shall ensure that all Spares and/or Services delivered
hereunder comply with the Quality Letter of Agreement, Exhibit
D, attached hereto.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
D. RIGHTS AND ASSISTANCE TO REPAIR
1. It is mutually agreed between Buyer and Seller that Seller
grants to Buyer the right to repair or have repaired Products
or Spares ***.
2. ***
3. ***
E. PRODUCT WARRANTY SUPPORT REQUIREMENTS
Spares delivered by the Seller in support of Product warranty
obligations set forth in the Agreement shall be subject to the
following additional terms:
1. ***
2. ***
3. *** Replacement Spares will be date coded indicating date of
repair, to include human readable characters, in English, in
plain sight.
4. Seller shall use commercially reasonable efforts to provide
Flow-Through Warranty for Spares that are sold to Buyer from
Seller utilizing 3rd party suppliers. This warranty passed to
Buyer from Seller shall be no less than the warranty provided
by the Seller. Such Spares should be noted as such in the
Schedule of Spares.
5. Buyer may appoint an Authorized Service Agent to administer
the warranty process. Seller will recognize said appointment
and will assist Buyer's Authorized Service Agent, as required
by Buyer, to maintain the warranty process described herein.
6. ***
7. Seller shall notify Buyer within *** if any non-functional
Spare is attributable to end user negligence or abuse, and
therefore not the responsibility of Seller. Upon notification,
Buyer retains the right to audit the Spare, and shall provide
disposition either by return to Buyer or repair at Buyer's
expense within forty-eight (48) hours. Seller shall not be
obligated to provide a credit for return of Spares that have
been obviously subjected to end user negligence or abuse.
F. ADDITIONAL Y2K WARRANTY REQUIREMENTS:
1. In addition to warranties set forth above and elsewhere in the
Agreement, Seller hereby warrants that all Spares shall be Y2K
compliant as defined by the Agreement and that such Spares
will not degrade any customer system, which may be Y2K
compliant.
G. ENGINEERING CHANGES
1. ***
H. ESCALATION AND TECHNICAL SUPPORT
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
1. Seller agrees that during the term of this Addendum, it shall
designate a Seller Representative who shall act as Buyer's
primary contact for any service issues regarding parts
procurement, exchange, repair or quality. ***
2. Seller shall provide technical support to Buyer for duration
of this Addendum including the *** Term of Availability.
Seller will resolve all issues deemed to be Product "bugs",
correct any problems with production, and provide a service
solution to Buyer for its customers. ***
I. DIRECT PROCUREMENT OF SPARES
1. ***
J. SPARES RETURN/SELLBACK
1. ***
K. TERM OF AVAILABILITY
1. Seller grants to Buyer the option to purchase Spares at the
last revision level purchased under this Agreement for a
period of five (5) years ("Term of Availability") ***.
2. ***
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT F
COMPAQ SUPPLIER COMPLIANCE POLICY
COMPAQ COMPUTER CORPORATION IS PROUD OF ITS REPUTATION FOR INTEGRITY AND HONESTY
IN ITS BUSINESS DEALINGS. OUR CORPORATE CULTURE OF FAIRNESS AND QUALITY IS ONE
OF OUR MOST VALUABLE ASSETS. MAINTAINING THIS REPUTATION IS AN ONGOING PROCESS,
AND COMPAQ CONSIDERS IT TO BE ONE OF ITS MOST IMPORTANT JOBS.
IT IS ESSENTIAL THAT THE HIGHEST STANDARDS OF CONDUCT BE OBSERVED BY COMPAQ, AS
WELL AS ITS SUPPLIERS. IN FACT, COMPAQ BELIEVES THAT IT SUPPLIERS MUST OPERATE
AT THE SAME HIGH LEVEL OF INTEGRITY AS COMPAQ. IN THIS REGARD, COMPAQ HAS
ADOPTED A SUPPLIER COMPLIANCE POLICY. AS PART OF THIS POLICY, COMPAQ SUPPLIERS
MUST COMPLY FULLY WITH THE REQUIREMENTS SET FORTH BELOW. THIS POLICY REQUIRES
THAT COMPAQ SUPPLIERS AND THEIR EMPLOYEES EXERCISE THE HIGHEST DEGREE OF HONESTY
AND INTEGRITY IN CONDUCTING THEIR BUSINESS WITH COMPAQ, AS WELL AS OTHER THIRD
PARTIES.
I. ETHICAL STANDARDS Compaq expects its suppliers to avoid conflicts of
interest that create opportunities for abuses and allegations of
commercial bribery.
A. Conflicts of Interest - Suppliers are expected to avoid any action
which may involve, or appears to involve, a conflict of interest with
Compaq.
B. Business Courtesies - Business should be won or lost on the merits
of the products and services being offered by its suppliers. Therefore,
supplier funds or personal funds of its employees should not be used to
provide a business courtesy unless the gift is commemorative,
ceremonial or customary in nature and has an insubstantial value. Under
no circumstances should a kickback or bribe ever be offered to Compaq
or its employees.
II. ENVIRONMENTAL STANDARDS Compaq expects its suppliers to conduct their
business in a manner that provides a safe, healthy and environmentally
friendly workplace and meets or exceeds all applicable environment and
work place legal requirements.
A. Hazardous Materials, Air Emissions & Waste Water Discharges - Compaq
requires that each of its suppliers comply with all applicable
environmental laws and regulations regarding hazardous materials, air
emissions and waste water discharges, including those regarding the
manufacture, transportation, storage, disposal, and release to the
environment of such materials.
B. Health & Safety - Compaq expects its suppliers to maintain their
facilities in a safe and healthy manner and in compliance with all
applicable laws and regulations.
III. EMPLOYMENT STANDARDS Compaq expects its suppliers to foster human
dignity by treating their employees fairly and with respect. Compaq
requires that its suppliers comply with all applicable national, state
and local employment laws.
A. Child Labor - Compaq expect its suppliers to refrain from using
child labor. Workers can be no less than 14 years of age and not
younger than the compulsory age to be in school. Compaq supports the
development of legitimate workplace apprenticeship programs for the
educational benefit of young people.
B. Prison Labor - Compaq expects its suppliers to refrain from
utilizing prison or forced labor within their work forces.
C. Disciplinary Practices - Compaq expects its suppliers to refrain
from using corporal punishment or other forms of mental or physical
coercion with their employees.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
D. Working Hours - Compaq expects its suppliers to comply with all
applicable laws regarding compensation for overtime work performed by
their employees. Additionally, employees should be allowed at least one
day off in seven.
IV. COMPETITIVE STANDARDS Compaq expects its suppliers to compete fairly
and vigorously within the marketplace. Compaq discourages
anti-competitive practices by its suppliers that inhibit the operation
of a free-market economy. Compaq requires that its suppliers comply
with all applicable competition laws.
A. Price fixing - Compaq expects its suppliers to refrain from
collaborating with competitors to fix prices for its goods.
B. Anticompetitive Practices - Compaq will not tolerate anticompetitive
practices by its suppliers, including efforts to allocate markets or
customers among their competitors or to fix bids.
V. CONFIDENTIALITY Compaq requires that its suppliers enforce a policy
that ensures the confidentiality of all proprietary or confidential
information provided by Compaq.
A. Non-disclosure Agreement - Compaq requires that its suppliers comply
with the terms of the Confidentiality and Non-disclosure Agreements
that have been entered into with Compaq
B. Other Confidentiality Obligations - Compaq requires its suppliers to
refrain from making unauthorized disclosures to Compaq of third party
confidential information.
VI. COMPLIANCE WITH GOVERNMENT LAWS AND REGULATIONS Compaq expects its
suppliers to comply with all applicable laws and regulations governing
their business relationships with Compaq. In addition, Compaq requires
that its Suppliers agree to implement and maintain a Small,
Woman-Owned, Minority Business Enterprise (SWMBE) program in accordance
with Federal Acquisition Regulations (FAR) 52.219-0(d)(ll)(iii). Upon
request by Compaq, Suppliers agree to provide Compaq with written
certification of its compliance with the SWMBE Federal Acquisition
Regulations.
COMPAQ IS DEDICATED TO MAINTAINING ITS REPUTATION FOR FAIRNESS AND INTEGRITY. IN
MANY WAYS THE FUTURE SUCCESS OF BOTH COMPAQ AND ITS SUPPLIERS DEPENDS ON OUR
ABILITY TO BUILD ON THESE HIGH STANDARDS.
THE FOREGOING REQUIREMENTS ARE NOT INTENDED TO BE ALL-INCLUSIVE, AND COMPAQ
EXPECTS ITS SUPPLIERS TO EXERCISE ETHICAL JUDGMENT BEYOND STRICT COMPLIANCE WITH
THE LAW, AND TO BE RESPONSIVE TO THE CONCERNS OF THE COMMUNITIES IN WHICH THEY
OPERATE. FAILURE TO COMPLY WITH THE ABOVE REQUIREMENTS MAY RESULT IN REDUCTION
OF BUSINESS WITH COMPAQ, OR IN SOME INSTANCES, TERMINATION OF YOUR RELATIONSHIP
WITH COMPAQ. UNDERSTANDING AND COMPLYING WITH THE ABOVE REQUIREMENTS WILL HELP
TO ENSURE THAT OUR MUTUAL BUSINESS ACTIVITIES ARE CONDUCTED IN THE HIGHEST
ETHICAL AND PROFESSIONAL MANNER.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT G
CORPORATE NON DISCLOSURE AGREEMENT
There is an existing nondisclosure agreement (NDA-87-200) in place and valid
until December 17, 2001. This document is on file with the Business
Development and Transacions Services group in Houston.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
[LOGO]
ELECTRONIC BUSINESS ADDENDUM FOR
PRODUCTION PURCHASES
EXHIBIT H
WHEREAS, the Parties desire to transmit and receive data electronically;
WHEREAS, the Parties desire to ensure that such electronic transmissions are
legally valid and enforceable;
WHEREAS, the Parties desire to amend the General Terms forming part of the
Agreement to include the transmittal and receipt of electronic Data;
WHEREAS, the Parties intend for the provisions of this Addendum to supercede any
silent or inconsistent provisions contained in the Agreement; and
WHEREAS, the Parties intend for any and all provisions of the Agreement not so
amended by this Addendum, shall remain in full force and effect. All capitalized
terms used but not defined herein shall have the same meanings as in the
Agreement.
NOW THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE COVENANTS AND
CONDITIONS SET FORTH HEREIN, THE PARTIES AGREE AS FOLLOWS:
THE PARTIES TO THIS ADDENDUM ARE HEREBY AMENDING THE ABOVE REFERENCED AGREEMENT
BY ADDING THE FOLLOWING NEW PROVISIONS TO THE GENERAL TERMS FOR THE PARTIES TO
BE BOUND BY ELECTRONIC DATA EXCHANGES: The Parties to this Addendum hereby
evidence their intention to be bound by the Electronic Exchanges as herein
described and specifically agree as follows:
(A) Each Party may electronically transmit to or receive from the other Party
through any means of Electronic Commerce including, but not limited to,
Electronic Data Interchange (EDI), Facsimile, Electronic Mail, the
Internet, and World Wide Web, certain Products and Services or such other
purchases as the Parties agree to in writing from time to time. Any
transmission of data that does not conform to the applicable "COMPAQ
eGuideline Requirements," which is attached hereto as Exhibit A and
incorporated for all legal purposes, for the type of Electronic
Interchange(s) between the Parties, is /are not an Electronic
Interchange(s) and shall have no force or effect between the Parties.
(B) Each Party shall adopt and identify an electronic identification number or
code ("User ID") as its signature and shall use such signature in each
Electronic Interchange with the other Party. The Parties agree that a User
ID, when affixed to or contained in an Electronic Interchange, shall be
legally sufficient to verify the identity of the transmitting Party and to
authenticate the Electronic Interchange.
(C) Electronic Interchanges shall not be deemed to have been properly received,
and no Electronic Interchange shall give rise to any obligation, until
accessible to the receiving Party. Upon proper receipt of any Electronic
Interchange, the receiving Party shall promptly transmit a functional
acknowledgment or alternate acknowledging Electronic Interchange on a daily
basis as agreed to by the Parties, which shall constitute conclusive
evidence that a Electronic Interchange has been properly received.
(D) No Electronic Interchange shall give rise to any obligation unless and
until the Party initially transmitting such Electronic Interchange has
received an Electronic Interchange response from the other Party.
<PAGE>
(E) Each Party shall establish reasonable controls to ensure the timely
handling of all data transmissions and shall contact promptly the sending
Party for corrective action in the event of a transmission error, such as
an unintelligible or garbled transmission, or in the event electronic
transmission operations are lost.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
2. VALIDITY AND ENFORCEABILITY. (a) This Agreement has been executed by the
Parties to evidence their mutual intent to create binding obligations
pursuant to the Electronic Interchange specifying certain of the applicable
terms. Any Electronic Interchange properly transmitted pursuant to this
Agreement shall be considered a "writing" or "in writing" and any such
Electronic Interchange that contains or has a User ID affixed to it
("Signed Electronic Interchanges") shall be deemed for all purposes (i) to
have been "signed" and (ii) to constitute an "original" when printed from
electronic files or records established and maintained in the normal course
of business.
(b) The Parties agree not to contest the validity or enforceability of
Signed Electronic Interchanges under the provisions of any applicable law
relating to whether certain agreements are to be in writing or signed by
the Party to be bound thereby. Signed Electronic Interchanges shall be
admissible if introduced as evidence on paper in any judicial, arbitration,
mediation, or administrative proceeding to the same extent and under the
same conditions as other business records originated and maintained in
documentary form. Each Party agrees that it will not contest the
admissibility of copies of Signed Electronic Interchanges under either the
business records exception to the hearsay rule or the best evidence rule on
the basis that such Signed Electronic interchanges were not originated or
maintained in documentary form.
3. THIRD PARTY SERVICE PROVIDERS. (a) The Parties may transmit Electronic
Interchanges either directly or through third party service providers or
networks. Each Party shall be responsible for the costs of any third party
service provider with which it contracts and any other costs it incurs in
the electronic transmission or receipt of Electronic Interchanges under
this Addendum.
(b) Either Party may modify its election to use, not use, or change a third
party service provider upon thirty (30) days prior written notice to the
other Party.
4. OBLIGATION TO MAINTAIN RECORDS. Neither Party has an obligation to maintain
the storage of data records or other files for the other Party.
5. GENERAL TERMS AND CONDITIONS FOR PURCHASES AND SALES. This Addendum does
not express or imply any commitment to purchase or sell goods or services.
Where the Parties mutually agree to engage in such transactions using
Electronic Commerce, the general terms and conditions for such transactions
shall be those contained in the applicable purchase contract.
6. SECURITY PROCEDURES AND CONFIDENTIALITY OF USER IDS. (a) Each Party shall
adopt and use security procedures that are reasonably sufficient to ensure
that all transmissions of Electronic Interchanges are authorized and to
protect its business records and data from improper access.
(b) The Parties agree that User IDs are confidential and shall not disclose
the other Party's User ID to any unauthorized parties.
7. TERM AND TERMINATION. This Addendum shall remain in effect until terminated
by either Party with not less than *** prior written notice; PROVIDED,
HOWEVER, that any termination shall not affect the respective obligations
or rights of the Parties arising under any Electronic Interchanges or
otherwise under this Addendum prior to the effective date of termination.
8. LIMITATION OF DAMAGES. Neither Party shall be liable to the other for any
special, incidental, exemplary, or consequential damages arising from or as
a result of any delay, omission, or error in the electronic transmission or
receipt of any Electronic Interchanges pursuant to this Addendum, even if
the other Party has been advised of the possibility of such damages.
9. CONTINGENCIES BEYOND A PARTY'S CONTROL. Neither Party shall be liable for
any failure to fulfill its obligations under this Addendum if such failure
is caused by the occurrence of any contingency beyond its reasonable
control, including but not limited to any mechanical, electronic, or
communications failure, that prevents it from transmitting or receiving any
Electronic Interchanges.
<PAGE>
10. EXPIRATION OF CLAIMS. No action, regardless of form, arising out of this
Addendum may be brought by either Party more than *** after the cause of
action has arisen.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
11. GOVERNING LAW. This Addendum is governed under and in accordance with the
laws of the State of ***, U.S.A., and all obligations of the Parties
created in this Addendum are performable in ***.
12. NON-ASSIGNABILITY. This Addendum shall not be assigned or transferred by
either Party without the prior written consent of the other Party.
13. ENTIRE AGREEMENT. The entire understanding between the Parties is
incorporated herein and supersedes all prior discussions and agreements
between the Parties relating to the subject matter hereto. This Addendum
can be modified only by written amendment executed by the Parties, and
shall not be supplemented or modified by any course of dealing or trade
usage.
14. TITLES AND CAPTIONS. All titles or captions in this Addendum are for
convenience only. They shall not be deemed part of this Addendum and in no
way define, limit, extend, or describe the scope or intent of its
provisions.
15. INVALIDITY OF PROVISIONS. If any provision or provisions of this Addendum
is held by a court of competent jurisdiction to be invalid, illegal, or
unenforceable, the remainder of the provisions of this agreement shall
remain in full force and effect and shall in no way be affected, impaired,
or invalidated.
16. ADDRESSES AND NOTICES. Written notices required or permitted hereunder,
shall be deemed given and received when properly posted by registered or
certified mail, postage prepaid, first class, in an envelope properly
addressed to the person(s) identified by the Agreement. Each Party may
change the address at which notice at which notice may be sent to that
Party b y giving notice of such change to the other Party in accordance
with the notice provision of the Agreement.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
