BASIC ORDER AGREEMENT
between
DIGITAL EQUIPMENT CORPORATION
and
AMCOM CORPORATION
for
SPARES, REPAIRS, EXPENDABLES, EXCHANGES
I. BASIC ORDER AGREEMENT
A. This Basic Order Agreement 22398 and all attachments (called "the
Agreement") is made by Digital Equipment Corporation ("Buyer") and
Amcom Corporation ("Seller"). Buyer's worldwide subsidiaries may
place Purchase Orders under this Agreement per Section - III A.
The Terms and Conditions herein exclusively govern the purchase
and sale of the Spare Parts, and/or Repair Parts, and/or
Expendable Parts, and/or Exchange Parts more fully described in
Attachment - A, and in applicable specifications, attached hereto
and incorporated herein by reference; ("Spares, and/or Repairs,
and/or Expendables, and/or Exchanges").
B. This Agreement does not specify a quantity of Spares, and/or
Repairs, and/or Expendables, and/or Exchanges to be procured by
Buyer, NOR DOES THIS AGREEMENT OBLIGATE BUYER TO PURCHASE ANY
Spares, and/or Repairs, and/or Expendables, and/or Exchanges. All
such quantities will be specified on Buyer's Purchase Orders as
defined in Section - III A, 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.
II. PURCHASE ORDERS
A. 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 Buyer's standard Purchase Order form.
Electronic Purchase Order shall mean only those Purchase Orders
transmitted electronically. 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. Each
Purchase Order will specify items such as: item description,
quantity, delivery schedule, destination, and total price of the
Purchase Order. Each Purchase Order issued under this Agreement
shall be made part of, and be incorporated into this Agreement,
and shall reference this Agreement number on the face of each
Purchase Order issued pursuant to this Agreement.
B. Buyer will order Spares, and/or Repairs, and/or Expendables,
and/or Exchanges by issuing telex, or facsimile, or telephonic
orders, or Purchase Orders. For Purchase Orders with a total value
in excess of five thousand dollars ($5,000), unless otherwise
requested by Seller, Buyer will issue either written or facsimile
confirming Purchase Order within ten (10) days after issuing such
telex, or facsimile, or telephonic orders. 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.
C. Buyer may, at it's option, order parts on a priority-one ("P-1")
basis by issuing facsimile, or electronic mail, or telephone
orders for P1 orders only, or by issuing a Purchase Order form
(collectively referred to as "P-1 Purchase Orders"). If
authorization is other than the Purchase Order form, Buyer will
use reasonable efforts to issue either written or facsimile
confirming Purchase Order(s) within ten (10) days after issuing
such telex, or facsimile, or telephonic orders. Seller shall
confirm and acknowledge such authorizations within two (2) days,
or within four (4) hours of receipt of P-1 Purchase Orders placed
via facsimile, or electronic mail, or telephonic means. 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.
D. If Buyer's Purchase Order specifies export after passage of title,
Seller shall furnish Buyer with all necessary Export/Import
documentation. If Buyer'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.
E. If Seller has more than one (1) geographic location which could
supply Spares, and/or Repairs, and/or Expendables, and/or
Exchanges Seller shall make such Spares, and/or Repairs, and/or
Expendables, and/or Exchanges 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/or Repairs, and/or Expendables, and/or Exchanges.
F. Electronic Purchase Orders
1. Buyer may order Spares, and/or Repairs, and/or Expendables,
and/or Exchanges 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 the 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.
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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 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.
III. PURCHASE PERIOD
A. The period during which Buyer may issue Purchase Orders for
Spares, and/or Repairs, and/or Expendables, and/or Exchanges under
this Agreement (Purchase Period) shall last from 3/4/96 and expire
on 6/28/97.
B. The Purchase Period may be extended by Buyer for one (1)
additional year upon no less than sixty (60) days written notice
to the Seller prior to the end of the current Purchase Period.
IV PRICING
A. Buyer may purchase all Spares, and/or Repairs, and/or Expendables,
and/or Exchanges listed in Sellers then current catalog. Such
Spares, and/or Repairs, and/or Expendables and/or Exchanges shall
be sold to Buyer at Sellers Cost (market price or less) plus
fifteen percent (15%).
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B. Price changes only apply to Purchase Orders issued on or after the
agreed upon effective date of change.
C. Prices include all charges such as packaging, packing, handling,
customs duties imposed before passage of title, and all taxes
except sales, use, and other such taxes imposed upon the sale or
transfer of Spares, and/or Repairs, and/or Expendables, and/or
Exchanges for which Buyer is solely responsible under applicable
law and for which Buyer is properly invoiced by Seller.
D. Seller 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 Spares, and/or Repairs, and/or Expendables, and/or
Exchanges taking into account the quantities and the Terms and
Conditions of this Agreement, and Seller will forthwith refund any
excess amounts paid by Buyer.
V DELIVERY/LEAD-TIME/FLEXIBILITY
A. Buyer's Purchase Orders shall state Seller's committed delivery
dates for Spares, and/or Repairs, and/or Expendables, and/or
Exchanges. TIME AND RATE OF DELIVERY ARE OF THE ESSENCE OF ALL
PURCHASES MADE UNDER THIS AGREEMENT. The minimum agreed period
between Buyer's issuance of a Purchase Order and the scheduled
delivery date ("Lead-time") shall be as stated in Attachment - A.
B. All deliveries shall be designated by Buyer as Collect, FOB
Origin, (INCOTERMS, 1980). Delivery date shall mean the date the
Spares, and/or Repairs, and/or Expendables, and/or Exchanges are
shipped Collect, FOB Origin, (INCOTERMS, 1980).
C. If Seller delivers Spares, and/or Repairs, and/or Expendables,
and/or Exchanges more than three (3) days in advance of the
scheduled delivery date, Buyer may either return such Spares,
and/or Repairs, and/or Expendables, and/or Exchanges at Seller's
expense for subsequent delivery on the original delivery date or
retain such Spares, and/or Repairs, and/or Expendables, and/or
Exchanges and postpone payment until it would have been due if
Seller had delivered Spares, and/or Repairs, and/or Expendables,
and/or Exchanges as scheduled. Without limiting any of Buyer's
rights and remedies in equity or at law, if Seller is late in
meeting the scheduled delivery date, Buyer may require that Seller
ship the Spares, and/or Repairs, and/or Expendables, and/or
Exchanges via premium means at Seller's expense, or may cancel the
order for such Spares, and/or Repairs, and/or Expendables, and/or
Exchanges without liability to Buyer.
D. Seller shall deliver the exact quantity of Spares, and/or Repairs,
and/or Expendables, and/or Exchanges 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
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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, Buyer may return
any excess Spares, and/or Repairs, and/or Expendables, and/or
Exchanges at Seller's expense.
E. Buyer may without cost or liability: reschedule delivery of any
Spares, and/or Repairs, and/or Expendables, and/or Exchanges,
and/or cancel Purchase Orders, or parts of them, by giving notice
as specified below, Reschedule and Cancellation Notice Period:
Reschedule Notice - 7 days prior to ship date
Cancellation Notice - 5 days prior to ship date
(all or partial)
Buyer may reschedule or cancel orally provided written
notification issued to Seller within five (5) days.
F. Buyer may require that shipments of Spares, and/or Repairs, and/or
Expendables, and/or Exchanges 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.
G. Spares Emergency Lead-time
1. Seller shall accept and process Purchase Order(s) for P-1
requirements twenty four (24) hours a day, three hundred
sixty-five (365) calendar days a 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. Invoices 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 of this Agreement or Buyer's Purchase
Order(s) as they relate to the required delivery date or
quantity of conforming Spares, and/or Repairs, and/or
Expendables, and/or Exchanges to be delivered, Seller shall
pay transportation charges for such order.
4. If requested item(s) is/are available, Seller shall have
requested Spares, and/or Repairs, and/or Expendables, and/or
Exchanges available for shipment/pickup within one (1) hour of
request, between the hours of:
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Standard Hours - 8:30 a.m. thru S:30 p.m. Eastern
- Monday thru Friday
Standby Hours - 5:31 p.m. thru 8:29 a.m. Eastern
Monday thru Friday
- 24 hour weekend pager coverage
- 24 hour holiday pager coverage
Emergency Order - call back within 1 hour of page
5. As required, Seller shall make Spares, and/or Repairs, and/or
Expendables, and/or Exchanges available through the following:
Drop Shipment - Seller shall drop ship Spares, and/or Repairs
and/or Expendables, and/or Exchanges to Buyers customer
site(s) and/or service delivery location(s). Buyer may at
times designate the carrier that best meets delivery
requirements, i.e.; the Seller shall have available, and
as necessary will utilize courier services for local
delivery, and/or pickup by Buyer.
Advance Exchange - Seller shall offer Advanced Exchange
capability for certain items as deemed Advance Exchange by
Buyer. Advance Exchange is defined as; Seller assigning a
Core Credit for defective Spares, and/or Repairs, and/or
Expendables prior to Seller's receipt of defective units
from Buyer. "Core Credit" is defined as the Sellers value
of the defective unit(s). "Advance Exchange Price" is
calculated as "Buyer Price" less "Core Credit".
Seller agrees to provide a weekly Outstanding Core Report,
of cores not returned within fourteen (14) days of the
Advance Exchange Purchase Order Date, to the Buyer. Buyer
shall return the core(s) within thirty (30) calendar days
of the respective Advance Exchange Purchase Order Date. If
Buyer fails to return the core(s) within the thirty (30)
calendar days, then Seller shall invoice Buyer for one
hundred percent (100%) of the respective core(s)
previously credited. Seller must notify Buyer of core(s)
received after thirty (30) calendar days, enabling Buyer
to Debit the respective Advance Exchange Purchase Order by
twenty five percent (25%) of the original Core Credit.
Failure by Seller to notify Buyer of non-returned
defective within sixty (60) days will result in core
charge forfeiture. Seller shall ship to Buyer, the most
current revision level/part number available to Seller. If
Buyer returns a core which is not the most current
revision level/part number as part of this "Advance
Exchange" process, then Seller shall determine the
appropriate core value credit per Sellers Material Review
Board process. Seller agrees to maintain an "Advance
Exchange" file
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concurrent with the first material receipt/shipment and
continues through all subsequent activity.
H. Buyer will measure Seller's performance against commitments, for
the purpose of establishing Seller's rate of on-time delivery and
lead-time improvement against Buyer's requirements.
I. A copy of Seller's packing list shall accompany all Spares, and/or
Repairs, and/or Expendables, and/or Exchanges shipments and shall
indicate Buyer's Purchase Order Number, Part Number, and Serial
Number.
VI QUALITY, INSPECTION, AND ACCEPTANCE
A. Prior to delivery, Seller shall insure that all Spares, and/or
Repairs, and/or Expendables, and/or Exchanges are in accordance
with the provisions of this Agreement, including but not limited
to: Attachment - C Packaging, Requirements, Attachment - D Quality
Requirements, Attachment - E Product Specification, and all other
quality requirements specified in the Purchase Specifications for
Spares, and/or Repairs, and/or Expendables, and/or Exchanges
purchased under this Agreement, are incorporated herein by
reference.
B. Seller authorizes and agrees to assist Buyer 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 Spares, and/or Repairs, and/or
Expendables, Exchanges 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 sixty (60) days after Buyer's
receipt of the shipment of Spares, and/or Repairs, and/or
Expendables, and/or Exchanges Buyer will return Spares, and/or
Repairs, and/or Expendables, and/or Exchanges which fails to pass
inspection per Acceptance Quality Level (AQL) criteria defined in
Attachment - 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 Spares, and/or Repairs, and/or Expendables,
and/or Exchanges and the pickup shall occur within five (5) days
of notice, or Buyer may select a carrier and return rejected
Spares, and/or Repairs, and/or Expendables, and/or Exchanges Cash
On Delivery (COD), and risk of loss will pass to Seller for
rejected Spares, and/or Repairs, and/or Expendables, and/or
Exchanges FOB Buyer's dock.
VII PAYMENT AND SET-OFF
A. Buyer 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 Spares, and/or
Repairs, and/or Expendables, and/or Exchanges.
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B. Amounts owed to Buyer due to rejections of Spares, and/or Repairs,
and/or Expendables, and/or Exchanges or discrepancies on paid
invoices will be, at Buyer's option, fully credited against future
invoices payable by Buyer, 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 P.O.
issued hereunder, provided such set-off does not contravene
applicable exchange control laws or any other applicable statute.
D. Seller 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. Seller agrees to make
available the maximum offset credits by the laws of the government
in question and for which Buyer is entitled, including those
assignable to either party.
VIII WARRANTY
A. Seller warrants Spares, and/or Expendables, and/or Exchanges for
twelve (12) months from date of acceptance of Spares, and/or
Expendables, and/or exchanges by Buyer or Buyer's customer. Seller
warrants Repairs for twelve (12) months from the later of the date
of acceptance or balance of original warranty. Seller warrants
that Spares, and/or Repairs, and/or Expendables, and/or Exchanges
shall be free from defects in material, workmanship, design, and
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 Spares, and/or Repairs, and/or Expendables,
and/or Exchanges, and that the Spares, and/or Repairs, and/or
Expendables, and/or Exchanges are free of all liens and
encumbrances, and do 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,
and/or Repairs, and/or Expendables, and/or Exchanges. Buyer has
the right to enforce these warranties on behalf of any of its
customers.
B. Seller shall correct defects in Spares, and/or Repairs, and/or
Expendables, and/or Exchange at its facility. At Buyer's option,
Seller shall repair or replace all defective Spares, and/or
Repairs, and/or Expendables, and/or Exchanges within ten (10) days
of receipt of such Spares, and/or Repairs, and/or Expendables,
and/or Exchanges. 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
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of the Spares, and/or Repairs, and/or Expendables, and/or
Exchanges. 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, and/or Repairs, and/or
Expendables, and/or Exchanges.
IX 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.
C. Buyer may reproduce and use Seller's manuals, schematics, and
merchandising literature provided by Seller under this Agreement.
X INTELLECTUAL PROPERTY INDEMNITY
Seller shall defend, at its expense, any claim against Buyer alleging
that Spares, and/or Repairs, and/or Expendables, and/or Exchanges 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 Spares, and/or Repairs, and/or Expendables, and/or
Exchanges or any part there of 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 Spares, and/or Repairs, and/or Expendables, and/or
Exchanges; 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 Buyer's detailed written design specifications, where provided.
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XI 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.
XII CHANGES
A. Buyer 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 Spares, and/or Repairs, and/or
Expendables, and/or Exchanges which affect design, form, fit, or
function, appearance, reliability, 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).
Buyer agrees to use reasonable efforts to issue to Seller, Buyers
final acceptance or rejection of Seller'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 Spares, and/or Repairs, and/or
Expendables, and/or Exchanges stated in Attachment - 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. If Seller fails to comply with Section XII, this Section, Clauses
- A through C, then Seller shall bear all of Buyer's costs to
correct all changes affecting Spares, and/or Repairs, and/or
Expendables, and/or Exchanges.
E. Change Notices: Any notice given under this Section shall be
initially transmitted by means agreed to between the parties, to
addressees specified in Section XIX, this Agreement, herein.
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XIII TERM OF AVAILABILITY
A. In consideration for Buyer's purchase of any Spares, and/or
Repairs, and/or Expendables, and/or Exchanges hereunder, Seller
grants to Buyer the option to purchase Spares, and/or Repairs,
and/or Expendables, and/or Exchanges at the last revision level
purchased under this Agreement, for the period of ten (10) years
after the expiration date of this Agreement or any extension
thereof, or for as long as said Spares, and/or Repairs, and/or
Expendables, and/or Exchanges are made available to any of
Seller's other customers, whichever is the later.
B. Thereafter, Seller may discontinue availability of Spares, and/or
Repairs, and/or and Expendables and/or Exchanges by giving Buyer
twelve (l2) months prior written notice, provided that, at Buyer's
option, Seller shall sell Buyer sufficient quantities of Spares,
and/or Repairs, and/or Expendables and/or Exchanges as Buyer deems
necessary.
XIV U.S. CUSTOMS, MARKING, AND DUTY DRAWBACK
A. Country of Origin
1. "Country of Origin" Marking: The Seller shall xxxx, in
English, all Spares, and/or Repairs, and/or Expendables,
and/or Exchanges with the Country of Origin (manufacture), in
compliance with Section 304 of the United States Tariff Act.
Both the Spares, and/or Repairs, and/or Expendables, and/or
Exchanges and its container must be conspicuously marked with
the Country of Origin. If the Spares, and/or Repairs, and/or
Expendables, and/or Exchanges itself cannot be marked legibly
due to size, then its immediate container must be 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
Spares, and/or Repairs, and/or Expendables, and/or Exchanges
delivered hereunder for each U.S. Customs import duties have
been paid upon importation, or for items 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 #CF331
shall be accurate and shall comply with the United States Duty
Drawback and Customs laws and regulations. Seller shall
indemnify and hold Buyer harmless from and
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against any claims, costs, or damages resulting from or
arising out of Buyers 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.
XV 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 Seller's performance is delayed for these reasons for
a cumulative period of twenty (20) 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 Spares, and/or Repairs, and/or Expendables,
and/or Exchanges: (1) delivered by Seller before receipt of Buyer's
termination notice; and (2) ordered by Buyer for delivery and actually
delivered within fifteen (15) days after receipt of Buyer's termination
notice.
XVI COMPLIANCE WITH LAWS
A. All Spares, and/or Repairs, and/or Expendables, and/or Exchanges
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".
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1) Nonexempt Subcontracts and Purchase Orders over $2,500:
52.222-36 Affirmative Action for Handicapped Workers (APR.
1984)
2) Nonexempt Subcontracts and Purchase Orders over $10,000 or
subcontracts and purchase orders the aggregate value of which
in any twelve month period exceeds or can be expected to
exceed $10,000: 52.222-26 Equal Opportunity (APR. 1984)
3) Nonexempt Subcontracts and Purchase Orders over $10,000:
52.222-21 Certification of Nonsegregated Facilities (APR.
1984) 52.222-35 Affirmative Action for Special Disabled and
Vietnam Era Veterans (AP.R 1984)
4) Subcontracts and Purchase Orders cover the small purchase
limitation, $25,000: 52.219-13 Utili-zation 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
Attachment - J, 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.) is
attached as Attachment - I, 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
Spares, and/or Repairs, and/or Expendables, and/or Exchanges 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.
XVII 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.
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1. Seller fails to deliver Spares, and/or Repairs, and/or
Expendables and/or Exchanges on time.
2. Spares, and/or Repairs, and/or Expendables, and/or Exchanges
do not conform to the applicable descriptions or
specification.
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. Seller 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 Section - XVII, this Section, Clause A, Paragraph 1,
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 Spares, and/or Repairs, and/or
Expendables, and/or Exchanges delivered before the date of Buyer's
notice to cure.
XVIII TERMINATION FOR CONVENIENCE
Buyer may terminate this Agreement for convenience thirty (30) days
after giving Seller written notice. Buyer's sole liability to Seller
for such termination shall be to pay Seller any unpaid balance due for
conforming material:
1. Delivered against Buyer's Purchase Order(s) before receipt of
Buyer's termination notice; or
2. Ordered by Buyer and scheduled for delivery within the
cancellation notice period specified in Section - XII, this
Agreement, hereto.
XIX 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
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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:
Amcom Corporation Digital Equipment Corporation
Attn: Xxxxx Xxxx Attn: Xxxxx X. Xxxxx
0000 Xxxx Xxxxx, 000 Xxxxxxx Xxxx,
Xxxx Xxxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
XX DOCUMENTATION, TRAINING & TECH SUPPORT
Seller hereby grants Buyer the right to reproduce, in whole or in part,
all documentation and training material provided to Buyer in order for
Buyer's organization to effectively service Sellers products.
XXI BUYER OWNED MATERIAL
A. Buyer shall furnish gratuitously to Seller the tooling, test
equipment, products and/or documentation ("Buyer-Owned Material")
listed in Section XXI, this Section, Clause - B, subject to the
following:
1. Title and ownership of all Buyer-Owned Material shall at all
times rest solely in Buyer, and Seller shall do nothing
inconsistent with Buyer's title thereto.
2. Seller shall, while such Buyer-Owned Material is in its
possession and control (including transit to and from Seller's
facility), be responsible for its safekeeping and for any loss
and/or destruction. Seller agrees to insure the Buyer-owned
Material at its expense in an amount equal to its replacement
value with Buyer as the named payee.
3. Seller shall use Buyer-Owned Material solely and exclusively
for the performance of its obligations under this Agreement.
4. At its own expense, Seller shall be responsible to maintain
Buyer-Owned Material in good working order and condition. This
maintenance shall include but not be limited to calibrating
test equipment and having service and preventive maintenance
performed as appropriate.
5. Seller shall promptly return to Buyer all Buyer-Owned Material
in good working order, reasonable and normal wear and tear
expected, upon expiration or earlier termination of this
Agreement.
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6. Seller also grants Buyer's authorized repre-sentative(s)
permission to enter Seller's facility at any time during
normal business hours for the purpose of repossessing all or
part of the Buyer-Owned Material, if Buyer, in its sole
discretion, deems this to be a more desirable way of providing
for the return of the Buyer-Owned Material.
B. If any Spares, and/or Repairs, and/or Expendables, and/or
Exchanges owned by the Buyer ("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.
XXII 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 Attachment(s) - A through J shall survive termination or
expiration of this Agreement.
XXIII BUSINESS REVIEWS
A. Buyer and Seller shall, each at their own expense, meet
periodically to review performance and business transacted, and to
identify and resolve those issues which have arisen since the last
business review meeting. Buyer and Seller agenda items shall
address compliance to the following goals:
1. Order Processing Turn Around Time - Place all orders the same
day
2. Order Processing Accuracy - A1l orders 100% accurate
3. Defective Returns Processing - Same day as received
4. Delivery - All orders shipped the same day
5. Backorders - (0) zero
6. Metric Reporting - Incoming and Outgoing orders, pieces, lines
7. Pricing Review
8. Quarterly Reports - See Section XXVI
B. Buyer and Seller shall furnish agenda items not later than two (2)
weeks prior to scheduled business review meetings. Minutes shall
document action items, open items, and committed dates which may
result from such business review meetings,
16
and shall be sent by the drafting party to the other party within
ten (10) days after each meeting.
C. Seller shall provide records upon request of Buyer to demonstrate
compliance to the required quality specifications and effective
operation of the quality system as described in Attachment - D.
D. The Buyer, per the Terms and Conditions of this Agreement has the
right to examine the records of the Seller which pertain to Buyers
transactions with Seller.
XXIV 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; Sellers unauthorized disclosure of Buyer's
confidential information; or any indemnification (including Section X,
Intellectual Property Indemnity) granted by Seller in connection with
this Agreement.
XXV GOOD (MATERIAL) RETURN/ SELLBACK
A. During the Purchase Period of this Agreement, and any extension,
Buyer may return unused Spares, and/or Repairs, and/or
Expendables, and/or Exchanges purchased hereunder to Seller for
credit or refund of purchase price, to be determined at time of
incident. Buyer shall have the option of requesting credit or
refund, no matter what method of payment is chosen, the basis of
calculating such credit or refund shall be the original purchase
cost incurred by Buyer, less a 15% restocking fee.
B. Seller shall accept return of Spares, and/or Repairs, and/or
Expendables, and/or Exchanges using its standard "return material
authorization" process.
C. If the Spares, and/or Repairs, and/or Expendables, and/or
Exchanges Buyer desires to return to Seller are in any way
determined to be in a "not new" but used condition, the value of
such Spares, and/or Repairs, and/or Expendables, and/or Exchanges
shall be determined by mutual agreement with Buyer.
D. Buyer shall pay all shipping costs, including insurance and other
related costs, to return such Spares, and/or Repairs, and/or
Expendables, and/or Exchanges to Seller's designated receiving
facility.
E. Spares, and/or Repairs, and/or Expendables, and/or Exchanges
returned under this Section shall be credited at fifteen percent
(15%) of original purchase price, provided, such Spares, and/or
Repairs, and/or Expendables, and/or Exchanges:
1) were purchased from Seller under this Agreement; and
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2) are unused, and in their original containers or packaging; and
3) are in Seller's then current product line; and
4) are subject to Seller's quality inspection.
XXVI QUARTERLY REPORTS
Seller agrees on a quarterly basis to provide Buyer with a written
report of purchases that shall contain the following data:
1) Part Number and revision level.
2) Quantity purchased.
3) Purchase Order number.
4) The Buyer's facility (from which purchase order was released).
5) Current Stocking levels.
6) P1 Activity (Part Number, P.O. number, Facility) and shipment
performance.
7) Total units shipped to date by purchase location/by product.
8) NPF (No Problem Found) data
9) NFF (No Failure Found) data
XXVII PERIODIC AUDIT/EXAMINATION OF RECORDS
A. The Buyer or its representative shall, until the termination of
this Agreement or any extension thereof, have access to and the
right to examine any of the Seller's directly pertinent books,
documents, papers, or other records involving transactions related
to this Agreement. In addition, the Buyer or its representative,
during the time period referenced above, shall have the right to
interim financial statements and can conduct an audit of the
aforementioned financial statements.
B. The Seller shall maintain and the Buyer or its representative
shall have the right to examine and audit -- books, records,
documents, and other evidence and accounting procedures and
practices, regardless of form (e.g. data bases, applications
software, data base management software, utilities, etc.)
sufficient to reflect properly all costs, claimed to have been
incurred or anticipated to be incurred in performing this
contract.
C. This right of examination shall include inspection at all
reasonable times of the Sellers plants, facilities, or parts of
them, engaged in performing the contract.
XXVIII GENERAL
A. This Agreement is the complete and entire understanding between
the parties on this subject matter and supersedes all prior
agreements, discussions, 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.
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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.
D. Seller, including its servants, agents, and employees, is an
independent contractor and not an agent or employee of Buyer.
Without limiting the generality of the foregoing, Seller is not
authorized to represent or make any commitments on behalf of
Buyer, and Buyer expressly disclaims any liability therefore.
E. Supplemental terms are included in Attachments) - A through J, 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.
IN WITNESS WHEREOF, the authorized representatives of the parties have
executed this Agreement under seal as of the date(s) set forth below.
Amcom Corporation Digital Equipment Corporation
(Seller) (Buyer)
/s/ Del X. Xxxxxxx /s/ Xxxxx X. Xxxxx
----------------------------- ------------------------------
(Signature) (Signature)
_____________________________ XXXXX X. XXXXX/MCS CONTACTS MGR.
(Name/Title)
_______3/27/96_______________ _________3/12/96 _________________
(Date) (Date)
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ATTACHMENT - A
PRODUCTS AND LEAD-TIME
1. Products
The Material, Spares, and/or Repairs, and/or Expendables, and/or Exchanges
available from Seller for purchases by Buyer under this Agreement shall include
all products currently offered by Seller as well as any Material, Spares, and/or
Repairs, and/or Expendables, and/or Exchanges added by mutual consent in the
future.
2. Lead Time
Delivery for Material, Spares, and/or Repairs, and/or Expendables, and/or
Exchanges shall be as discussed and mutually agreed to by consenting business
segments of both parties, including provisions for material delivery as
incorporated in this Agreement.
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