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EXHIBIT 10.13
SANMINA CANADA ULC
AGREEMENT FOR
ELECTRONIC MANUFACTURING SERVICES
THIS AGREEMENT made as of this 3rd day of September, 0000 xxxxxxx XXXXXXX XXXXXX
ULC, having offices at Calgary, Alberta, Canada ("Sanmina") and NOVATEL WIRELESS
INC., having offices at Suite 110, 0000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxx, X.X.X. 00000 ("Customer").
FOR AND IN CONSIDERATION of the mutual covenants of the parties hereto, the
parties hereby agree as follows:
ARTICLE 1
TERM
1.1 This Agreement shall be in effect for a term of twenty-four (24) months,
commencing upon the date of this Agreement (the "Term"). Unless the parties
agree in writing to extend such Term for an additional period prior to the
termination of the Term, this Agreement shall terminate upon the expiry of the
said Term.
ARTICLE 2
SCOPE OF SERVICES
2.1 Customer hereby retains Sanmina and Sanmina hereby agrees to provide to
Customer during the Term manufacturing and delivery services in respect of
electronic products or assemblies, as more particularly identified in Exhibit
"A" hereto (collectively, the "Products"). Sanmina and Customer shall mutually
agree in writing upon the delivery schedule(s) applicable to the Products.
2.2 Sanmina shall purchase all components necessary for the manufacture by it of
the Products in accordance with a vendor list approved by Sanmina and Customer
(the "AVL"), which approval shall occur as of or as soon as practicable
following the date of execution hereof. In the event Sanmina cannot purchase a
component from a vendor on the AVL for any reason, Sanmina may purchase such
components from an alternate vendor, subject to the prior written consent of
Customer, which consent shall not be unduly withheld or delayed.
ARTICLE 3
PLANNING AND PROCUREMENT PROCESS
3.1 Upon the date of execution of this Agreement and thereafter on the first
business day of each month of the Term, except for the last three (3) months of
the Term, Customer shall provide Sanmina with firm purchase orders covering a
minimum period of three (3) months (each, a "Purchase Order").
3.2 Upon the dates on which Customer provides Sanmina with the Purchase Orders
pursuant to Section 3.1, Customer also shall deliver to Sanmina a forecast
(each, a "Forecast") covering the nine (9) month period immediately following
the applicable three (3)month Purchase Order
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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period. It is understood that each Forecast is delivered by Customer to Sanmina
for information purposes only and cannot be relied upon by Sanmina, save and
except in respect of Sanmina's procurement activities in order to fulfill its
obligations herein and, in such respect, Customer's liability in respect of each
Forecast is limited in accordance with Article 4 below.
3.3 Upon the basis of the Purchase Orders and Forecasts referred to in Sections
3.1 and 3.2, Sanmina shall develop and deliver to Customer a master production
schedule ("MPS") for a *** period as follows:
(a) the MPS will define the master plan upon which Sanmina will
base its procurement activities, internal capacity projections
and commitments to Customer hereunder;
(b) Sanmina will use the Purchase Orders referred to in Section
3.1 to generate the *** of the MPS; and
(c) Sanmina will use the Forecasts referred to in Section 3.2 to
generate the following *** of the MPS.
It is understood and agreed that the MPS shall be generated by Sanmina for
information purposes only and that neither party shall rely upon the MPS, save
and except in respect of Sanmina's procurement activities in order to fulfill
its obligations herein and, in such respect, Sanmina's liability in respect of
each MPS shall be limited in accordance with Article 4 below.
3.4 Sanmina will develop the MPS through industry-standard MRP software that
will convert the MPS reflecting Customer's Purchase Orders and Forecasts into
requirements for the components to develop the necessary Products. In so
developing the MPS, Sanmina will allow for the following times required to
develop the Products:
(a) In-Circuit Testing/Functional Testing - ***;
(b) Assembly- ***;
(c) Kitting - ***;
(d) Material Handling- ***; and
(e) Sanmina shall plan and schedule for materials to be at its
facilities *** business days before the Products are due to be
delivered to Customer in the event no testing is required, and
*** business days before the Products are due to Customer in
the event testing is required.
3.5 Sanmina will place orders to suppliers of materials and components within a
reasonable period prior to the anticipated date that the same are needed and in
accordance with the provisions of Section 3.4. The actual date of placement by
it of an order by Sanmina will depend upon the lead time that Sanmina reasonably
determines to be necessary from time to time.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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3.6 Through its "MRP System", Sanmina will issue an instruction ("MRP Signal")
to its procurement department to purchase or procure a component approximately
seven (7) days before it places an order with materials suppliers in accordance
with Section 3.5.
3.7 When Sanmina places an order with materials suppliers pursuant to Section
3.5, it will order components in various quantities (defined in
periods-worth-of-supply) as defined by the "ABC Classification" for each
component (the "Classification"). The Classification, together with the expected
distribution or characteristics of various classes of components, and the
applicable periods-worth-of-supply ("Periods-of-Supply") that will be bought for
each class of component is shown on the table below:
ABC Classifications, Descriptions and Periods-of-Supply
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Expected Percentage Expected Percentage of Total Periods Worth of Supply to be
Part Class of Total Components Value (of Gross Requirements) Bought with Each Order
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A *** *** ***
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B *** *** ***
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C *** *** ***
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3.8 In addition to ordering components for various Periods-of-Supply, Sanmina
will order components according to various minimum-buy quantities, tape and reel
quantities, and multiples of packaging quantities.
3.9 The costs of the components Sanmina purchases or orders in order to fulfill
each Purchase Order and the related Forecast as set forth in Article 4 and any
associated expenses related to such purchasing, ordering, manufacturing (labor
and overhead), shipping, storing and eliminating by Sanmina of any such
components, plus a cost-of-money xxxx-up equal to *** to be applied for the
duration of Sanmina ownership of the materials, in favor of Sanmina, shall
constitute the aggregate consideration payable by Customer to Sanmina in respect
of the services rendered by Sanmina pursuant hereto ("Total Liability").
3.10 Notwithstanding any provision hereof including, without limitation, Section
3.9, Customer shall be liable for any and all taxes, customs duties,
withholding, assessments or levies arising from time to time or at any time in
respect of the services provided by Sanmina to Customer pursuant to and in
respect of the transfer, sale, delivery and use of the Products, save and except
that Sanmina shall be responsible for any and all taxes arising on or measured
by its net income or gain.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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ARTICLE 4
LIABILITIES FOR COMPONENTS
4.1 In the event of cancellation or decrease in a Purchase Order pursuant to
Section 5.2, Customer's liability for costs of components that Sanmina has
procured pursuant hereto, up to the limit of Customer's forecast, is as follows:
(a) for costs of components that Sanmina has ordered pursuant
hereto and cannot cancel prior to receipt (including
components that may not be cancellable by virtue of having
insufficient time between the MRP Signal to cancel and the
expected or real receipt date by Sanmina);
(b) for Sanmina's costs of components that Sanmina has ordered
pursuant hereto and cannot return to the suppliers where the
value of the parts exceeds USD. *** in total, and where
Sanmina has made reasonable efforts to return the components;
and
(c) for Sanmina's costs of components that are in aggregate worth
less than USD. *** in total and where Sanmina is not required
to attempt to return same to the suppliers.
4.2 In the event Sanmina is able to return components by paying re-stocking fees
or other fees, ***.
4.3 With Customer's prior written consent (not to be unreasonably withheld or
delayed), Sanmina shall purchase tools that it may require in order to fulfill
the Purchase Orders and Forecasts. The costs of same shall be borne by Customer.
Title in and to all such tooling purchased by Sanmina shall vest in Customer,
and Sanmina shall deliver to Customer possession of such tooling in the same
condition as when received by Sanmina (ordinary wear and tear excepted) upon the
earlier of the completion of the relevant Purchase Order or the termination of
this Agreement.
4.4 Customer's liability for the costs of components referred to in this Article
4 will be at the ***.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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ARTICLE 5
RESCHEDULING
5.1 Customer at any time may reschedule the delivery dates of any of the
Products, subject to the following:
WRITTEN NOTICE BY CUSTOMER PERCENTAGE OF ORIGINAL QUANTITY
TO SANMINA PRIOR TO ORIGINAL OF PRODUCTS THAT CAN BE RESCHEDULED
DELIVERY DATE FOR DELIVERY
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*** ***
*** ***
*** ***
*** ***
As an example, if Customer notifies Sanmina in writing between thirty-one (31)
and sixty (60) days prior to the scheduled delivery date of the Products, a
maximum of *** of the total amount of the Products to be delivered on such date
may be rescheduled for delivery by Sanmina.
5.2 In the event Customer shall require decreased quantities of Products from
those originally scheduled for delivery at a specific date, Sanmina and
Customer, each acting reasonably and in good faith, shall agree upon a
rescheduled delivery date for the decreased quantities of Products within
forth-five (45) days of the original delivery date.
5.3 In the event Customer shall require an increase of quantities of Products
from those originally scheduled for delivery at a specific date, then Customer
shall notify Sanmina in writing at least thirty (30) days prior to the original
scheduled delivery date and Sanmina, on a reasonable commercial efforts basis,
will attempt to accommodate such increase.
5.4 If the Customer changes the delivery dates of any Product by a period
exceeding ninety (90) days in the aggregate, and if such change results in
additional expenses to Sanmina to store such Products or to acquire additional
components, such additional expenses shall be borne by Customer.
ARTICLE 6
REVISIONS
6.1 In the event Customer requests an engineering change to a Product, which
change shall be requested within a reasonable period prior to scheduled
delivery, Sanmina shall notify Customer of any impact on the costs and/or
scheduled delivery of such Products within five (5) business days of the receipt
of Customer's request. Unless Customer consents to such revisions of costs
and/or delivery by notice in writing within two (2) business days of receipt of
Sanmina's notification, the requested engineering change shall be deemed
cancelled. Any increases in the costs of Products resulting from any such
engineering change order ("ECO") shall be borne by
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Customer. Any decreases in the costs of Products resulting from any such
engineering change order shall result in a commensurate price reduction by
Sanmina. The costs of components made obsolete or components purchased by
Sanmina in excess as a result of any such ECO shall be borne by Customer. A USD.
*** administrative fee per ECO also shall be borne by *** to partially cover
***.
ARTICLE 7
CANCELLATIONS
7.1 Customer may cancel any Purchase Order by notifying Sanmina in writing at
least ninety (90) days prior to the scheduled delivery date. Within thirty (30)
days of such cancellation, Sanmina shall provide Customer with a written
calculation of Customer's total costs related to such cancelled order. Customer
shall pay such costs to Sanmina within thirty (30) days of the receipt of such
calculation. Upon receipt of payment for same, Sanmina shall deliver to
Customer, at Customer's expense, any components purchased but unused as a result
of such cancellation or shall scrap such components, at the direction of the
Customer as specified in the cancellation notice.
ARTICLE 8
PRICING
8.1 The prices for the Products manufactured and delivered by Sanmina pursuant
hereto are set forth in Exhibit "A" hereto and shall remain fixed for the Term,
with the following exceptions:
(a) in respect of an ECO, the provisions of Section 6.1 shall
apply;
(b) in respect of any rescheduling of delivery, the terms of
Article 5 shall apply; and
(c) material variations on the market prices of components shall
be applied to all Products' prices.
8.2 Quarterly Cost Reviews
Sanmina and Customer shall meet quarterly, starting three (3) months after the
date of this Agreement, to review the materials and process costs of the
Products. Where differences greater than 0.5 percent of the Product price shown
in Exhibit A are achievable, Sanmina and Customer agree to adjust the price
effective on the date that the changes are (or will be) implemented.
ARTICLE 9
DELIVERY
9.1
(a) Sanmina will deliver products on time, defined as shipment
according to the delivery dates Sanmina commits; or if Sanmina
has not made a specific commitment, to the date(s) identified
on the Purchase Order within a window of five (5) business
days early and two (2) business days late.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(b) Delivery of all Products by Sanmina to Customer shall be
F.O.B. Sanmina's plant located at the address specified in
Exhibit "A" ("Delivery Point"), at which location risk of loss
and title to the Products shall be transferred by Sanmina to
Customer. Products held or stored by Sanmina at the Delivery
Point or any other location after the scheduled or rescheduled
delivery date of such Product, shall be held or stored at the
sole risk and expense of Customer.
(c) Unless otherwise specified by Customer, Sanmina shall
transport the Products to Customer by such mode or modes of
transportation as Sanmina reasonably determines, to Customer's
address or an address specified in writing by Customer. All
packaging, freight, insurance and other shipping expenses from
the Delivery Point shall be borne by Customer. When special
packaging is requested or, in the reasonable opinion of
Sanmina, is required, the additional costs related to such
special packaging shall also be borne by Customer.
ARTICLE 10
PAYMENT AND INVOICING
10.1 Payment terms will be net thirty (30) days from each invoice date. Sanmina
will provide Customer with a credit limit to be determined by Sanmina, acting
reasonably, on or by the date of execution hereof. In the event Customer exceeds
such credit limit or amounts remain due and owing on any invoices for more than
sixty (60) days, Sanmina may stop shipments of Products to Customer until
Customer makes full payment upon such invoices. Sanmina further may reduce the
credit limit upon written notice to the Customer. Any and all overdue payments
over thirty (30) days shall bear interest at the rate of *** until paid in full.
ARTICLE 11
WARRANTY
11.1 Sanmina expressly warrants that each Product (excluding components
purchased from third-party vendors ("Vendor Components")) shall be free from any
defects in workmanship for a period of one (1) year from the date of manufacture
of such Product by Sanmina. Warranties on any Vendor Components are limited to
the warranties provided by the component manufacturers or Vendors. Sanmina will
use reasonable commercial efforts to make all warranties of its parts suppliers
assignable to the Customer. Sanmina shall pass on any unexpired assignable
warranties for any such Vendor Components to Customer until the expiration of
such warranties or up to a maximum of one (1) year from the date of manufacture
of the Product by Sanmina, whichever period is lesser. As Customer's sole remedy
under this Section 11.1 warranty, Sanmina will, at no charge, rework, repair and
retest any Product returned to Sanmina and found to contain such defects in
workmanship caused by Sanmina. Warranty coverage does not include failures due
to Customer design errors, improper or defective parts or materials used by
Customer, Customer-requested changes to the parts or materials, damages caused
by Customer's misuse, unauthorized repair or negligence. Sanmina does not assume
any liability for expendable items such as lamps and fuses. Sanmina reserves the
right to inspect the Products and verify that they are defective and, in the
event Sanmina, acting reasonably, determines they are not so defective, costs of
any inspection, testing or transportation of Products to and from Sanmina's
facilities shall be borne by Customer. Sanmina's total liability under this
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Article 11 shall be limited to the price of the Product supplied under this
Agreement, as given in Exhibit A and amendments thereto.
The warranty afforded under this Article 11 also is limited to items,
parts and defects that are within the capability of existing test equipment and
Sanmina's programs and processes.
The performance of any repair or replacement by Sanmina does not extend
the warranty period for any Products beyond the period applicable to the Product
as originally delivered pursuant hereto.
EXCEPT FOR THE ABOVE EXPRESS WARRANTIES CONTAINED IN ARTICLE 11 AND
ARTICLE 13, SANMINA EXPRESSLY DISCLAIMS AND MAKES NO WARRANTIES, GUARANTEES OR
REPRESENTATIONS OF ANY KIND WHATSOEVER WITH RESPECT TO THE CONDITION OF THE
PRODUCTS OR ANY PARTS OR COMPONENTS THEREOF, EITHER EXPRESS OR IMPLIED, ARISING
BY LAW, IN CONTRACT, TORT, EQUITY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY
OBLIGATION OR LIABILITY OF SANMINA WITH RESPECT TO ANY WARRANTY AS TO FITNESS
FOR USE, CONDITION, SERVICEABILITY, SUITABILITY, VALUE, DESIGN, OPERATION OR
MERCHANTABILITY, AS THE CASE MAY BE, ANY IMPLIED WARRANTY ARISING BY STATUTE OR
COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
ARTICLE 12
GENERAL INDEMNITY
12.1 Customer hereby indemnifies and saves harmless Sanmina, its parent and
affiliate corporations and their respective directors, officers, employees,
agents and servants from and against any and all actions, claims, losses, costs,
liabilities or expenses (including court costs and the fees and costs of
attorneys and other professionals) ("Claims") to the extent arising out of, or
in connection with, in whole or in part, (A) infringements of any patents,
trademarks, copyrights or other intellectual property by Customer, or (B) any
negligence or willful misconduct in respect of the Products by Customer, its
employees, agents and subcontractors, including but not limited to any such act
or omission that contributes to: (i) any bodily injury, sickness, disease or
death; (ii) any injury or destruction to tangible or intangible property of the
injured party or any loss of use resulting therefrom; or (iii) any violation of
any statute, ordinance or regulation.
12.2 Sanmina hereby indemnifies and saves harmless Customer, its parent and
affiliate corporations and their respective directors, officers, employees,
agents and servants from and against any and all actions, claims, losses, costs,
liabilities or expenses (including court costs and the fees and costs of
attorneys and other professionals) ("Claims") to the extent arising out of, or
in connection with, in whole or in part, (A) infringements of any patents,
trademarks, copyrights or other intellectual property of Sanmina, or (B) any
negligence or willful misconduct in the manufacture of the Products by Sanmina,
its employees, agents and subcontractors, including but not limited to any such
act or omission that is the sole cause of: (i) bodily injury, sickness, disease
or death; (ii) any injury or destruction to tangible or intangible property of
the injured party or any loss of use resulting therefrom; or (iii) any violation
of any statute, ordinance or regulation.
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ARTICLE 13
QUALITY, INSPECTION AND REPORTING
13.1 Customer has the right at all reasonable times, upon reasonable advance
written notice, to visit Sanmina's facilities and the Delivery Location to
inspect the work being performed on the Products pursuant hereto, provided such
inspection shall not unduly affect Sanmina's operations and provided Customer
and its representatives shall be on Sanmina's facilities and the Delivery
Location at Customer's sole risk. Inspection of the work by Customer shall not
relieve Sanmina of any of its obligations under the Agreement or the Purchase
Orders. Sanmina shall provide Customer with all mutually agreed upon quality
reports at agreed upon intervals. Sanmina reserves the right to restrict
Customer's access to its facilities or any area to protect confidential
information of Sanmina or its other customers or third parties.
13.2 If Customer requests inspection of the Products prior to the delivery of
such Products as a condition of acceptance of such Products, Customer shall
inspect the Products within forty-eight (48) hours of transmission of written
notice by facsimile from Sanmina informing Customer that the Products are ready
to be shipped. If Customer does not inspect the Products within such forty-eight
(48) hour period, Customer shall be deemed to have waived its rights to inspect
the Products as a condition of acceptance of such Products.
13.3 Customer and Sanmina, at Customer's cost, will implement a joint quality
improvement program that will develop and implement continuous quality
improvement processes with respect to the Products.
13.4 Sanmina shall manufacture the Customer's products in accordance to an
industry workmanship standard, agreed to by both parties. Unless otherwise
specified by the Customer, Sanmina will manufacture the Customer's products as
per ANSI/IPC-A-610, Revision B "Acceptability Of Electronic Assemblies", Class 2
"Dedicated Service Electronic Products".
13.5 If product manufactured by Sanmina is tested using equipment and fixtures
supplied by the Customer, the Customer is responsible to ensure that the
equipment and fixtures have been calibrated and maintained at a regular interval
as recommended by the manufacturer, and that the equipment and fixtures are in
proper operating condition. Calibration of equipment is to be performed by
qualified, licensed individuals.
13.6 Sanmina is responsible for assuring that Products are delivered to Customer
only after Products successfully complete the specified inspection and test
processes. If the product is being tested using equipment, fixtures, and/or
software provided by the Customer, Sanmina is not responsible for product
functionality beyond that assured by the Customer provided test processes.
Product testing is to be performed in accordance to product specifications and
test procedures, agreed to by both parties.
13.7 Sanmina is not responsible for workmanship quality if a subassembly of the
finished product is being manufactured by another EMS supplier that does not
conform to the workmanship standard specified in Section 13.4.
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ARTICLE 14
TERMINATION
14.1 If either party fails to meet one or more of the terms and conditions as
stated in this Agreement or addenda, Sanmina and Customer agree to negotiate in
good faith to resolve such default. If the defaulting party fails to cure such
default or submit an acceptable written plan to resolve such default within
thirty (30) days following notice of default, the nondefaulting party shall have
the right to terminate this Agreement by furnishing the defaulting party within
thirty (30) days written notice of termination.
This Agreement shall immediately terminate should either party; (i) become
insolvent; (ii) enter into or file a petition, arraignment or proceeding seeking
an order for relief under the bankruptcy laws of its respective jurisdiction;
(iii) enter into a receivership of any of its assets or; (iv) enter into a
dissolution of liquidation of its assets or an assignment for the benefit of its
creditors.
14.2 Upon any such early termination caused by the Customer, Sanmina shall
provide Customer with an invoice of the Customer's Total Liabilities as of the
effective date of termination. In addition, the Customer shall be liable for all
work-in-progress and any outstanding charges in respect of the Products, and
shall receive all related stock, work-in-progress, and finished Products. Upon
termination, Customer shall pay all invoiced charges net thirty (30) days. Upon
any such early termination caused by Sanmina, Customer shall have the right to
receive all related stock, work-in-progress, and finished Products at prices
given in Exhibit A and amendments thereto, but Customer's liability shall be
limited to paying for finished Products it receives, at prices given in Exhibit
A and amendments thereto.
ARTICLE 15
CONFIDENTIALITY
Sanmina and Customer recognize that, for the term of this Agreement, it will be
necessary to disclose to each other certain confidential information, and that
each has a responsibility to protect such confidential information.
"Confidential Information" shall mean the confidential and proprietary
information related to the design, manufacture, application, know-how,
experimentation, research and development, components, hardware and software,
contents, workings, data, installation and implementation of the systems or
products of Customer and the business, manufacturing, inspection, and test
processes of Sanmina. It is understood that Confidential Information shall not
include:
(a) information which was in the public domain at the time of the
disclosure, or
(b) information which, though originally Confidential Information,
subsequently becomes part of the public knowledge or literature through
no fault of the receiving party, as of the date of its becoming part of
the public knowledge or literature, or
(c) information independently developed by employees or agents of the
receiving party who the receiving party can show had no access to
Confidential Information received under this Agreement, or
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(d) is rightfully received from a third party without restriction on
disclosure and without breach of this Agreement, or
(e) is disclosed pursuant to a requirement of a governmental agency or the
disclosure of which is required by law, or
(f) is approved for release by written authorization of the disclosure
party.
Sanmina and Customer mutually agree to hold each other's Confidential
Information in strict confidence and not to disclose such Confidential
Information to any third parties, nor use any Confidential Information for other
than the purposes of carrying out their obligations under this Agreement.
Sanmina and Customer may disclose each other's Confidential Information to their
respective employees, but only to the extent necessary to carry out the purposes
for which the Confidential Information was disclosed, and Sanmina and Customer
agree to instruct all such employees to not disclose such Confidential
Information to third parties without the prior written permission of the parties
disclosing such Confidential Information.
Sanmina and Customer acknowledge that all Confidential Information shall be
owned solely by the disclosing party and that the unauthorized disclosure or use
of such Confidential Information could cause irreparable harm and significant
injury which may be difficult to ascertain. Accordingly, Sanmina and Customer
agree that the disclosing party shall have the right to seek an immediate
injunction enjoining any breach of this Article.
Upon the written request of either party, the other party shall return to the
disclosing party proof of destruction, or provide all data, plans, drawings,
maskworks, computer files, or tangible items representing the other party's
Confidential information and all copies thereof.
Sanmina and Customer recognize and agree that nothing in this Agreement shall be
construed as granting any rights, license or otherwise, to any Confidential
Information disclosed pursuant to this Agreement.
ARTICLE 16
NON-COMPETITION
During the Term of this Agreement, and in perpetuity thereafter, Sanmina shall
not have the right to manufacture, anywhere in the world, products based on
Customer designs exclusively owned by the Customer and/or other Customer
intellectual property, other than the manufacture of products pursuant to this
Agreement or based on Customer designs and/or other Customer intellectual
property in respect of which title to or the right to use has been legally
acquired by Sanmina or by a third party which engages Sanmina for the purposes
of manufacturing the products.
ARTICLE 17
TIMELY DISCLOSURE
Sanmina agrees to promptly inform Customer if it becomes aware of any material
threat to the uninterrupted production and delivery of the Products that may
develop from time to time from
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any cause whatsoever, regardless of whether the cause is attributable to events
internal or external to Sanmina.
ARTICLE 18
MISCELLANEOUS
18.1 Governing Law. This Agreement will be governed by and interpreted under the
laws of the Province of Alberta and the federal laws of Canada applicable
thereto.
18.2 Jurisdiction. For any dispute arising out of this Agreement, the parties
consent and attorn to the non-exclusive jurisdiction of the courts of Alberta.
18.3 Entire Agreement; Enforcement of Rights. This Agreement, including Exhibit
A Pricing, Exhibit B Costed Xxxx of Materials, sets forth the entire agreement
and understanding of the parties relating to the subject matter herein and
merges all prior discussions and arrangements between them. No modification of
or amendment of this Agreement, nor any waiver of any rights under this
Agreement, will be effective unless in writing and duly executed by the parties.
The failure by either party to enforce any rights thereunder will not be
construed as a waiver of any rights of such party.
18.4 Assignment. Neither party shall assign its rights and obligations herein.
The rights and liabilities of the parties hereto will bind and inure to the
benefit of their respective successors.
18.5 Notices. Any required notices thereunder will be given in writing to the
addresses set forth below, or at such other address as either party may
substitute by written notice to the other in the manner contemplated herein, and
will be deemed to be received when hand-delivered or delivered by facsimile:
If to Sanmina:
Sanmina Canada ULC
0000 - 0xx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0.
If to Customer:
Novatel Wireless .Inc. or Novatel Wireless Technologies Ltd.
Xxxxx 000, 0000 Xxxxx Xxxxxx Xxxxx Xxx. 000, 6715 - 8th Street, N.E.
San Diego, CA Calgary, Alberta
X.X.X. 00000 Xxxxxx X0X 0X0
18.6 Force Majeure. Neither party will be liable for any delay or failure in
performance thereunder if such delay or failure is caused by an event beyond
such party's reasonable control including, without limitation, acts or failures
to act of the other party, strikes or labour disputes, component shortages,
unavailability of transportation, floods, fires, governmental requirements and
acts of God (each, a "Force Majeure Event"). In the event of a threatened or
actual non-performance as a result of the above causes, the non-performing party
will exercise
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commercially reasonable efforts to avoid and cure such non-performance. Lack of
funds shall not constitute a Force Majeure Event. Should a Force Majeure Event
prevent a party's performance thereunder for a period in excess of ninety (90)
days, then the other party may elect to terminate this Agreement by written
notice.
18.7 Counterparts. This Agreement may be executed in two or more counterparts,
each of which will be deemed an original and all of which together will
constitute one and the same instrument.
SANMINA CANADA ULC
by: /s/
-------------------------------------
its:
------------------------------------
NOVATEL WIRELESS INC.
by: /s/
-------------------------------------
its:
------------------------------------
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EXHIBIT A
DELIVERY POINT:
Sanmina Canada ULC
0000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
PRODUCT PRICING:
SELLING PRICE
PART NUMBER DESCRIPTION REVISION ($USD.)
----------- ----------- -------- -------------
01016446 CDPD MODEM MODULE NRM-6812SM ASSY 11 ***
***: ***
01016476 CDPD MODEM MODULE NRM-6812SM-M 5 ***
***: ***
649496001551 CDPD MODEM ASSEMBLY EXPEDITE TBD ***
Material ***
THE SELLING PRICE WILL BE REDUCED AS FOLLOWS WHEN THE CUSTOMER AND SANMINA
IMPLEMENT ALL OF THE FOLLOWING COST REDUCTION PROGRAMS FOR 649496001551:
(a) ***
(b) ***
(c) ***
(d) ***
(e) ***
(f) ***
When all above opportunities are completed the price is: ***
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
A-1
15
SELLING PRICE
PART NUMBER DESCRIPTION REVISION ($USD.)
----------- ----------- -------- -------------
649496001506 MINSTREL III-P2H 1 ***
Price based on material costs: ***
649496001513 MINSTREL III-P1H 1 ***
Price based on material costs: ***
THE SELLING PRICE WILL BE REDUCED AS FOLLOWS WHEN THE CUSTOMER AND SANMINA
IMPLEMENT ALL OF THE FOLLOWING COST REDUCTION PROGRAMS FOR 649496001506 AND
649496001513:
(a) ***
(b) ***
(c) ***
(d) ***
(e) ***
***
When all above opportunities are completed with the cost reductions
for P/N 649496001551, the price is: ***
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
