CONFIDENTIAL TREATMENT REQUESTED CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ATHEROS TECHNOLOGY LTD. VOLUME PURCHASE AGREEMENT
Exhibit 10.47
CONFIDENTIAL
TREATMENT REQUESTED
CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN
SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ATHEROS TECHNOLOGY LTD.
VOLUME PURCHASE AGREEMENT
VOLUME PURCHASE AGREEMENT
This Volume Purchase Agreement (this “Agreement”) is made and entered into effective as of the
day of February 28, 2011, by and between Atheros Technology Ltd., a Bermuda corporation
(“Atheros”) and Aruba Networks, Inc., a Delaware corporation (“Buyer”).
WHEREAS, Atheros desires to sell to Buyer, and Buyer desires to purchase from Atheros, certain
semiconductor products (“Components”), subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises contained herein, it is hereby agreed
as follows:
1. Scope. This Agreement shall apply to sales of Components by Atheros to Buyer. Atheros and
Buyer may be referred to herein as “Party” when referred to individually and “Parties” when
referred to collectively.
“Components” refers only to hardware, chips and chipsets. Software, reference designs,
developer’s kits, and documentation, if any, have been separately licensed under the Atheros
Non-Exclusive Technology License Agreement (“Technology License Agreement”) mutually executed by
Atheros’ parent corporation, Atheros Communications, Inc., and
Buyer where Buyer is a licensee (“Licensee”) for Licensee’s use in integrating the Components as part of products developed by or
for Licensee (“Licensee Products”).
1.1 Customizations. Buyer may request that certain customizations, such as the inclusion of
certain macros, be made to the Components, which Atheros may choose to implement, subject to the
following:
1.1.1 Process. If Buyer wishes Atheros to implement the customizations, Buyer and
Atheros shall in good faith prepare and execute a schedule, referencing this Agreement and
providing details on product pricing, non-recurring fees, customizations, and delivery schedule, at
a minimum.
1.1.2 Conditions. Atheros may unilaterally reject any request for customization on
commercially reasonable grounds, including but not limited to: the customizations do not fit into
the architectural design and physical limits of the applicable Component; or Buyer’s current
and/or projected purchases of the subject Component are insufficient to justify the request for
customizations; or Atheros has slated the subject Component to become a Legacy Product (as defined
in Section 2.2) within such proximity of the request for customization as to render customization
not commercially reasonable.
1.2 Continuity of Supply. Atheros agrees to use commercially reasonable efforts to ship and
deliver Components and customizations thereto (for orders accepted pursuant to Section 1.1 and
Section 2, respectively) based on commercially reasonable lead times, from order to shipment, and
to manage a die bank in support thereof.
2. Orders
2.1 Orders and Acceptance. Buyer, directly or via ODMs, assemblers and other third parties
acting on Buyer’s behalf (all of which comprise “Authorized Purchasers”), may procure Components
from Seller pursuant to orders issued to and accepted by Atheros. Components purchased by ODMs,
assemblers and other third parties for the benefit of Buyer shall, once purchased, be deemed
Components under this Agreement. Buyer will have no obligation to purchase Components from Atheros,
and Atheros will have no obligation to sell Components to Buyer, except pursuant to orders accepted
by Atheros. To be accepted by Atheros, an order must set forth the type and quantity of the
Components to be purchased, the price, and the requested delivery dates, and may not otherwise be
in nonconformance with the terms of this Agreement. Orders shall be subject to written acceptance
by Atheros; any such acceptance may not be in nonconformance with the terms of this Agreement, and
delivery schedules shall be established in accordance with Component availability and Buyer’s
credit status. Atheros may accept orders from Buyer in Atheros’ sole discretion.
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2.2 Rescheduling and Cancellation. Atheros will promptly notify Buyer if any order or part of
an order cannot be filled or if there will be any delays in delivery. Atheros will use commercially
reasonable efforts to ship and deliver on indicated dates but will not be liable for failure to do
so. Alternatively, should Atheros find that the delivery date agreed on cannot be met,
Atheros shall notify Buyer in writing, stating the cause of the delay and an estimated delivery
date. Except with respect to Legacy Products (as defined in Section 2.3 below): For standard
Components, Buyer may reschedule orders accepted by Atheros and scheduled for delivery, subject to
the following limitations:
Days until Atheros
scheduled shipment of
an order
|
Limits on order reschedules and cancellations | |
61 — 90
|
Rescheduling for a period of up to 120 days later than the original scheduled ship date. Two reschedules per order only. Rescheduled orders may not be subsequently cancelled; OR Cancellation of up to 30% of original order. | |
60 or less
|
No cancellations or reschedules. |
For Components having any customization, Buyer may reschedule orders accepted by Atheros and
scheduled for delivery, subject to the following limitations:
Days until Atheros
scheduled shipment of
an order
|
Limits on order reschedules and cancellations | |
31-90
|
No cancellations. Rescheduling for a period of up to 60 days later than the original scheduled ship date. One reschedule per order only. | |
30 or less
|
No cancellations or reschedules. |
2.3 For Legacy Products. This Section 2.3 applies to Legacy Products only and, with respect to
Legacy Products, supersedes any contrary provisions of this Agreement. Legacy Products are defined
as any Atheros products in their last stage of product life cycle, as designated by Atheros in its
sole discretion. The work-in-process (WIP) of Legacy Products is therefore maintained at a low
level, and all Legacy Products are BUILT TO ORDER ONLY. Legacy Products shall be designated by
Atheros in its discretion and shall be identified as such by Atheros to Buyer from time to time in
writing. Lead-times for Legacy Products are 12-14 weeks after receipt of order (ARO) and terms are
NCNC (Non-cancellable, Non-changeable). Additional fees and costs associated with expedite requests
(i.e., through Fab or Assembly) will be added and passed to Buyer. If Buyer cancels an
order for Legacy Products, there will be an associated cancellation fee, as follows:
Cancellation fees: | |||
• | <60 days until scheduled shipment of an order: Buyer must pay PO in full | ||
• | 61-90 days until Atheros scheduled shipment of an order: Buyer must pay 75% of purchase price | ||
• | >90 days until scheduled shipment of an order: Buyer must pay 50% of purchase price. |
2.4 Precedence. This Agreement takes precedence over Buyer’s or Seller’s additional or
different terms and conditions which may be included on Buyer’s purchase order, Seller’s quotation
or purchase order acknowledgement, or otherwise, to which notice of objection is hereby given, and
any inconsistent or additional terms in such forms will be of no effect. Any changes
to this Agreement must be specifically agreed to in writing by Atheros and Buyer.
2.5 Obsolescence. If Atheros chooses to obsolete any Components, it shall give at least six (6)
months advance notice to Buyer. Buyer may place orders during the notification period for shipment
no later than twelve (12) months after the notice date.
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3. Delivery; Title
3.1 Delivery. Components will be delivered Ex Works (Incoterms 2000), Atheros’ designated
factory dock or distribution center dock. Buyer will pay all costs relating to transportation,
delivery, duties and insurance. Buyer will provide Atheros with shipping instructions on its order
and if it fails to do so, Atheros will determine the carrier and means of transportation and will
ship the Components freight collect. Buyer shall notify Atheros in writing of any shortage in any
shipment within thirty (30) days after Buyer’s receipt of such shipment. All shipments shall be
directed to a Buyer operated receiving location.
3.2 Risk of Loss. Risk of loss for the Components shall pass from Atheros to Buyer at the Atheros
shipping point, and Buyer will bear the risk of loss after the shipping point and will be solely
responsible for filing claims relating to any lost or damaged goods.
3.3 Title. For Components Delivered Outside of United States: Title to the Components shall
pass to Buyer as follows: Atheros reserves title in the Components until paid for in full by Buyer,
for the purpose of protecting Atheros’ right to receive payment under the laws of various
countries. This reservation of title does not affect Buyer’s ability to transfer title to the
Components in the ordinary course of its business, provided that Buyer hereby assigns in advance to
Atheros any proceeds from the disposition of such Components to the extent of the amount owed to
Atheros. For Components Delivered within the United States. Title to the Components shall pass from
Atheros to Buyer at the Atheros shipping point. Buyer hereby grants to Atheros a purchase money
security interest covering each shipment of Components made hereunder (and any proceeds derived
therefrom) in the amount of Atheros’ invoice for such shipment until payment in full is received by
Atheros. Buyer agrees to sign and execute any and all documents as required by Atheros to perfect
such security interest.
3.4 Exporter and Importer of Record. For International Shipments, Buyer or its properly
authorized agent or freight forwarder shall be the exporter of record. Buyer shall also be the
importer of record and is responsible for fulfilling quota terms, obtaining import licenses,
paying import license or permit fees, duties and customs fees, and any other governmental or import
taxes or fees, and preparing and submitting all required documentation in connection with importing
the Components.
4. Returns. No Components may be returned except under warranty or due to shipment error by
Atheros. All returns must be made in accordance with Atheros’ then-current Return Material
Authorization (“RMA”) procedures or such other procedures as are expressly agreed to in writing by
an authorized representative of Atheros (“Atheros RMA Procedures”). Atheros shall have no
responsibility or liability for returns not made in accordance with such Atheros RMA Procedures. A
summary of Atheros RMA Procedures as of the Effective Date is attached hereto as Exhibit A. Changes
to RMA Procedures shall take effect thirty (30) days after written notice and shall apply only to
orders placed after such notice period.
5. Prices; Payment; Taxes; Rebates
5.1 Prices. Pricing is stated in a written price quote from the designated Atheros Account
Manager (or a designated substitute) to Buyer. Atheros may change its prices at any time, although
such changes shall not alter accepted purchase orders. All prices are in U.S. dollars.
5.2 Payment. Provided that Buyer receives written approval of the extension of credit terms
from Atheros’ credit department, payment terms are net thirty(30) days from the date of invoice
unless otherwise specified in writing from Atheros. Buyer must give Atheros written notice of any
discrepancies among the purchase order, the invoice, and the Components received, within thirty
(30) days after receipt of the Components or the invoice, whichever occurs later. Payment is not
conditioned upon the Components meeting any acceptance testing procedures or criteria. If there is
any dispute as to a part of a shipment, Buyer will pay for the undisputed part of that shipment.
All payments to Atheros shall be in U.S. dollars, free of any restrictions or withholdings. In the
event that Buyer has a delinquent balance with Atheros, Atheros may require payment in advance by
wire transfer, confirmed irrevocable letter of credit, or such other means as are acceptable to
Atheros, with respect to any past, pending or subsequent purchase orders until the delinquent
balance is paid in full.
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5.3 Intentionally omitted.
5.4 Taxes. Buyer is responsible for payment of all taxes of every kind imposed in connection
with the sale to Buyer of Components or which Atheros may incur in respect of this Agreement
(except for taxes imposed on Atheros’ net income) and any penalties, interest and collection or
withholding costs associated with any of the foregoing items. All such amounts are in addition to
other amounts payable hereunder. Under no circumstances shall Buyer pay less to Atheros than would
otherwise be due if any such taxes or fees are required to be withheld by Buyer from payments to
Atheros. Buyer may provide Atheros with a tax exemption certificate acceptable to the taxing
authorities in lieu of paying certain taxes; however, Buyer shall reimburse Atheros for any fines,
penalties, taxes and other charges, including expenses incurred by Atheros, due to Buyer’s
submission of invalid information.
5.5 Rebates. If a rebate applies, the payment of any such rebate will be subject
to the following terms: (i) by the first day of each calendar month, Buyer shall submit to Atheros
a consumption report stating the number of Components purchased and received by Buyer from its
board supplier (or, if applicable, directly from Atheros) during the immediately preceding month,
together with supporting documentation acceptable to Atheros in its discretion; (ii) as soon as
practicable after the beginning of each calendar quarter, Buyer and Atheros will cooperate in
good faith to agree upon the rebate amount for the previous quarter, based on the above
monthly consumption reports and supporting documentation delivered by Buyer for such quarter, and
Buyer shall issue an invoice to Atheros for such agreed-upon rebate amount; (iii) if Buyer is a
direct customer of Atheros, Buyer must deliver to Atheros the above monthly information and a
mutually agreed-upon invoice for the rebate amount as provided above, no later than 180 days after
Atheros has delivered to Buyer the Components to which such rebate amount applies; (iv) if Buyer
has purchased Components from a board supplier, Buyer must deliver to Atheros the above monthly
information and a mutually agreed-upon invoice for the rebate amount as provided above, no later
than 180 days after the board supplier has delivered to Buyer the Components to which such rebate
amount applies; and (v) rebates are only payable with respect to Components for which Atheros has
received payment from Buyer or Buyer’s board supplier, as applicable.
6. Reservation of Rights; No License; Markings.
6.1 WWAN Reservation. Effective immediately as of the anticipated closing of the acquisition
of Atheros by Xxxxxxxx Xxxxxxxxxxxx or its subsidiary, Buyer hereby acknowledges and agrees that
neither the delivery of any products or license grant for any software, under any Agreement or any
provision of any Agreement, nor the direct or indirect sale of products by Atheros to Buyer shall
be deemed or construed to grant either expressly, by implication, by way of estoppel, or otherwise
any right, license, covenant or immunity under any patents of Atheros or of any parent or any other
affiliate of Atheros, each to the extent applicable to Atheros products that are sold, or software
that is licensed, for use in any product which implements, in whole or in part, any WWAN Standard
(other than, with respect to patents of Atheros, products that are sold for use in any complete GSM
single-mode device that transmits and receives communications using GSM only, and does not transmit
or receive communications using any other WWAN Standard). For this purpose, (i) the term “WWAN
Standard” means any mandatory or optional portion of any wide area wireless air interface standard,
including, without limitation, GSM, CDMA, TD-SCDMA, Universal Mobile Telecommunications Standard
(UMTS), Wideband Code Division Multiple Access (WCDMA), HSPA, HSDPA, HSUPA, HSPA+, WiMax, IEEE
802.16 (including 802.16e and 802. 16m), WiBro, IEEE 802.20, UMB (formerly known as lxEVDO Rev. C),
Long Term Evolution (LTE) and any updates and revisions to any of the foregoing, and (ii) the term
“GSM” means any one or more of the following wide area wireless air interface standards: (a) Global
System for Mobile Communication (GSM), (b) General Packet Radio Services (GPRS), or (c) Enhanced
Data Rates for GSM Evolution (EDGE). Any rights not expressly granted to Buyer herein are hereby
reserved by Atheros, and Buyer hereby acknowledges and agrees that this disclaimer of patent rights
shall not be deemed to be a derogation of any express rights that have otherwise been granted by
Atheros in any Agreement.
4
6.2 Reverse Engineering. Buyer acknowledges and agrees that the sale to Buyer of the
Components does not convey any license expressly or by implication, to, and Buyer shall not,
manufacture, reverse engineer, duplicate, or otherwise reproduce any of the Components or any part
thereof. Buyer will not remove, alter or obfuscate any patent markings on the Components or
otherwise cause any patent on the Components to become ineffective under applicable patent laws.
Buyer shall place in a conspicuous location on each and every Licensee Product sold by it or
documentation shipped there with, a legally sufficient patent notice. Each Party shall be fully
responsible for any false patent markings. Atheros will advise Buyer of the patent number or
numbers and the applicable notice, and each Party shall fully indemnify and hold harmless the other
Party from and against any and all liability arising from displaying, or failing to display, the
foregoing.
7. No Support or Other Services. Buyer acknowledges that no installation, training, education,
or any other support or other services are contracted for or purchased hereunder unless
specifically agreed to in writing by Atheros. If Atheros offers or gives technical advice or
performs any training in connection with the use of any Components, such advice or training will be
provided only as an accommodation to Buyer, and Atheros has no responsibilities whatsoever for the
content or use of such advice or for any damages that may result from the use, support,
maintenance, servicing or alteration of the Components by an Atheros representative.
8. Limited Warranty
8.1 Component Warranty. Atheros warrants that the Components will substantially
conform to the features specified in its then-current datasheet, as it may be amended by Atheros
from time to time, for a period of ninety (90) days from the date of shipment. Atheros warrants
that all Components sold by Atheros to Buyer under the terms of this Agreement will be free from
defects in workmanship and materials under normal use and service for one (1) year from the date
of shipment by Atheros. If a Component does not operate as warranted during the applicable warranty
period, and provided that Buyer notifies Atheros promptly within the warranty period and complies
with the Atheros RMA Procedures, Atheros shall, in its sole discretion (a) deliver to Buyer an
equivalent Component to replace such defective Component at its expense or (b) if replacement is
not feasible, refund or issue a credit to Buyer (at Atheros’ sole discretion) in the amount of the
purchase price paid for the defective Component. Replacement Components are warranted for ninety
(90) days or the balance of the original warranty period, whichever is longer.
8.2 Warranties Exclusive.
8.2.1 Sole Remedy. BUYER’S SOLE REMEDY FOR BREACH OF THE EXPRESS WARRANTY ABOVE
SHALL BE REPLACEMENT OR REFUND OR CREDIT (AT ATHEROS’ SOLE DISCRETION) OF THE PURCHASE PRICE AS
SPECIFIED ABOVE, AT ATHEROS’ OPTION. TO THE FULLEST EXTENT ALLOWED BY LAW, THE WARRANTY AND
REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR
CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE,
INCLUDING BUT NOT LIMITED TO WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, NON-INFRINGEMENT, AND
ACCURACY OF INFORMATION GENERATED, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. ATHEROS’ WARRANTIES
HEREIN RUN ONLY TO BUYER AND ARE NOT EXTENDED TO ANY THIRD PARTIES, WHICH FOR THE AVOIDANCE OF
DOUBT, INCLUDES ANY AGENTS OR RESELLERS OF LICENSEE PRODUCTS OR END USERS. ATHEROS NEITHER
ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE
SALE, INSTALLATION, MAINTENANCE OR USE OF THE COMPONENTS.
8.2.2 No Atheros Defect. ATHEROS SHALL NOT BE LIABLE UNDER THIS
WARRANTY IF ITS TESTING AND EXAMINATION DISCLOSE THAT THE ALLEGED DEFECT IN THE COMPONENT DOES NOT
EXIST OR WAS CAUSED BY BUYER’S, END USER’S OR ANY THIRD PERSON’S MISUSE, NEGLIGENCE, IMPROPER
INSTALLATION OR IMPROPER TESTING, ATTEMPTS TO REPAIR OR USE BEYOND THE RANGE OF THE INTENDED USE,
OR BY ACCIDENT, FIRE, LIGHTNING OR OTHER HAZARD OR ANY OTHER CAUSE BEYOND ATHEROS’ CONTROL.
5
8.3 Buyer Responsibilities. Buyer acknowledges and agrees that Buyer is solely responsible for
the selection of the Components, their ability to achieve the results Buyer intends, their use with
any hardware, software, peripherals or any system, and the performance that Buyer, Buyer’s
customers and end users obtain from using them. Buyer alone shall assume any and all warranty
obligations with customers and end users for each Licensee Product that incorporates the Components, and Buyer has no authority to obligate Atheros in any way under each such warranty.
9. Intellectual Property Indemnity
[***]
*** | Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
6
10. Limitation of Liability
10.1 [***]
10.2 [***]
10.3 Special Applications. The Components are not designed and are not warranted to be
suitable for use in applications involving the risk of personal injury or death or the destruction
of property (“Special Applications”). Use of any Atheros product in a Special Application without
the express written approval of Atheros is prohibited and ATHEROS SHALL NOT BE LIABLE FOR ANY
DAMAGES ASSOCIATED WITH SUCH RISKS. Buyer assumes any and all liability for any damages resulting
from use of the Components in Special Applications and shall indemnify, defend, and hold Atheros
harmless from any third-party claims arising from such use
11. Export Compliance. If subject to U.S. export law jurisdiction, Buyer agrees not to
re-export, either directly or indirectly, the Components or technical data without first obtaining
any required license or other approval from the U.S. Department of Commerce or any other agency or
department of the United States government. If Buyer re-exports any Components or
technical data, Buyer shall ensure that the re-export or import of the Components and technical
data is in compliance with all laws, regulations, orders or other restrictions of the United States
and the appropriate foreign government. Atheros may require Buyer to execute a Letter of Assurance
on an annual basis or more frequently when required and may require details on the end user or end
use application when necessary in order to comply with any applicable U.S. export license
requirements. Buyer agrees not to include any discriminatory statements or requirements in
contracts or other documents related to the sale or use of the Components or products that include
the Components.
12. General
12.1 Force Majeure. Neither Party shall be liable to the other Party for any alleged loss or
damages resulting from delays in performance (including loss or damages resulting from delivery of
the Components being delayed) resulting from acts of the other Party, acts of civil or military
authority, governmental priorities, earthquake, fire, flood, epidemic, quarantine, energy crisis,
unavailability of supplies, strike, , labor trouble, war, riot, accident, shortage, or any other
causes beyond Atheros’ reasonable control.
12.2 Entire Agreement. This Agreement is the complete, final and exclusive statement of the
terms of the agreement between the Parties, and supersedes all prior understandings, writings,
proposals, representations or communications, oral or written, relating to the subject matter
hereof, but does not supersede the Technology License Agreement or any nondisclosure agreements
between the parties.
*** | Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
7
12.3 Notices. Notices shall be given in writing by personal delivery, recognized overnight
courier, or facsimile provided that a confirmation of receipt is obtained. All notices shall be
deemed to have been given and received on the earlier of actual delivery (except that faxes sent on
a non-business day will be deemed received on the next business day) or three (3) days from the
date of deposit with overnight courier, to the address set forth below, or to such other address as
a Party has notified the other Party in writing.
If to Atheros:
c/o Atheros Technology (Macau Commercial Offshore) Limited
Alameda Xx. Xxxxxx X’Xxxxxxxxx 181-187,
Centro Comercial do Grupo Brilhantismo,
17 Andar W
MACAU
Fax: + 000 000 000
Telephone: + 000 000 000
Alameda Xx. Xxxxxx X’Xxxxxxxxx 181-187,
Centro Comercial do Grupo Brilhantismo,
17 Andar W
MACAU
Fax: + 000 000 000
Telephone: + 000 000 000
With a copy to:
Atheros Communications,
Inc.
Attention: Legal Department
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
XXX
Fax: x0-000-000-0000
Telephone: + 0-000-000-0000
Attention: Legal Department
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
XXX
Fax: x0-000-000-0000
Telephone: + 0-000-000-0000
If to Buyer:
Aruba Networks, Inc.
Attn: Vice President of Operations
0000 Xxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Fax: + 0.000.000.0000
Attn: Vice President of Operations
0000 Xxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Fax: + 0.000.000.0000
With a copy to:
Aruba Networks, Inc.
Attn: General Counsel
0000 Xxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Fax: + 0.000.000.0000
Attn: General Counsel
0000 Xxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Fax: + 0.000.000.0000
12.4 Assignment. Buyer shall not assign its purchase orders, this Agreement or any interest in
or any rights hereunder without the prior written consent of Atheros.
12.5 Waiver. A waiver of any default hereunder or of any of the terms and conditions of this
Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any
other term or condition, but shall apply solely to the instance to which such waiver is directed. .
8
12.6 Arbitration. All disputes, claims, and controversies between the Parties arising out of
or related to this Agreement or the breach hereof (except for breach of any obligation of
confidentiality; infringement, misappropriation, or misuse of any intellectual property right, or
any other claim where interim relief from the court is sought to prevent serious and irreparable
injury to one of the Parties or to others) that cannot be resolved by the Parties within a period
of thirty (30) days after written notice of a dispute has been given by one Party hereunder to the
other (the last day of such thirty (30) day period being herein referred to as the “Arbitration
Date”), shall be settled by arbitration by an arbitrator with substantial experience in resolving
complex commercial contract disputes, who shall be chosen from a list of JAMS arbitrators. The
arbitration shall be conducted by one arbitrator appointed pursuant to the applicable procedures of
JAMS and conducted under the then-current Commercial Arbitration Rules of the American Arbitration
Association. The arbitrator shall issue an award in support of his or her decision within 120 days
of the selection of the arbitrator, stating the legal and factual basis for the decision and the
reasoning leading to such decision. The arbitrator shall be prohibited from awarding damages or
remedies in excess of those allowed by the provisions of this Agreement. If the Parties cannot
agree upon the identity of an arbitrator within fifteen (15) days following either Party’s receipt
of notice that an arbitration has been commenced by the other Party, then an arbitrator shall be
selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. Any
arbitrator so selected shall have substantial experience in the networking and wireless
communication circuitry industries. The arbitrator shall have the authority to grant specific
performance and shall allocate between the Parties the costs of arbitration (including service
fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as
the arbitrator may determine. The substantially prevailing Party in the arbitration, as shall be
determined by the arbitrator, shall be entitled to receive reimbursement of its reasonable expenses
(including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in
connection therewith. The decision and award of the arbitrator shall be final and binding and
judgment on the award so rendered may be entered in any court having
jurisdiction thereof. The arbitration shall be held in Santa Xxxxx County, California, and the award shall be deemed to be
made in California. Except as may be determined otherwise by the arbitrator, each Party shall bear
its own costs and expenses, including attorney’s fees, witness fees, travel expenses, and
preparation costs. Notwithstanding the foregoing, each Party shall have the right to institute an
action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision
by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the
arbitrator.
12.7 Governing Law and Venue. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND ALL
DISPUTES HEREUNDER SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF CALIFORNIA, USA, IRRESPECTIVE OF
ANY PRINCIPLES OR RULES OF CONFLICT OF LAWS. Subject to the Arbitration provision above, the
Superior Court of Santa Xxxxx County and/or the United States District Court for the Northern
District of California shall have exclusive jurisdiction and venue over all controversies in
connection herewith. The United Nations Convention on Contracts for
the International Sale of Goods
is hereby excluded in its entirety from application to this Agreement.
12.8 Choice of Language. The original of this Agreement is in English and Buyer waives any
right to have it written in any other language.
12.9 Survival. The following provisions shall survive the termination of this Agreement or the
relationship between Atheros and Buyer: Articles: 3.3 Title, 3.4 Exporter and Importer of Record;
4. Returns; 5. Prices; Payment; Taxes, 6. Reservation of Rights; No License; Markings, 8. Limited
Warranty, 9. Intellectual Property Indemnity, 10. Limitation of Liability, 11. Export Compliance
and 12. General.
9
BY SIGNING BELOW, THE PARTIES ACKNOWLEDGE THAT EACH HAS READ THE AGREEMENT, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
Atheros: |
Buyer: | |||||||||
ATHEROS TECHNOLOGY LTD. |
ARUBA NETWORKS, INC. | |||||||||
By
|
/s/ Xxxxx X. X. Xxxxxxxxxx
|
By | /s/ Xxxxx Xxxx
|
|||||||
Title SECRETARY | Title General Counsel | |||||||||
Date 14th March 2011 | Date 3/14/2011 |
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Exhibit A
1.0 | PURPOSE / SCOPE: |
1.1 | This procedure establishes the policy and methodology regarding to the return of Atheros products from customers or distributors. This is a summary of the RMA process, for more details please refer to OPQ-0180-1. | ||
1.2 | This procedure includes RMA returns from customers or distributors for product performance issues or administrative issues. |
2.0 | Terms and Conditions |
2.1 | All products returned to Atheros require a RMA number issued by Inside Sales. | ||
2.2 | The products returned for RMA must be protected from physical and electrical (ESD) damage through the use of appropriate packaging materials. | ||
2.3 | RMA package must include returned products, completed Return Material Authorization Form and shipping documents to provide the following information or they will be subject to return to the sender or delays in response: | ||
2.4 | Administrative product returns must be received within 30 days starting from the RMA issue date or they will expire. Products received after the expiration date may be returned to the customer at the discretion of Atheros management. | ||
2.5 | Non-conforming product returns will be limited to 5 units pending verification unless verification can be accomplished in the field. Additional RMA numbers will be issued after verification for quantities that exceed 5 units. | ||
2.6 | Returned product that requires failure analysis or that is non-conforming and requires verification must be returned within 15 days starting from issue date or the RMA will expire. Product received after expiration date may be returned to the customer at the discretions of Director of QA and VP of Sales. | ||
2.7 | Credit will be issued to customer returning products for administrative reason after incoming inspection criteria are met and the RMA is closed. | ||
2.8 | Credit will not be issued to customers returning non-conforming product samples for the purpose of verification. In general, credit will not be issued for quantities less than 10 units. | ||
2.9 | In special cases, VP of Sales may approve a product return for other than non-conformance, order entry error or stock rotation. |
3.0 | RMA Category | |
RMA database includes three major categories: a) administrative, b) non-conforming, and c) recall. Descriptions of sub-categories within each major category are listed low: |
3.1 | Recall: |
• | Shipping Recall: Based on the relevant FA results, Production Control evaluates the shipping history of specific lots or products and provides recall notification to customers. | ||
• | Place On-hold: Production Control places the specific lots or products on-hold and proceeds with MRB process. |
3.2 | Administrative: |
• | Order Entry Error | ||
• | Stock Rotation: Requested by an authorized distributor based on established terms and conditions. | ||
• | Other: Return based on special circumstances. VP of Marketing must approve this type of RMA |
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3.3 | Non-conformance: |
• | Electrical: Parts fail functionally according to specifications. | ||
• | Visual/Mechanical: Parts fail visual/mechanical criteria. | ||
• | Failure Analysis: Customer requires a failure analysis report and may also require corrective / preventive actions. |
3.4 | RMA Responsibility |
3.4.1 | Quality Assurance is responsible for: |
• | Collecting information on RMA, evaluating data, performing failure analysis as needed and identifying the root cause in order to drive the corrective actions for improvements. | ||
• | Working closely with other departments to implement corrective actions as indicated. | ||
• | Entering initial data into RMA system, delivering final report to customer and closing RMA as appropriate in a timely manner. | ||
• | Initiate recall RMA request and close it in the system once the returned inventory meet the inspection criteria. | ||
• | Providing the status reports to assess RMA system, product issues and customer support to Atheros management team. |
3.4.2 | Inside Sales is responsible for evaluating RMA due to order entry errors and establishing corrective actions. | ||
3.4.3 | Inside Sales is responsible assignment of RMA number to all RMA returns. | ||
3.4.4 | System / Product Engineering are responsible for verifying customer reported failure mode(s) on non-conforming RMA units. |
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