EXHIBIT 10.1
[LETTERHEAD]
June 18, 1996
Xx. Xxxxx XxXxxxxxx, President
OVERLAND DATA, INC.
0000 Xxxxxx Xxx
Xxx Xxxxx, XX 00000
Dear Xxxxx,
By this letter agreement, Digital Equipment Corporation and Overland Data Inc
mutually agree to extend the price period in Exhibit A of Basic Order
Agreement #I6529, between the parties, effective July 1, 1996 through
June 30, 1997.
Please execute both copies of this letter agreement and return one original
copy to my attention for Digital's file. If you have any questions, please
call me.
Best Regards,
Xxx Xxxxxx
OVERLAND DATA INC DIGITAL EQUIPMENT CORPORATION
(Seller) (Buyer)
/s/ Xxxxx XxXxxxxxx 6/24/96 /s/ Xxx Xxxxxx 6/18/96
---------------------------------- ------------------------------
Xxxxx XxXxxxxxx Date Xxx Xxxxxx Date
President and CEO Purchasing Specialist
INDEX
1. BASIC ORDER AGREEMENT
2. PURCHASE ORDERS
3. PURCHASE ORDERS - EDI
4. PURCHASE PERIOD
5. PRICING
6. DELIVERY/LEADTIME/FLEXIBILITY
7. QUALITY, INSPECTION, AND ACCEPTANCE
8. PAYMENT AND SET-OFF
9. WARRANTY
10. CONFIDENTIAL INFORMATION AND ADVERTISING
11. INTELLECTUAL PROPERTY INDEMNITY
12. CHANGES
13. TERM OF AVAILABILITY
14. U.S. CUSTOMS, MARKING, AND DUTY DRAWBACK
15. FORCE MAJEURE
16. COMPLIANCE WITH LAWS
17. TERMINATION FOR CAUSE
18. NOTICES
19. DOCUMENTATION, TRAINING - TECH SUPPORT
20. BUYER OWNED MATERIAL
21. RIGHTS AND ASSISTANCE TO REPAIR
22. SIMILAR PRODUCTS
23. SURVIVAL
24. GENERAL
25. HOLD HARMLESS AND INDEMNITY
26. LIMITATION OF LIABILITY
. NO IMPLIED LICENSE
. TERMINATION FOR CONVENIENCE
. MANUFACTURING SITE FLEXIBILITY
. QUARTERLY REPORTS
. ENVIRONMENTAL REQUIREMENTS
. GENERAL - CONTINUED
EXHIBITS:
A - PRODUCTS, PRICING AND SPARES
B - CLEAN AIR AND WATER CERTIFICATION
C - EEO CERTIFICATION
D - QUALITY REQUIREMENTS
E - PRODUCT SPECIFICATIONS
1. BASIC ORDER AGREEMENT
A. This Basic Order Agreement and all attachments (called the "Agreement")
is made by Digital Equipment Corporation ("Buyer"'') and Overland Data
("Seller"). The Terms and Conditions herein exclusively govern the
purchase and sale of the Material, Spare Parts, Repair Parts, and
Expendable Parts more fully described in Exhibit A, Products, Pricing,
and Lead-time, and in applicable specifications,-attached hereto and
incorporated herein by reference ("Material, Snares, Repairs and
Expendables").
B. This Agreement does not specify a quantity of Material, Spares,
Repairs, and Expendables to be procured by Buyer, NOR DOES THIS
AGREEMENT OBLIGATE BUYER TO PURCHASE ANY MATERIAL, SPARES, REPAIRS, AND
EXPENDABLES. All such quantities will be specified on Buyer's Purchase
Orders as defined in Clause A of Section II, Purchase Orders, issued
under the provisions of this Agreement and incorporated herein by
reference.
C. If any term of this Agreement conflicts with any term of an issued
Purchase Order, this Agreement shall take precedence.
D. It is understood by the Seller that Material, Spares, Repairs, and
Expendables listed in Exhibit A of this Agreement may relate to
products that are under development by Buyer. Except as expressly
provided otherwise, Xxxxx accepts no responsibility for any expenses,
losses or action incurred or undertaken by Seller as a result of work
performed in anticipation of purchases of said Material Snares,
Repairs, and Expendables by Xxxxx.
E. Notwithstanding the requirement in Section 23, General, for two
signatures to amend this Agreement, Buyer may add products of Seller
to the list of Material, Spares, Repairs, and Expendables available
for purchase hereunder by adding such products on a Purchase Order
which is accepted by Seller. Such added products shall be deemed
Material, Spares, Repairs, and Expendables, as defined herein as
though listed in Exhibit A, Products, Pricing, and Leadtime, at the
time of execution of this Agreement. The price for which such added
products shall be available for purchase under this Agreement shall be
as stated on such accepted Purchase Order, subject to the provisions
of this Agreement. The Buyer shall subsequently memorialize the
addition to this Agreement of the added products in an amendment
pursuant to Section 23, General.
F. Seller grants buyer all necessary rights and licenses for Buyer to
market, promote, resell, distribute and service the Material and
including without limitation, rights and licenses under any applicable
patents, copyrights, trademarks, trade secrets, mask works, and other
intellectual property fights. Buyer shall have the right to use
Seller's name or trademarks in connections with any distribution of
the Material under this agreement.
2. PURCHASE ORDERS
A. The term "Purchase Order" shall mean Buyer's written Purchase Order
form and any documents incorporated therein by reference.
B. Buyer will order Material, Spares, Repairs; and Expendables by issuing
telex, facsimile, or telephonic orders or Purchase Orders. Buyer will
issue confirming written Purchase Orders within ten (10) days after
issuing such telex, facsimile or telephonic orders. Each Purchase
Order will specify items such as: item description, quantity, delivery
schedule, destination, total price of the Purchase Order. Each
Purchase Order issued under this Agreement shall be made part of, and
be incorporated into, this Agreement. Provided, however, that the only
binding terms of such Purchase Order if accepted, shall be the
specific terms such as," material, quantity, delivery, schedule,
delivery method. Seller shall have five (5)days after receipt to
reject the Purchase Order. By not rejecting the Purchase Order within
five (5) days, Seller will have accepted the Purchase Order. Buyer
may, at its option, order spare parts on a priority-one (.P-1-) basis
by issuing facsimile, electronic mail, or telephonic orders for P-1
orders only, or by issuing its Purchase Order form (collectively
referred to as "P-1 Purchase Orders").
Seller shall confirm and acknowledge P 1 Purchase Orders placed via
telex, facsimile or telephonic within one (1) business day of receipt
of such Purchase Orders. Seller shall be obligated to comply with all
P-1 Purchase Orders issued in accordance with this Agreement.
Accordingly, any failure of Seller to acknowledge any such P-1
Purchase Orders shall not be deemed a rejection of such order.
Acceptance by Seller is limited to the provisions of the Agreement and
the Purchase Order. No additional or different provisions proposed by
Seller shall apply. In addition, the parties agree that this Agreement
and issued Purchase Orders constitute a Contract for the Sale of Goods
and satisfy all statutory and legal formalities of a contract.
X. Xx Xxxxx's Purchase Order specifies export after passage of title,
Seller shall furnish Buyer with all necessary Export/Import
documentation. If Xxxxx's Purchase Order specifies export before
passage of title, Seller shall prepare all export/import documentation
and furnish a copy to Buyer. Export/Import documentation shall be in
accordance with the INCOTERMS then in force.
D. If Seller has more than one (1) geographic location which could supply
Spares and/or Repairs, Seller shall make such Spares and/or Repairs
available to Buyer from Seller's closest location to Buyer's ship to
location. Any of Buyer's locations outside the United States may place
orders with Seller's specified United States and/or foreign facilities
for such Spares and Repairs.
3. PURCHASE ORDERS - XXX
A. Purchase Orders
For the purposes of this Agreement, Purchase Order shall mean Buyer's
written Purchase Order form and Purchase Orders transmitted
electronically via Electronic Data Interchange (EDI), and any
documents incorporated therein by reference. Written Purchase Order
shall mean Digital's standard Purchase Order form. Electronic Purchase
Order shall mean only those Purchase Orders transmitted
electronically.
B. Written Purchase Orders
Buyer will order Material, Spares, Repairs, and Expendables by issuing
telex, facsimile, or telephonic orders or Purchase Orders. Buyer will
issue confirming written Purchase Orders within ten (10) days after
issuing such telex, facsimile, or telephonic orders. Each Purchase
Order will specify items such as: item description, quantity, delivery
schedule, destination, total price of the Purchase Order. Each
Purchase Order issued under this Agreement shall be made part of, and
be incorporated into, this Agreement. Seller shall have five (5) days
after receipt to reject the Purchase Order. By not rejecting the
Purchase Order within five (5) days, Seller will have accepted the
Purchase Order. Acceptance by Seller is limited to the provisions of
this Agreement and the Purchase Order.
No additional or different provisions proposed by Seller shall apply.
In addition, the parties agree that this Agreement and issued Purchase
Orders constitute a Contract for the Sale of Goods and satisfy all
statutory and legal formalities of a contract.
C. Electronic Purchase Orders
1. Buyer may order Material, Spares, Repairs, and Expendables by
issuing Electronic Purchase Orders, which include, without
limitation, EDI Purchase Orders. Each Electronic Purchase Order
will specify items such as: item description, quantity, delivery
schedule, destination, and total price of the Electronic Purchase
Order. Each Electronic Purchase Order issued under this Agreement
shall be made part of, and be incorporated into, this Agreement.
2. Seller shall electronically "Verify" receipt of the Electronic
Purchase Orders within one (1) day of Electronic Purchase Order
transmission by Buyer. As used herein, "Verify" shall mean
Seller's notification to Buyer that all necessary Electronic
Purchase Order information has been received in a readable and
understandable format. or that discrepancies, as noted, require
clarification.
3. Seller shall have five (5) days after receipt to reject the
Electronic Purchase Order. By not rejecting the Electronic
Purchase Order within five (5) days, Seller will have accepted
the Purchase Order. Acceptance by Seller is limited to the
provisions of this Agreement and the Purchase Order. No
additional or different provisions proposed by Seller shall
apply.
4. Electronic Purchase Order transmissions shall contain information
in a specified format, in accordance with prevailing applicable
Buyer policies, or as otherwise mutually agreed in writing. Such
policies will state specific generally available non-proprietary
content and transmission standards.
5. The parties acknowledge that hard (written) copies of Electronic
Purchase Orders will not be issued. The parties agree not to
contest the validity or enforceability of Electronic Purchase
Orders under the provisions of applicable law requiring that
contracts be in writing and signed by the party to be bound. In
addition, the parties further agree that this Agreement and
transmitted Electronic Purchase Orders constitute a Contract for
the Sale of Goods and satisfy all statutory and legal formalities
of a contract, including, without limitation, the Statute of
Frauds.
6. The parties acknowledge that the Electronic Purchase Orders
covered by this Agreement may be offered in evidence at any trial
or other evidentiary proceeding. The parties agree that
Electronic Purchase Orders, when produced in hard copy, shall
constitute business records, and shall be admissible to the same
extent as other generally recognized business records.
D. Export/Import Documentation
If Xxxxx's Purchase Order specifies export after passage of title,
Seller shall furnish Buyer with all necessary Export/Import
documentation. If Xxxxx's Purchase Order specifies export before
passage of title, Seller shall prepare all Export/Import
documentation and furnish a copy to Buyer. Export/Import
documentation shall be in accordance with the INCOTERMS then in
force.
4. PURCHASE PERIOD
A. The period during which Buyer may issue Purchase Orders for
Material, under this Agreement (Purchase Period) shall last five
(5) years beginning on 7/1/93 and expiring on 6/30/98.
B. The period during which Buyer may issue Purchase Orders for
Spares, Repairs, and Expendables under this Agreement (Spares
Purchase Period) shall last five (5) years beginning on 7/1/93 and
expiring on 6/30/98.
C. The Purchase Period may be extended for one (1) additional year
upon mutual written consent of the parties hereto.
5. PRICING
A. The prices set forth in Exhibit A, Products, Pricing, and Lead
time, shall remain fixed for the period set forth therein (Pricing
Period), and any agreed upon extensions. Sixty (60) days prior to
the end of the then current Pricing Period, Buyer and Seller shall
meet to review the pricing of Material, Spares, Repairs, and
Expendables for the next Pricing Period. Upon expiration of the
initial Pricing Period, Seller may change prices for Material,
Spares and Repairs no more frequently that once in every twelve
( 12 )
month period. Additionally, such price change requests must be
submitted to Buyer for review and approval and such proposed price
changes must be consistent with the following conditions:
1. All proposed price increases must be accompanied by financial
justification as part of such written notice and shall include,
at a minimum, data regarding increased labor and material costs.
Price increases must be authorized and accepted by the Buyer, in
writing, to Seller, before Seller implementation.
2. Price increases only apply to Purchase Orders issued on or after
the agreed upon effective date of increase.
4. Under no circumstance shall the Seller's price increase for any
material sold to Buyer exceed the percentage change in:
B. The prices for Material, Spares, Repairs, and Expendables are set forth
in Exhibit A, Products, Pricing, and Leadtime, and shall remain fixed
during the Purchase Period and any extension.
C. Prices include all charges such as packaging, packing, customs duties
imposed before passage of title, and all taxes except sales, use, and
other such taxes imposed upon the sale or transfer of Material,
Spares, Repairs and Expendables for which Buyer is solely responsible
under applicable law and for which Buyer is properly invoiced by
Seller.
X. Xxxxxx represents that prices established herein, to be paid by Buyer,
shall not exceed the prices charged to any other customer of Seller
for materials which are the same or substantially similar to the
Material, Spares, Repairs, and Expendables, taking into account the
quantities and the Terms and Conditions of this Agreement, and Seller
will forthwith refund any excess amounts paid by Buyer. With the
exception of Model # 966358-001 and # 967046-002.
6 DELIVERY/LEADTIME/FLEXIBILITY
X. Xxxxx's Purchase Orders shall state Seller's committed delivery dates
for Material, Spares, Repairs, and Expendables. TIME AND RATE OF
DELIVERY ARE OF THE ESSENCE OF ALL PURCHASES MADE UNDER
THIS AGREEMENT. The minimum agreed period between Xxxxx's issuance of
a Purchase Order and the scheduled delivery date ("Leadtime") shall be
as stated in Exhibit A, Products, Pricing, and Leadtime.
B. All deliveries shall be FOB Origin. Buyer shall select the carrier and
shall not transportation charges on a freight collect. basis.
C. If Seller delivers Material, Spares, Repairs, and Expendables more than
three (3) days in advance of the scheduled delivery date, Buyer may
either return such Material Spares, Repairs, and Expendables at
Seller's expense for subsequent delivery on the original delivery date
or retain such Material, Spares, Repairs, and Expendables and postpone
payment until it would have been due if Seller had delivered Material
Spares, Repairs, and Expendables as scheduled. Without limiting any of
Buyer's rights and remedies in equity or at law, if Seller is more
than one (1) day late in meeting the scheduled delivery date, Buyer
may require that Seller ship the Material Spares, Repairs, and
Expendables via premium means at Seller's expense, or may cancel the
order for such Material, Spares, Repairs, and Expendables without
liability to the Buyer.
D. Seller shall deliver the exact quantity of Material, Spares, Repairs,
and Expendables scheduled. If Seller delivers less than the scheduled
requirement, Seller shall correct the shortage within a two (2) day
period. If Seller fails to correct such shortage within this period,
without limiting any of Buyer's rights and remedies in equity or at
law, Buyer may cancel and/or return all or part of the order without
cost or liability. If Seller delivers more than the quantity ordered,
Xxxxx may return any excess Material, Spares, Repairs, and Expendables
at Seller's expense.
E. Buyer may without cost or liability: cancel/reschedule orders of any
Material, Spares, Repairs, and Expendables with a forty-five (45) day
notice before delivery for cancellation and a thirty (30) day notice
for reschedule. A buyer may cancel or reschedule orally provided it
issues written notice in two (2) weeks.
F. Buyer may require that shipments of Material, Spares and/or repairs
under this Agreement be shipped by Seller to various destinations. The
Purchase Order will clearly specify the -SHIP TO- location for each
order placed with Seller.
X. Xxxxx will measure Seller's performance against commitments, for the
purpose of establishing Seller's rate of timely delivery and leadtime
improvement against Buyer's requirements. Timely delivery shall mean
delivery of scheduled quantities no more than one (1) day early, or
one (1) day late.
H. Buyer may, without cost or liability, increase or decrease the Quantity
of Material, Spares and/or Repairs ordered under this Agreement in
accordance with the following schedule.
Leadtime Before Delivery % Increase % Decrease
Shipment Shipment
0 to 30 calendar days 0 % 0%
31 to 60 calendar days 25 % 50%
61 to 90 calendar days 50 % 100%
91 + calendar days 100 % 100%
SUPPLIER TO GIVE BEST EFFORT TO IMPROVE THE ABOVE
RATES AND OR PERCENTAGES.
I. P-1 Purchase Orders
1. Seller shall accept and process Purchase Order(s) for P-1
requirements eight (8) hours a day, five (5) business days per
week, fifty two (52) weeks per year. All P-1 purchase orders will
be delivered to Buyer's designated carrier or freight agent
within twenty-four (24) hours of authorization.
2. Invoice(s) for P-1 purchase order(s) must be accompanied by a
copy of the waybill(s) for the shipment(s).
3. If Buyer places a P-1 purchase order because Seller has failed to
meet any requirement this Agreement or of Buyer's Purchase
Order(s) as they relate to the required delivery date or quantity
of conforming Material, Spares, Repairs, and Expendables to be
delivered, Seller shall pay all transportation charges for such
order.
J. Buyer shall use its reasonable efforts to forecast its intended
purchases for a twelve (12) month period on a monthly basis. Such
forecast is for Seller's convenience only, and shall not create any
liability for Buyer or obligation to purchase Material, Spares,
Repairs, and Expendables.
K. A copy of Seller's packing list shall accompany all Material, Spares,
Repairs, and Expendables shipments and shall indicate Buyer's Purchase
Order Number, Part Number, and Serial Number.
L. Seller shall notify Buyer and Agent, where applicable, of availability
of Material, Spares, Repairs, and Expendables at least twenty-four
(24) hours prior to delivery to the designated place of delivery, as
specified on Buyer's Purchase Order.
M. Where Seller has agreed to responsibility for carriage, Xxxxx retains
the right to reject Material, Spares, Repairs, and Expendables
delivered outside normal working hours (8:30 a.m. to 4:45 p.m. Monday
to Friday, inclusive).
7. QUALITY, INSPECTION, AND ACCEPTANCE
A. Prior to delivery Seller shall insure that all Material, Spares,
Repairs, and Expendables are in accordance with the provisions of this
Agreement, including but not limited to Exhibit E, Product
Specification and Exhibit D, Quality Requirements.
X. Xxxxxx authorizes and agrees to assist Xxxxx in performing source
inspection and quality assurance reviews at Seller's manufacturing
facilities, but this shall in no way relieve Seller of its obligation
to deliver conforming Material, Spares, Repairs, and Expendables nor
waive Buyer's right of inspection; nor does said right of inspection
waive any rights under the warranty provisions.
C. During the Inspection Period of thirty (30) days after Xxxxx's receipt
of the shipment of Material or Spares, Repairs and Expendables Buyer
will return Material Spares, Repairs, and Expendables which fails to
pass inspection per Acceptance Quality Level (AQL) criteria defined in
Exhibit D for, at Buyer's option, credit, refund of purchase price, or
repair/replacement within five (5) days of Buyer's notice to Seller of
nonconformance. Seller shall designate carrier and pickup of rejected
Material, Spares, Repairs, and Expendables and the pickup shall occur
within five (5) days of notice, or Buyer may select a carrier and
return rejected Material, Spares, Repairs, and Expendables COD, and
risk of loss will pass to Seller for rejected Material, Spares,
Repairs, and Expendables FOB Buyer's dock.
D. In the event that Buyer supplies any outgoing test station(s) for
Seller's use, the terms of supplying such test station(s) are set
forth in the Bailment Agreement.
E. In the event Material, Spares, Repairs, and Expendables fail to meet
Buyer's quality requirements as stated in the Quality Requirements,
Exhibit D, hereto, Buyer may invoice Seller for Buyer's labor, for
screening of defective product, until the quality levels are met.
Seller shall not be liable for the costs associated with routine
audits performed by Xxxxx.
8. PAYMENT AND SET-OFF
X. Xxxxx shall issue payment net thirty (30) calendar days after the later
of the scheduled delivery date and receipt of a correct packing list,
correct invoice, and conforming Material, Spares, Repairs, and
Expendables.
B. Amounts owed to Buyer due to rejections of Material, Spares, Repairs,
and Expendables, or discrepancies on paid invoices will be, at
Buyer's option, fully credited against future invoices payable by
Xxxxx, or paid by Seller within thirty (30) calendar days from
Seller's receipt of a debit memo or other written request for
payment from Buyer.
C. Buyer shall have the right at any time to set-off any amount owed from
Seller to Buyer or its subsidiaries or affiliates against any amount
payable by Buyer pursuant to this Agreement and/or any Purchase Order
issued hereunder, provided such set-off does not contravene applicable
exchange control laws or any other applicable statute.
X. Xxxxxx and Buyer agree that Buyer may at its sole discretion utilize
for its own purpose or assign to third-parties all content credits for
the value, in whole or in part, of purchases made pursuant to this
Agreement. Such utilization or assignment of offset credits may be in
furtherance of fulfilling international offset obligations to any
government. Xxxxxx agrees to make available the maximum offset
credits, by the laws of the government in question and for which Xxxxx
is entitled, including those assignable to either party.
9. WARRANTY
A. Seller warrants for twelve (12) months from date of acceptance by Buyer
that all Material, Spares, Repairs, and Expendables shall be free from
defects in material, workmanship, and design, shall conform to
applicable specifications, drawings, samples, and descriptions
referred to in this Agreement and shall be suitable for the purpose
for which intended. Seller warrants it has the right to convey the
Material, Spares, Repairs, and Expendables and that the Material,
Spares, Repairs, and Expendables are free of all liens and
encumbrances, and that the Material, Spares, Repairs, and Expendables,
does not infringe on any intellectual property interest. These
warranties shall survive any inspection, delivery, payment, and
termination of this Agreement, and shall run to Buyer, its customers,
successors, and assigns. Seller agrees to date code with the
expiration date of warranty, on all Spares. Seller agrees to date code
with expiration date of warranty on all spares for new products added
to this agreement. Seller will use best effort. to add date codes to
all existing spares.
B. Seller shall correct defects in Material, Spares, Repairs, and
Expendables at its facility. At Buyer's option, Seller shall repair or
replace all defective Material, Spares, Repairs, and Expendables
within five (5) working days of receipt of such Material, Spares,
Repairs, and Expendables. Seller shall bear all warranty
costs such as labor, material, inspection, and shipping to and from -'
Buyer's facility or Buyer's customer's facility, whichever is the location
of the Material, Spares, Repairs, and Expendables. If Buyer or Buyer's
customer incurs any such costs, Buyer may either recover them directly from
Seller or deduct them from any amounts due Seller. Seller agrees to date
code with expiration date of warranty on all Spares. Seller agrees to date
code with expiration date of warranty on all spares for new products added
to this agreement. Seller will use "best effort" to add date codes to all
existing spares.
C. In no event will either party be responsible to the other for any
incidental or consequential damages arising out of this warranty.
However, nothing herein shall be deemed an assumption by either party
of liability which the other party has in contract or at law, with
record to any third-party claims.
D. In addition to the above remedies, at Buyer's option, Seller, at its
expense , shall provide technical assistance and any parts necessary
to repair Material, Spares, Repairs still under warranty, at Buyer's
facility. Seller shall provide this within forty eight (48) hours
after it receives Buyer's request for on-site support.
E. Out Of Warranty Material, Spares, Repairs. During the purchase period
of this agreement or any extension thereof, Seller agrees to refurbish
to a "Like New" condition, and to latest shippable revision level ( if
requested by Buyer) the out - of- warranty Material, Spare, Repair
parts at the re-furbishment prices listed in Exhibit A. Such
refurbished Materials, Spares, and Repairs will have the same warranty
as found in Section 9, Warranty. Materials, Spares, Repairs submitted
by Xxxxx for said refurbishment will be in reasonable good condition
as mutually agreed upon by both parties. "Like New" condition means a
product refurbished to meet the electrical and mechanical requirements
of the applicable Buyer's specification including the replacement of
non-functional parts, and new plastic/metal cover sets, as applicable,
as well as to latest Seller shippable revision level ( if requested by
Buyer). A process will be documented that identifies the steps the
Seller will use to estimate the refurbishment cost, and any units
exceeding a refurbishment cost benchmark established by the Buyer,
will be returned to buyer, with no refurbishment, for Buyer final
disposition.
10. CONFIDENTIAL INFORMATION AND ADVERTISING
A. Seller shall maintain as confidential and shall not disclose to any
person outside its employ, nor use for purposes other than performance
of this Agreement, any specifications, drawings, blueprints, data,
business information, or other confidential information which Seller
learns by virtue of this Agreement, except as required by law, and
after written notice to Buyer. Upon termination of this Agreement,
Seller shall promptly return to Buyer all confidential material and
all copies.
B. Without Buyer's prior written consent, Seller shall not in any manner
disclose, advertise, or publish the existence or terms of transactions
under this Agreement.
X. Xxxxx may reproduce and use Seller's manuals, schematics, and
merchandising literature provided by Seller under this Agreement.
11. INTELLECTUAL PROPERTY INDEMNITY
Seller shall defend, at its expense, any claim against Buyer alleging that
Material, Spares, Repairs, or Expendables, or any part thereof infringes any
patent, copyright, trademark, trade secret, mask work, or other intellectual
property interest in any country and shall pay all costs and damages awarded, if
Seller is notified promptly in writing of such a claim. If an injunction against
Buyer's or Buyer's customer's use, sale, lease, license, or other distribution
of the Material, Spares, Repairs, or Expendables or any part thereof results
from such a claim (or if Buyer reasonably believes such an injunction is
likely), Seller shall, at its expense, (and in addition to the Seller's other
obligations, hereunder) and as Buyer requests: obtain for Buyer and/or Buyer's
customers the right to continue using, selling, leasing, licensing, or otherwise
distributing the Material, Spares, Repairs, or Expendables, or replace or modify
it so it becomes noninfringing but functionally equivalent. The provisions of
this Section shall not apply to any claim for infringement resulting solely from
Seller's compliance with Xxxxx's detailed written design specifications, where
provided.
12. CHANGES
X. Xxxxx must be advised in writing of ANY and ALL product or process changes
prior to implementation. Seller shall make no changes during the Purchase
Period for Material, Spares, Repairs, and Expendables which affect design,
form, fit, or function, appearance, reliability, place and process
manufacture, or packing and packaging specified by this Agreement without
Buyer's prior written approval. Buyer will review Seller's written request
for such changes within forty (40) days of Buyer's receipt of such request
and whatever documentation Buyer reasonably requires to evaluate such
request, which shall include all maintenance related information and
samples which incorporate the proposed change(s). Xxxxx agrees to use
reasonable efforts to issue to Seller, Xxxxx's final acceptance or
rejection of Xxxxxx's proposed change within an additional forty (40) day
period.
B. As a part of Seller's internal engineering process, prior to release of any
change, Seller shall demonstrate, to Buyer's satisfaction, that the change
has not affected the operation and functional performance of the Material,
Spares, Repairs, and Expendables listed in Exhibit A, hereto.
C. For all changes approved by Buyer, Seller shall furnish to Buyer all
necessary documentation to enable installation and implementation of the
changes and make available for purchase by Buyer hereunder, parts in kit
form and at reasonable prices for nonmandatory changes.
D. Any significant change in manufacturing process or place of manufacture must
be certified per the procedure set forth in Exhibit D, Quality
Requirements, hereto, and prior to Buyer's written acceptance thereof. If
Seller proposed to transfer the manufacture of Material, Spares, Repairs,
Expendables to another manufacturing or repair facility, or to another
manufacturing line from a currently operating and qualified manufacturing
line, Seller shall notify Buyer of the intent in writing forty (40) days
prior to the proposed commencement of any such plan. Seller's notice shall
include a transfer plan acceptable to Buyer and shall include as a minimum
a detailed schedule for the technical qualification, managerial
responsibility and program support for the Material, Spares, Repairs,
Expendables. The plan shall include the formation of a manufacturing team
made up of representatives of both Buyer and Seller which will monitor and
report Xxxxx's conformance to the
schedule and implementation of the transition plan. Buyer shall use _-
reasonable efforts to review and approve the plan in a timely manner, but Seller
shall not commence to implement the plan until ten (10) days after Buyer's
approval.
Seller shall continue utilizing the previously approved manufacturing or repair
line to meet Buyer's Purchase Order requirements until Seller proves the product
produced in the new line or facility meets the requirements of Exhibits D and E,
hereto, as well as proving to be reliable to delivery and program completion of
the transition plan and after satisfactory demonstration of qualification and
reliability of delivery performance, Buyer will supply in writing notice of the
approval status of the new facility or line.
E. If Seller fails to comply with Clauses A through D of this Section, then
Seller shall bear all of Buyer's costs to correct all changes affecting
Material, Scares, and Repairs.
F. A "Mandatory" Change as used herein shall be defined as: any change required
to insure that the Material, Spares, Repairs, and Expendables, (1) meets
the applicable Product Purchase Specification(s), (2) is safe, and
(3)complies with all applicable laws.
1. After written Seller notification of change to Buyer, and Buyer review
of change and written approval to Seller, Seller shall start
implementation of Mandatory Changes to the Material, Spares, Repairs,
and Expendables, per a mutually agreed upon schedule(s) and shall not
ship said Material, Spares and Repairs until brought into conformance,
unless authorized by Buyer to do otherwise.
2. For implementing Mandatory Change(s) to product already delivered to
Buyer, Seller shall supply to Buyer material which contains such
Mandatory Change(s) ( H Seed Stock" ), which shall be delivered to
Buyer per the schedule following:
3. Seller is to allocate, at no charge to Buyer, Seed Stock equal to 25%
percent of the total product delivered to Buyer to date in which
Seller requires Mandatory Change(s), Product so replaced with Seed
stock will be repaired by Seller to comply with Mandatory Change(s)
and delivered again to Buyer as Seed Stock. The percentage represents
what is required to implement the Mandatory Change(s) in one (1) year
after receipt by Seller of Buyer's approval of such Mandatory
Change(s). At end of one (1) year period, or upon completion of such
Mandatory Change(s) to all units delivered to
Buyer, which ever comes later, Xxxxx will return remaining Seed Stock to
Seller.
4. Seller shall deliver the Seed Stock within thirty (30) days after
having implementing the Mandatory Change(s) in manufactured units.
Seller shall deliver Seed Stock pursuant to the Buyer's Purchase Order
form which shall be consistent to this Agreement. Purchase Order
number may be provided via telephone, with facsimile transmission
within twenty four (24) hours.
G. Change Notices: Any notice given under this Section shall be initially
transmitted by means agreed to between the parties, to addressees
specified in Section 17, Notices herein.
13. TERM OF AVAILABILITY
A. In consideration for Buyer's purchase of any Material, Spares,
Repairs, and Expendables, hereunder, Seller grants to Buyer the option
to purchase Material, Spares, Repairs, and Expendables, at the last
revision level purchased under this Agreement, for the period of five
(5) years after the expiration date of this Agreement or any extension
thereof, or for as long as said Material, Spares, Repairs, and
Expendables, are made available to any of Seller's other customers,
whichever is the later. Seller to provide a one (1) year advance
written notice period for a last time buy at the end of the product
manufacture life.
14. U.S. CUSTOMS, MARKING, AND DUTY DRAWBACK
A. Country of Origin
1. "Country of Origin" Marking: The Seller shall mark, in English, all
Material, Spares, Expendables, Repairs with the Country of Origin
(manufacture), in compliance with Section 304 of the United States
Tariff Act. Both the Material, Spares, Expendables, Repairs and its
container must be conspicuously marked with the Country of Origin. If
the Material, Spares, Repairs, and Expendables, itself cannot be
marked legibly due to size, then its immediate container must he
marked
2. For each delivery against purchases made under this Agreement, Seller
shall furnish Buyer with a signed certificate stating Country of
Origin (manufacture) by quantity and part number (Buyer's and
Seller's)
B. Duty Drawback
1. For each purchase under this Agreement, and for each item of Material,
Spares, Repairs, Expendables delivered hereunder for which U.S.
Customs import duties have been paid upon importation, or for
Materials, that contain parts for which import duties have been paid,
Seller shall furnish Buyer with a signed -MANUFACTURING DRAWBACK ENTRY
and/or CERTIFICATE- (U.S. Customs Form #CF331 or its successor).
Seller warrants that information contained in such Form #CF33 shall be
accurate and shall comply with United States Duty Drawback and Customs
laws and regulations. Seller shall indemnify and hold Buyer harmless
from and against any claims, costs, or damages resulting from or
arising out of Buyer's reliance on such information and/or Form
#CF331.
2. Seller shall provide such required Form(s) #CF331, and/or information,
at the end of each fiscal quarter, unless otherwise agreed in writing
by both parties.
3. Buyer reserves its first right to claim Duty Drawback on all purchases
made under this Agreement.
C. Commercial Invoices: Seller shall provide a Commercial Invoice to
accompany each shipment made against any Purchase Order placed
hereunder. This Commercial Invoice shall be used for U.S. Customs
clearance. The Commercial Invoice must contain the following
information (in English): Name and address of Manufacturer/Seller
(where the manufacturer is not the seller the name and address of the
seller); Country of Origin (manufacture) of the product; name and
address of Buyer; a description of the product; the quantity and unit
price; the purchase price in the currency of the purchase; the kind of
currency involved; the terms of sale (i.e., FOB named point, CIF,
Works); breakdown of insurance and freight charges (if CIF terms are
used); Xxxxx's part number(s): Xxxxx's contact name; Xxxxx's cost
center code.
D. Prealerts: If Buyer is the importer of record Seller shall provide
Buyer with prealerts on all shipments of Material, Spares, and
Expendables to Buyer's designated Import Group and/or Broker.
15. FORCE MAJEURE
Neither party shall be liable for failure to perform any of its obligations
under this Agreement during any period in which such party cannot perform
due to fire, flood, or other natural disaster, war, embargo, riot, or the
intervention of any government authority, provided that the party so
delayed immediately notifies the other party of such delay. If Xxxxxx's
performance is delayed for these reasons for a cumulative period of
twenty-five (25) days or more, Buyer may terminate this Agreement and/or
any Purchase Order hereunder by giving Seller written notice, which
termination shall become effective upon receipt of such notice. If Buyer
terminates, its sole liability under this Agreement or any Purchase Orders
issued hereunder will be to pay any balance due for conforming Material (1)
delivered by Seller before receipt of Buyer's termination notice; and (2)
ordered by Buyer for delivery and actually delivered within twenty (20)
days' after receipt of Xxxxx's termination notice.
16. COMPLIANCE WITH LAWS
A. All Material, Spares, Repairs, and Expendables 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. Upon request, Seller agrees to certify compliance with
any applicable law or regulations. Seller's failure to comply with any of
the requirements of this Section may result in a material breach of this
Agreement.
B. 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 910.000:
52.222-26 Equa1 Opportunity (APR 198'4)
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)
A copy of the Filing Standard Form 100 (EEO-1) and Development of
Affirmative Action Compliance Program is attached as an Exhibit to this
Agreement, and incorporated herein by reference.
C. 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. A copy of the Certification required under
these statutes is attached as an Exhibit to this Agreement and
incorporated herein by reference.
D. The provisions of any applicable State "Right-to-Know. laws and
regulations are made a part of this Agreement. A copy of the
applicable Material Safety Data Sheets as required under such laws and
regulations shall be provided by Seller upon delivery of Material,
Spares, Repairs, and Expendables and updated as necessary.
E. 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.
F. All Material, Spares, Repairs, and Expendables 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 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.
G. 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.
X. Xxxxxx agrees to comply with the United Stated Federal requirements
contained at Title 40, Code of Federal Regulations Part 82 "Protection
of Stratospheric Ozone: Labeling".
I. 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.
17. TERMINATION FOR CAUSE
A. The occurrence of any of the following constitutes a breach and is
cause for Buyer's termination of this Agreement and or/its Purchase
Orders
1. Seller fails to deliver Material, Spares, Repairs, and
Expendables on time.
2. Material, Spares, Repairs, and Expendables, do not conform to the
applicable descriptions or specifications.
3. Seller fails to perform any material provision of this Agreement.
4. Seller assigns this Agreement, or any obligation or right hereunder.
(The word "assign" to include, without limitation, a transfer of major
interest in Seller.)
5. Seller merges with a third-party (not a parent or subsidiary company),
without the prior written consent of Buyer.
6. Xxxxxx becomes insolvent or makes an assignment for the benefit of
creditors, or a receiver or similar officer is appointed to take
charge of all or part of Seller's assets.
B. Seller must cure any of the above breaches except late delivery
pursuant to Clause A., paragraph 1 above, for which there shall be no
cure period, and notify Buyer of such cure within ten (10) days from
receipt of a notice to cure from Buyer. If Seller fails to so cure,
Buyer may terminate this Agreement and/or any Purchase Orders under it
by giving Seller written notice. Buyer shall have no liability except
for payment of any balance due for conforming Material, Spares,
Repairs, and Expendables delivered before the date of Buyer's notice
to cure.
18. 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 following addresses:
If to Seller: If to Buyer:
Overland Data Digital Equipment Corporation
0000 Xxxxxx Xxxx Xx. 0 Xxxxxxxxxxxx Xxxx.
San Diego, Ca 92111 Salem, New Hampshire 03079
ATTN: Vice President ATTN: Purchasing Manager
Sales and Marketing
19. DOCUMENTATION, TRAINING & TECH SUPPORT
Seller hereby grants to Buyer the right to reproduce, in whole or in part, all
documentation and training material provided to Buyer in order for Buyer to
effectively service Seller's products.
20. BUYER OWNED MATERIAL
If any Material, Spares, Repairs, and Expendables ( "Buyer Owned Material" ) is
returned to Seller, it will be identified in Buyer's accompanying Shipping and
Billing Authorization form ( "SBA.). Buyer will retain title to all such items.
While Buyer Owned Material is in Seller's care, custody, and control, Seller
shall insure it at Seller's own expense in the amount of the Buyer Owned
Material's full replacement value against all risks of physical loss excluding
nuclear risks or acts of war. Seller shall keep such material separate and
identified as Buyer Owned Material and shall use such material solely under the
terms of this Agreement. Upon request from Buyer, Seller shall promptly return
all Buyer Owned Material.
21. RIGHTS AND ASSISTANCE TO REPAIR
It is mutually agreed between Buyer and Seller that Seller-grants to Buyer the
right to repair or have repaired Material, Spares and Seller will provide the
Buyer, at Buyer's request, a list of components and the list of Seller approved
Suppliers for those components. The components that are not available to Buyer
from sources other that Seller are to be listed and unit prices identified with
quantity discounts, if any. Those parts having generic industry identification
(not proprietary to Seller) and available to Buyer shall be cross referenced to
generic part numbers. Seller further agrees to provide Buyer with the available
test specifications and test procedures and drawings required for testing the
finished Material, Spares, Repairs along with a full description, manufacturer's
model numbers, etc., of the test equipment involved/required to perform such
tests.
All requested information will be provided to the Buyer by Seller within ninety
(90) days from such written requests by Xxxxx.
22. SIMILAR PRODUCTS
Seller understands that Buyer designs, develops and acquires hardware and
software for use with its own computer system products, and that existing or
planned hardware and software independently developed or acquired by Buyer may
contain ideas and concepts similar or identical to those contained in the
Seller's product. Seller agrees that entering this Agreement shall not preclude
Buyer in any way, from using such ideas and concepts to develop or acquire
similar hardware and software for any purpose, without obligation to the Seller,
provided Buyer does not copy for such use, in whole or in part, the Seller's
product.
23. SURVIVAL
The provisions of this Agreement dealing with Delivery, Payment and Set-off,
Warranty, Confidential Information and Advertising, Intellectual Property
Indemnity, Changes, Term of Availability, U.S. Customs, Marking, and Duty
Drawback Requirements, Compliance with Laws, General, and all other sections
which by their language, context or nature are intended to survive, shall
survive termination or expiration of this Agreement.
The terms, provisions, representations, and warranties contained in the
Agreement shall survive expiration or earlier termination of this Agreement
notwithstanding delivery, acceptance of and/or payment for the Material, Spares,
Repairs, and Expendables ordered hereunder.
24. GENERAL
A. This Agreement is the complete and entire understanding between the parties
on this subject matter and supersedes all prior agreements, proposals,
representations, statements, or understandings whether written or oral on
this subject between them. The provisions of this Agreement may be amended
or waived only by a writing executed by the authorized representatives of
the parties hereto.
B. In the event that either party to this Agreement shall, on any occasion,
fail to perform any provision of this Agreement, and the other party does not
enforce that provision, the failure to enforce shall not prevent enforcement of
the provision on any other occasion.
C. As used in this Agreement, except where otherwise noted, the term "days"
shall mean business days.
X. Xxxxxx, including its servants, agents, and employees, is an independent
contractor and not an agent or employee of Buyer. Without limiting the
generality of the foregoing, Seller is not authorized to represent or make
any commitments on behalf of Buyer, and Xxxxx expressly disclaims any
liability therefore.
E. Supplemental terms are included in Exhibit A through Exhibit E and are
incorporated herein by reference.
F. All rights and remedies conferred by this Agreement, by any other
instrument, or by law are cumulative and may be exercised singularly or
concurrently. If any provision of this Agreement is held invalid by any law
or regulation of any government or by any court, such invalidity shall not
effect the enforceability of any other provisions hereof. This Agreement
and any Purchase Orders issued hereunder shall be governed by and
interpreted in accordance with the laws of the Commonwealth of
Massachusetts
25. HOLD HARMLESS AND INDEMNITY
X. Xxxxxx shall defend, indemnify, and hold Buyer, its officers, directors,
agents, and employees harmless from and against any and all claims, losses,
expenses (including reasonable attorney's fees), demands, settlements, or
judgments ("Claims") which result from or arise out of:
1. The presence of the Seller, equipment, or tools used by Seller in the
performance of this Agreement on the property of Buyer or its customers; or
2. The acts, errors, omissions, or negligence of Seller while on the property
of Buyer or its customers, regardless of whether the loss, damage, or
injury resulting from same occurs after the Seller has left such property:
or
3. The use by Seller of Buyer's equipment, tools, or facilities ("Equipment")
whether or not any Claims are based upon the condition of the Equipment or
Buyer's, its agent's, or employee's alleged negligence in permitting its
use. Permission by Buyer to use the Equipment shall be gratuitous; or
4. The nonpayment by Seller of any monies due and owing a third-party with
whom Xxxxxx has contracted, at anytime during the Purchase Period or any
extension thereof.
B. Insurance:
1. Seller agrees to carry at all times, and with companies acceptable to Buyer,
insurance of the kinds and in the amounts listed below:
a. Worker's Compensation statutory limits in each state in which Seller is
required to provide Worker's Compensation coverage.
b. Employer's Liability not less than $500,000 per employee.
c. Comprehensive General Liability - including Contractual Liability,
Independent Contractor's Liability, Products and/or Completed Operations
Liability, and Personal Injury/Property Damage Coverages in a combined
single limit of not less than $1,000,000.
d. Automobile Liability for owned, non-owned, and hired vehicles in a combined
single limit of not less than $1,000,000.
e. Umbrella Liability a combined single limit of not less than $2,000,000.
C. Seller shall indemnify, hold harmless, and defend Buyer from and against any
and all claims, suits, actions, damages, judgments, costs, losses, expenses
(including settlement awards and reasonable attorney's fees) and other
liabilities arising from or in connection with any product liability claims
related to the Material including, but not limited to, personal injury as
well as damage to real or personal property arising out of the use or sale
of the Material, and regardless of the theory upon which the claim is based
including, but not limited to, negligence, strict liability, and breech of
warranty.
26. LIMITATION OF LIABILITY
Except as otherwise provided in this Agreement, neither party shall be liable
for special, indirect, incidental, or consequential damages. The foregoing
limitation shall not limit Seller's liability for any costs, expenses, and
damages arising out of or in connection with: claims brought by third-parties;
Seller's unauthorized disclosure of Buyer's confidential information; or any
indemnification granted by Seller in connection with this Agreement.
27. NO IMPLIED LICENSE
The parties understand that, except as may be otherwise expressly stated herein,
neither the Terms and Conditions of this Agreement, nor the acts of either party
arising out of this Agreement or related to Buyer's purchase, use, sale, or
other distribution of Material, Spares, Repairs, or Expendables may be
considered in any way as a grant of any license whatsoever under any of Buyer's
present or future patents, copyrights, trademarks, trade secrets, or other
proprietary rights, nor is any such license granted by implication, estoppel, or
otherwise.
28. TERMINATION FOR CONVENIENCE
Buyer may terminate this Agreement for convenience sixty (60) days after giving
Seller written notice.
29. MANUFACTURING SITE FLEXIBILITY
X. Xxxxxx agrees to manufacture and supply Material under this Agreement from
its San Diego, Ca. facility.
X. Xxxxxx agrees to manufacture and supply Spares, Repairs, Expendables, from
its San Diego, Ca. facility.
C. Seller may not change the manufacturing location for either Material,
Spares, Repairs, Expendables, without prior written Buyer authorization.
D. In the event that Seller desires to change any above referenced manufacture
or supply site, Seller shall submit a written request to that effect to
Buyer, and such request shall contain a Transition Plan which shall
address, but not be limited to the following issues:
1. Major " Milestone Schedule".
2. Manufacturing site - Qualification Procedure''.
3. Assembly instructions.
4. Tool Strategy.
5. Resource Plan.
6. Raw Material re-sourcing plan.
7. Dual manufacturing strategy ( if applicable )
8. Phase In/Phase out manufacturing plan.
9. Contingency Plan
Seller may implement such plan only after it receives the Buyer's written
authorization.
30. GOVERNMENT CONTRACTS
If any Material, Spares or Repairs are incorporated into products sold under a
United States Government Contract or Subcontract , the subcontractor terms of
that Contract or Subcontract shall apply to this Agreement for such material.
EXHIBIT A
Material Product & Price Schedule
[*]
31. EXHIBIT CLEAN AIR & WATER CERTIFICATION
EXHIBIT B
Clean Air and Water Certification
The undersigned Contractor as a supplier of materials or services to Digital
Equipment Corporation agrees and certifies as follows:
1. any facility to be utilized in the performance of this proposed order or
subcontract is not listed on the Environmental Protection Agency List of
Violating Facilities;
2. it will promptly notify Digital, prior to award, of the receipt of any
communication from the Director, Office of Federal Activities, U.S.
Environmental Protection Agency, indicating that any facility which it
proposes to use for the performance of a purchase order or subcontract is
under consideration to be listed on the Environmental Agency List of
Violating Facilities; and
3. it will comply with the applicable provisions of the Clean Air Act (42
U.S.C. 7401 et. seq.) and the Clean Water Act (33 U.S.C. 1251 et. seq.);and
4. it will include substantially this certification, including this Paragraph
(IV), in every non-exempt subcontract.
- or
5. compliance with the provisions of the Clean Air Act (42 U.S.C. 7401 et seq.)
and the Clean Water Act (33 U.S.C. 1251 et seq.) [ ] is not applicable
Company Name Overland Data, Inc.
Signed By /s/ Xxxxx XxXxxxxxx Date: 9/29/93
Title President & CEO
Once completed, return this form to the Digital Equipment Corporation Purchasing
Department which issued the Purchase Order or Agreement to which it was
attached.
32. EXHIBIT EEO CERTIFICATION
EXHIBIT C
EQUAL EMPLOYMENT OPPORTUNITY
FILING STANDARD FORM 100 (EEO-1) AND DEVELOPMENT OF
AFFTRMATTVE ACTION COMPLIANCE PROGRAM
Contractor agrees and certifies that, if the value of any contract or purchase
order is $50,000 or more and the Contractor has 50 or more employees, Contractor
shall be bound by and agree to:
A. File a complete and accurate report on Standard From 100 (EEO-1) with the
appropriate Federal Agency within thirty (30) days after either the signing
of this instrument, or the award of the contract or purchase order, as the
case may be (unless such a report has been filed in the last twelve (12)
months), and will continue to otherwise comply with and file such reports
annually as may be required under Executive Order 11246, as amended, and
the regulations in 41 CFR 60-1.40 and 60-2.
B. Certify to the maintenance of a written and signed Affirmative Action Plan
as specified in Section 60-1.40 of Rules and Regulations, Office of Federal
Contract Compliance (EEO), Department of Labor, for each of its
establishments, and certifies further the requirement of a similar
certification from each of its nonexempt Contractors, and if no such
Affirmative Action Plan is maintained, contractor agrees to develop and
maintain a written Affirmative Action Compliance Program within 120 days
for EACH of its facilities unless at such time it is not required by law or
regulation to develop such a program.
EXHIBIT D
Quality Addendum to Basic Order Agreement
between
DIGITAL EQUIPMENT CORPORATION
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
(Buyer)
and
OVERLAND DATA, INC.
0000 Xxxxxx Xxx.
San Diego, California 92123-1599
(Seller)
[*]
* CONFIDENTIAL TREATMENT REQUESTED
33. ENVIRONMENTAL REQUIREMENTS
Packaging Materials - Seller certifies that all packaging materials and
packaging components supplied to Buyer under this Agreement, including those
supplied in connection with any materials or goods, shall meet the following
standard: The sum of the concentration levels of lead, mercury, haxavalent
chromium and cadmium shall not exceed 100 parts per million (ppm) by weight.
34. GENERAL
IN WITNESS WHEROF, the authorized representatives of the parties have executed
this Agreement under seal as of the date (s) set forth below
MODIFICATION TO BASIC ORDER AGREEMENT
DIGITAL BOA#: 16529, AMENDMENT ONE Effective: 04/01/94
1. This supplement shall govern modifications in accordance with the terms of
the original Agreement.
2. All terms will remain as in the original Agreement unless specifically
identified by this or subsequent modifications.
3. The following modifications are being made to the Agreement as shown below:
--------------------------------------------------------------------------------
Basic order agreement number 16529, dated 07/01/93 between Digital Equipment
Corporation and its subsidiaries, worldwide (Buyer) and Overland Data Inc.
(Seller) is hereby amended as follows:
EXHIBIT A, MATERIAL PRODUCT AND PRICE SCHEDULE replace page one with the
attached revision which updates part numbers, pricing and extends Exhibit A,
pricing through June 30, 1995.
SECTION 18, NOTICES update contract to reflect new supplier address of 0000
Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx, xxx 00000.
The authorized representatives of the parties have executed this agreement as
set forth below:
OVERLAND DATA INCORPORATED DIGITAL EQUIPMENT CORPORATION
/s/ Xxxxx XxXxxxxxx 3/28/94 /s/ Xxx Xxxxxxx 3/22/94
----------------------------------- ------------------------------
Xxxxx XxXxxxxx Date Xxx Xxxxxxx Date
President and CEO Purchasing Specialist
EXHIBIT A
MATERIAL PRODUCT AND PRICE SCHEDULE
[*]
Pricing is effective through June 30, 1995.
* CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT E
Product Specifications
[*]
* Confidential Treatment Requested
MODIFICATION TO BASIC ORDER AGREEMENT
DIGITAL BOA#: 16529, AMENDMENT TWO Effective: 06/24/94
1. This supplement shall govern modifications in accordance with the terms of
the original Agreement.
2. All terms will remain as in the original Agreement unless specifically
identified by this or subsequent modifications.
3. The following modifications are being made to the Agreement as shown below:
--------------------------------------------------------------------------------
Basic order agreement number 16529, dated 07/01/93 between Digital Equipment
Corporation and its subsidiaries, worldwide (Buyer) and Overland Data Inc.
(Seller) is hereby amended as follows:
EXHIBIT A, MATERIAL PRODUCT AND PRICE SCHEDULE replace page one with the
attached revision which adds differential TKZ60 part numbers to Exhibit A,
Material Product and Price Schedule which is effective through June 30, 1995.
The differential part numbers are more fully described in Exhibit A and may be
purchased by Buyer subject to the provisions of the Agreement.
EXHIBIT E, PRODUCT SPECIFICATIONS add attached REV D, TKZ60 cartridge tape drive
specification which contains the new IDRC variations.
The authorized representatives of the parties have executed this agreement as
set forth below:
OVERLAND DATA INCORPORATED DIGITAL EQUIPMENT CORPORATION
/s/ Xxxxx XxXxxxxxx 6/27/94 /s/ Xxx Xxxxxxx 06/24/94
----------------------------------- ------------------------------
Xxxxx XxXxxxxx Date Xxx Xxxxxxx Date
President and CEO Purchasing Specialist
EXHIBIT A
MATERIAL PRODUCT AND PRICE SCHEDULE
[*]
Pricing is effective through June 30, 1995.
* Confidential Treatment Requested
AMENDMENT 03, CONTRACT 16529, OVERLAND DATA INC. EFFECTIVE 03/31/95
1. This supplement shall govern modifications in accordance with the terms of
the original Agreement.
2. All terms will remain as in the original Agreement unless specifically
identified by this or subsequent modifications.
3. The following modifications are being made to the Agreement as shown below:
--------------------------------------------------------------------------------
Basic order agreement number 16529, dated 07/01/93 between Digital Equipment
Corporation and its subsidiaries, worldwide (Buyer) and Overland Data Inc.
(Seller) is hereby amended as follows:
EXHIBIT A, MATERIAL PRODUCT AND PRICE SCHEDULE replace page one with the
attached revision which adds firmware, rackmount, 18 and 36 track part numbers
to Exhibit A, Material Product and Price Schedule which is effective through
June 30, 1996. The part numbers are more fully described in Exhibit A and may
be purchased by Buyer subject to the provisions of the Agreement.
The authorized representatives of the parties have executed this agreement as of
the dates as set forth below:
OVERLAND DATA INCORPORATED DIGITAL EQUIPMENT CORPORATION
/s/ Xxxxx XxXxxxxxx 4/4/95 /s/ Xxx Xxxxxxx 03/27/95
----------------------------------- ------------------------------
Xxxxx XxXxxxxxx Date Xxx Xxxxxxx Date
President and CEO Purchasing Specialist
EXHIBIT A
MATERIAL PRODUCT AND PRICE SCHEDULE
[*]
Pricing is effective through June 30, 1996.
* Confidential Treatment Requested
AMENDMENT 04, CONTRACT 16529, OVERLAND DATA INC, EFFECTIVE 11/10/95
1. This supplement shall govern modifications in accordance with the terms of
the original Agreement.
2. All terms will remain as in the original Agreement unless specifically
identified by this or subsequent modifications.
3. The following modifications are being made to the Agreement as shown below:
Basic Order Agreement Number 16529, dated 07/01/93 between Digital Equipment
Corporation and its subsidiaries, worldwide (Buyer) and Overland Data Inc.
(Seller) is hereby amended as follows:
Exhibit A, MATERIAL PRODUCT AND PRICE SCHEDULE replace page one with the
attached revision which adds firmware, rackmount, 18 and 36 track part numbers
to Exhibit A, Material Product and Price Schedule which is effective through
June 30, 1996. The part numbers are more fully described in Exhibit A and may be
purchased by Buyer subject to the provisions of the Agreement.
The authorized representatives of the parties have executed this agreement as of
the dates as set forth below:
OVERLAND DATA INCORPORATED DIGITAL EQUIPMENT CORPORATION
/s/ Xxxxx XxXxxxxxx 11/10/95 /s/ Xxx Xxxxxxx 11/10/95
------------------------------ -------------------------------
Xxxxx XxXxxxxxx Date Xxx Xxxxxxx Date
President and CEO Purchasing Specialist
EXHIBIT A
MATERIAL PRODUCT AND PRICE SCHEDULE
AMENDMENT 04, CONTRACT 16529, OVERLAND DATA INC, EFFECTIVE 11/10/95
[CONFIDENTIAL TREATMENT REQUESTED]
[*]
Pricing is effective through June 30, 1996.
* Confidential Treatment Requested
* * * COMPANY CONFIDENTIAL * * *
AMENDMENT 05, CONTRACT 16529, OVERLAND DATA INC
1. This supplement shall govern modifications in accordance with the terms of
the original Agreement.
2. All terms will remain as in the original Agreement unless specifically
identified by this or subsequent modifications.
3. The following modifications are being made to the Agreement as shown below:
--------------------------------------------------------------------------------
Basic order agreement number 16529, dated 07/01/93 between Digital Equipment
Corporation and its subsidiaries, worldwide (Buyer) and Overland Data Inc.
(Seller) is hereby amended as follows:
EXHIBIT A, MATERIAL PRODUCT AND PRICE SCHEDULE replace page one with the
attached revision which adds TKZ63 and TKZ64 part numbers to Exhibit A, Material
Product and Price Schedule which is effective through June 30, 1997. The part
numbers are more fully described in Exhibit A and may be purchased by Buyer
subject to the provisions of the Agreement.
The authorized representatives of the parties have executed this agreement as
set forth below:
OVERLAND DATA INCORPORATED DIGITAL EQUIPMENT CORPORATION
/s/ Xxxxx XxXxxxxxx 12/6/96 /s/ Xxx Xxxxxxx 11/27/96
----------------------------------- ------------------------------
Xxxxx XxXxxxxxx Date Xxx Xxxxxxx Date
President and CEO Purchasing Specialist
* * * DIGITAL CONFIDENTIAL * * *
* * * COMPANY CONFIDENTIAL * * *
AMENDMENT 05, CONTRACT 16529, OVERLAND DATA INC
EXHIBIT A
MATERIAL PRODUCT AND PRICE SCHEDULE
[*]
Pricing is effective through June 30, 1997.
* * * COMPANY CONFIDENTIAL * * *
* Confidential Treatment Requested
