EXHIBIT 10.11
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS. OMITTED INFORMATION HAS BEEN REPLACED BY [*].
SEAGATE TECHNOLOGY LLC
OEM PURCHASE AGREEMENT
(DISC)
AGREEMENT NO.: [*]
This OEM PURCHASE AGREEMENT ("Agreement") is made and entered into by and
between SEAGATE TECHNOLOGY LLC, ("Seagate"), with offices at 000 Xxxx Xxxxx,
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000-0000, and LSI LOGIC STORAGE SYSTEMS, INC.,
("LSI"), with offices at 0000 Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxx, 00000, a
wholly-owned subsidiary of LSI Logic Corporation, 0000 XxXxxxxx Xxxx., Xxxxxxxx,
Xxxxxxxxxx 00000.
This Agreement consists of this signature page, the attached Terms and
Conditions, the Product and Price List, as updated from time to time, the
Just-In-Time Delivery Agreement, and the Rebate Procedure.
This Agreement is effective as of the date signed by Seagate.
LSI has read, understands and agrees to the terms of this Agreement and the
undersigned is authorized to sign this Agreement on behalf of LSI and any of its
subsidiaries purchasing hereunder.
SEAGATE TECHNOLOGY LLC LSI LOGIC STORAGE SYSTEMS INC
A WHOLLY-OWNED SUBSIDIARY OF
LSI LOGIC CORPORATION
/s/ XXXXXXX X. XXXXXX /s/ XXXX X. XXXXXX
-------------------------------------------- --------------------------------------------
By By
Xxxxxxx X. Xxxxxx Xxxx X. Xxxxxx
-------------------------------------------- --------------------------------------------
Typed name Typed name
Sr. VP, General Counsel Director, Supply Chain Mgmt.
-------------------------------------------- --------------------------------------------
Title Title
19 September 2001 August 30, 2001
-------------------------------------------- --------------------------------------------
Date Date
SEAGATE TECHNOLOGY LLC
LSI
OEM PURCHASE AGREEMENT
TERMS AND CONDITIONS
1. TERM OF AGREEMENT. This Agreement will be effective as of the date of
Seagate's signature on this Agreement and continue thereafter until terminated
in accordance with this Agreement.
2. APPLICABLE PRODUCT. Under the terms of this Agreement LSI may purchase
disc drives identified in Seagate's Product and Price List ("Product(s)") as an
original equipment manufacturer. Additional Products may be added to the Product
and Price List by mutual agreement. Any software that is pre-installed or
included with Product, or sold as a separate item will be subject to a separate
License Agreement.
3. LIMITED USE.
3.1 In order to control the quality of Products and any after sales
service, LSI may use the Products solely for Integration into systems or
subsystems designed by LSI and or assembled for LSI for sale or lease in its
regular course of business. LSI contemplates that these systems or subsystems
will include hardware and software other than the Product and will, by an
objective examination of such factors as cost, pricing and system features,
represent a significant enhancement to and transformation of the Product. LSI
expressly agrees that it will use Product ordered only for this purpose. This is
not intended to prevent LSI from using non-integrated Products for the purposes
repairing, replacing or servicing existing systems or subsystems or providing
spare Products and upgrades.
3.2 If LSI has excess inventory of Product, LSI will give Seagate written
notification of the quantity and model numbers of the excess product, Seagate
will have two weeks from the receipt of the written notification to repurchase
some or all of the excess product [*] of the Product, if applicable. Additional
time may be granted upon mutual agreement. If Seagate chooses not to repurchase
the excess product within the time frame stated above, LSI is authorized to
resell Product.
3.3 In the event LSI sells Product separately without integration, in
breach of this Section, LSI must [*] the amount does not limit Seagate's right
to stop shipments, terminate this Agreement, and demand immediate payment of the
outstanding accounts receivable balance otherwise provided herein.
4. HIGH RISK ACTIVITIES. LSI acknowledges that Seagate's Products are not
designed for, and Seagate has no desire to enter the market for equipment used
in environments requiring fail-safe performance, such as in the operation of
nuclear facilities, aircraft navigation or communication systems, air traffic
control, life support machines, weapons systems, or any other environment in
which the failure of the Products could lead directly to death, personal injury,
or severe physical or environmental damage ("High Risk Activities"). Seagate
does not supply its Products for use in High Risk Activities, and does not wish
to expose itself to the risk of any loss, expense, cost, liability, litigation
and/or potential adverse verdict or judgment in relation to any use of its
Products in High Risk Activities. Accordingly, Seagate disclaims any and all
liability for High Risk Activities. If LSI elects to make and sell any products
for High Risk Activities using Seagate's Products, then LSI assumes all risk for
any such use of Seagate's Products. LSI agrees to defend and indemnify Seagate
against any and all claims arising out of any use of the Products in any High
Risk Activities.
5. PRICING. The prices for Product purchased hereunder will be listed on
the Product and Price List. Seagate may change Product prices from time to time
at its discretion on prior written notice to LSI. The parties will meet [*] for
the purposes of discussing price changes.
6. FORECAST. LSI will provide Seagate with a [*] forecast for its planned
Product purchases. This forecast will be submitted to Seagate on a [*] basis
and, unless otherwise mutually agree will consist of planned [*] purchases for
the next [*] and planned [*] purchases for the balance of the forecast.
7. PURCHASE ORDERS.
7.1 LSI may order Product by submitting written purchase orders to Seagate.
Purchase orders will contain, at a minimum; (i) Product description, (ii)
Product quantity, (iii) requested delivery dates,
2
(iv) Product pricing, (v) delivery address, and (vi) LSI's tax exemption
certificate number, if applicable. All orders are subject to acceptance by
Seagate, at its discretion.
7.2 All purchase orders will be exclusively governed by the terms and
conditions of this Agreement, notwithstanding any contrary terms and conditions
contained on any LSI purchase order or Seagate acknowledgment thereof, unless
otherwise mutually agreed in writing.
8. ELECTRONIC BUSINESS TRANSACTIONS. Purchase orders and other
transactions including but not limited to Order Acknowledgments, change orders,
invoices and forecasts may take place directly between the parties or through a
designated third party service provider, through EDI, XML, or other agreed upon
electronic means. Each party will be responsible for its respective costs
incurred in sending and receiving EDI or other electronic transmissions. All
electronic transmissions will be in accordance with the American National
Standards Institute ("ANSI"), UN/EDIFACT or other mutually agreed standards.
Specific transaction sets will be as agreed to by the parties. The parties agree
not to contest the enforceability or legal sufficiency of electronically
transmitted purchase orders, Order Acknowledgments or other documents placed
pursuant to this Agreement on the grounds that the orders and acknowledgments
fail to comply with the Statute of Frauds or similar laws requiring that
contracts be in writing and signed by the party, to be bound, including but not
limited to, Uniform Commercial Code Section 2-201 or its equivalent embodiment
under applicable state law. LSI and Seagate hereby agree that each will have no
liability and will hold each other harmless for any and all damages, costs and
expenses as a result of purchase orders, order acknowledgments, and other
transmissions which are erroneously transmitted between the parties as a result
of a malfunction, defect in the network's system, or due to any other cause
beyond the parties' reasonable control.
9. ALLOCATION. In the event of a shortage of any Products Seagate will use
its best commercial efforts to satisfy LSI's demand with available inventory,
subject to demand from other customers.
10. RESCHEDULING. LSI may reschedule any Product on order [*] provided
that Seagate receives written notice at least [*] prior to the scheduled ship
date. The new ship date may not be more than [*] from the originally scheduled
ship date. This section will not apply for inventory purchased under the
Just-In-Time Delivery Agreement.
11. CANCELLATION. LSI may cancel any unshipped and unrescheduled standard
Product on order [*], provided Seagate receives written notice at least [*]
prior to the scheduled ship date. LSI may cancel any unshipped and unrescheduled
non-standard Product on order [*], provided Seagate receives written notice at
least [*] prior to the scheduled ship date. For purposes of this Agreement
standard Product will mean product with no customer unique modifications. If LSI
cancels any order with less than the required notice, LSI will be liable to
Seagate for a cancellation charge [*] by Seagate in reselling the Product to
other customers. If LSI cancels the order with less than [*] notice, LSI must
[*] of the canceled order. This section will not apply for inventory purchased
under the Just-In-Time Delivery Agreement.
12. PAYMENT.
12.1 Payment terms are [*] from date of invoice, payable in U.S. dollars.
Overdue payments will be subject to a [*], whichever is less, until paid in
full.
12.2 The foregoing credit terms are extended by Seagate in its sole
discretion. To qualify for payment terms and a credit line, LSI must initially
provide Seagate's Credit Department with audited Annual Reports showing the
financial activity for the most recent and the previous fiscal year, and all
quarterly reports for LSI's current fiscal year. Thereafter, LSI must provide
Seagate's Credit Department with copies of its Annual Report and quarterly
statements within [*] of the close of each of its fiscal periods. LSI may
provide its annual and quarterly reports by posting the information on its web
site.
12.3 Seagate reserves the right to change the amount of LSI's credit line
at any time based on LSI's credit history and/or changes in its financial
condition. If LSI exceeds its credit line or fails to qualify for continued
credit terms, Seagate may, in its sole discretion, delay subsequent shipments or
require prepayments until Seagate determines that LSI is once again qualified to
receive credit terms.
3
13. TAXES. LSI will be responsible for all taxes resulting from this
Agreement (except Seagate's income taxes), unless LSI provides Seagate with tax
exemption documentation required by the applicable taxing authority.
14. DELIVERY TERMS.
14.1 Title. Title to the Products and all risk of loss or damage thereto
will pass to LSI upon delivery by Seagate to LSI FCA Seagate's designated
shipping dock. LSI will be the Importer of Record and, will be responsible for
all applicable duties and taxes associated with importation of the Product.
14.2 Time. Seagate will use commercially reasonable efforts to ship
Products from its dock by the shipment date shown in Seagate's order
acknowledgment, notwithstanding any different requested delivery date in LSI's
purchase order. Each shipment date will be binding on LSI unless Seagate
receives written notice from LSI rejecting it prior to that date. LSI assumes
the risk of shipping delays and losses.
15. PACKAGING AND INSURANCE. Seagate will ship Product in Seagate's
standard packaging, freight collect, unless otherwise agreed to in writing by
the parties. Shipments will be made by Seagate freight collect unless otherwise
specified by LSI and accepted by Seagate. Seagate is not obligated to provide
insurance covering any shipment, which remains the responsibility of LSI.
16. INTEGRATION TESTING. For a period of [*] from the date of shipment by
Seagate, LSI may conduct integration testing to confirm that the Product
conforms to any mutually agreed upon specifications. Product found to be
nonconforming ("DOA") within the initial [*] period may be returned by LSI to
Seagate for credit to LSI's account in an amount equal to the purchase price
paid. Product returned by LSI must be in Seagate standard packaging unless
otherwise agreed to by the parties. LSI will provide Seagate with a purchase
order for any replacement Product it elects to order. Seagate will pay for the
return of the Product to Seagate, provided a Seagate designated carrier is
utilized. Transportation charges associated with replacement Product shipped to
LSI will be borne by Seagate.
17. LIMITED WARRANTY.
17.1 Beginning on the date of shipment to LSI and continuing for the
periods specified in the Product and Price List ("Warranty Period"), Seagate
represents that the Products are new or, if they contain remanufactured or used
components, are the equivalent of new in performance and reliability and
warrants that each Product failing to function properly under normal use, due to
a defect in materials or workmanship or due to nonconformance to the agreed upon
specifications, ("Warranty Product") will be repaired, exchanged, or replaced
with equivalent or better Product at Seagate's option and expense. For personal
storage Product only, Seagate may also issue a credit to LSI pursuant to
Seagate's published Warranty Return for Credit Program for the Warranty Product.
This Limited Warranty extends to LSI only and is not assignable or transferable,
without prior written agreement of Seagate.
17.2 Repair, exchange or replacement of Warranty Product or Credit under
Seagate's Warranty Return for Credit Program is LSI's sole and exclusive remedy
under this Limited Warranty. In the event that Seagate is not able to repair,
exchange or replace the Warranty Product, or provide a credit under Seagate's
Warranty Return for Credit Program, or if the Limited Warranty is found to have
failed of its essential purpose the parties agree that LSI's exclusive remedy
and Seagate's sole liability in contract, tort or otherwise is the payment by
Seagate of actual damages in an amount not to exceed the amount paid for the
Warranty Product.
17.3 Seagate makes no representation, warranty or guaranty, express or
implied regarding the Products except this standard form of limited warranty
("Limited Warranty"). Seagate may in its sole discretion modify its Limited
Warranty at any time and from time to time, provided that any changes in the
warranty period shall only apply to Products not yet qualified by LSI. This
warranty is void if the defect is the result of accident, abuse, unauthorized
repair, modification or misapplication.
17.4 LSI must submit a warranty claim prior to the expiration of the
Warranty Period and will obtain a Return Material Authorization ("RMA") number
from Seagate prior to returning the Warranty Product freight prepaid. Seagate
will pay for transporting the repaired, replaced or exchanged Product to LSI.
Repaired, replaced or exchanged Product will be warranted for the repair
warranty period in effect as of the
4
date the repaired, exchanged or replaced Product is shipped by Seagate, or the
remainder of the original warranty, whichever is longer.
17.5 EPIDEMIC DEFECTS. An "Epidemic Defect" occurs when there are repeated
failures of the same component of an enterprise storage Product, arising from
the same cause, to the extent that the annualized failure rate due to that cause
exceeds [*] the specified AFR of the entire population of disc drives based on a
[*] calculation. If LSI believes a Product has an Epidemic Defect, LSI will
notify Seagate of all the facts regarding the Product, and Seagate and LSI will
work together to diagnose and verify the failures. If Seagate and LSI agree that
the failures have been properly diagnosed and that the failure count for that
cause is accurate, Seagate will meet with LSI to develop and agree upon a
mutually acceptable corrective action plan, which may include reasonable
compensation to LSI for mutually agreed upon expenses incurred.
17.6 WARRANTY DISCLAIMER. THE FOREGOING STATES THE SOLE LIABILITY AND
OBLIGATION OF SEAGATE ARISING OUT OF THIS WARRANTY AND EXCEPT AS SET FORTH IN
WRITING IN THIS AGREEMENT, SEAGATE MAKES NO PERFORMANCE REPRESENTATIONS,
WARRANTIES, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH
RESPECT TO THE PRODUCTS AND ANY SERVICES COVERED BY OR FURNISHED PURSUANT TO
THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY (A) OF
MERCHANTABILITY, (B) OF FITNESS FOR A PARTICULAR PURPOSE, OR (C) ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. THE PROVISIONS OF
THE FOREGOING LIMITED WARRANTY AND WARRANTY DISCLAIMER ARE REFLECTED IN THE
PRODUCT PRICES.
17.7 STORED DATA. LSI will be responsible for saving or backing up data
contained in any Product returned to Seagate for in-warranty or out-of-warranty
repairs or service. SEAGATE WILL HAVE NO RESPONSIBILITY FOR STORED DATA AND WILL
HAVE NO LIABILITY ARISING OUT OF ANY DAMAGE TO OR LOSS OF DATA WHILE THE PRODUCT
IS IN SEAGATE'S POSSESSION.
18. INDEMNIFICATION.
18.1 LSI INFRINGEMENT CLAIMS. Seagate agrees, at its expense, to defend
and indemnify LSI and its directors, officers and employees, in any suit, claim
or proceeding brought against LSI or such other parties, alleging that any
Product sold hereunder, under normal use, infringes a United States patent,
copyright, or trade secret right of the claimant provided that (a) Seagate is
promptly notified of the claim, given reasonable assistance from LSI, and
permitted the exclusive control of the defense, and (b) that LSI takes no action
which impairs Seagate's defense of the claim. Seagate agrees to pay damages and
costs finally awarded against LSI in any such suit by reason of any such
infringement, but Seagate will have no liability for settlements or costs
incurred without its consent.
18.1.1 Seagate Options. Should LSI's use of any Product be enjoined,
or in the event that Seagate desires to minimize its liability hereunder,
Seagate may, at its option and expense, either (a) substitute functionally
equivalent, non-infringing product for the infringing Product, (b) modify
the infringing Product so that it no longer infringes, but remains
functionally equivalent, or (c) obtain for LSI the right to continue using
the Product. If none of the foregoing is feasible, Seagate may require LSI
to return the Product and refund to LSI the purchase price (less reasonable
depreciation) and shipping charges paid by LSI. Seagate's performance of
any of the foregoing options will constitute LSI's sole remedy for any
damages suffered as a result of the infringement.
18.1.2 Exceptions. The foregoing indemnity will not apply to any
infringement arising out of (a) the use of Product in systems if the cause
of the infringement is the system itself or the combination of Product with
the system or any components therein not supplied or approved by Seagate;
(b) any Product modification not made by Seagate or made by another without
Seagate's written approval or recommendation; (c) the failure to promptly
effect Seagate furnished replacements or modifications; or (d) the use of
Product for purposes not contemplated by this Agreement or its intended use
or (e) the circumstances described in Section 17.2.
5
18.2 Seagate Infringement Claims. LSI agrees, at its expense, to defend
and indemnify Seagate and its directors, officers and employees, in any suit,
claim or proceeding brought against Seagate or such other parties, alleging that
any Product sold to LSI hereunder, infringes a United States patent, copyright,
or trade secret right if and to the extent the claimed infringement is based on
Seagate's compliance with LSI's specifications for the Product provided that (a)
LSI is promptly notified of the claim, given reasonable assistance from Seagate,
and permitted the exclusive control of the defense, and (b) that Seagate takes
no action which impairs LSI's defense of the claim. LSI agrees to pay damages
and costs finally awarded against Seagate in any such suit by reason of any such
infringement, but LSI will have no liability for settlements or costs incurred
without its consent.
18.3 LIMIT. THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATION OF
SEAGATE WITH RESPECT TO INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR
OTHER INTELLECTUAL PROPERTY RIGHT BY THE PRODUCT.
18.4 Mutual Indemnification. Without limiting the indemnifications for
infringement and high risk activities, each party (the "indemnitor") must
defend, indemnify and hold the other party, directors, officers, and employees,
harmless from any and all claims, losses, or damages (including reasonable
attorneys' fees and costs of litigation) resulting from indemnitor's own
breaches, acts, omissions or misrepresentations, regardless of the form of
action. This provision survives the termination of this Agreement.
19. INTELLECTUAL PROPERTY.
19.1 Under the terms of this Agreement, LSI does not acquire any right to
any of Seagate's trademarks, patents, service marks, or trade names or its
copyrights, commercial symbols, goodwill, or other form of intellectual or
commercial property of Seagate and may not use the property or rights in any
manner. LSI acknowledges that it has and will have no right to enhance or
reverse engineer the Product.
19.2 Software Products. LSI acknowledges that any software products
provided by Seagate hereunder ("Software Product") constitute only discrete
copies of software, the media in which it is stored, and related documentation,
as shipped to LSI. Nothing herein transfers any right, title or interest in the
software or any intellectual property rights to LSI. All software and
proprietary rights are subject to the terms and conditions of the software
license agreement included with each Software Product.
19.3 Copying, Modifications and Reverse Engineering. LSI may not copy,
modify, reverse engineer, decompile, enhance, or make derivative works of the
Products or Software Products. Any unauthorized modifications, derivative works,
and enhancements will belong to Seagate and LSI hereby assigns all rights in
them (including moral rights) to Seagate. LSI acknowledges that it has and will
have no right whatsoever, whether by the express terms of this Agreement or by
any course of conduct, to use, review, or access the source code for any
Software Products.
20. CONFIDENTIAL INFORMATION.
20.1 As used herein, "Confidential Information" means all non-public
information concerning Seagate or any affiliate or parent company of Seagate to
which LSI is provided access by virtue of this Agreement or its activities
hereunder, including without limitation, technical data, Product design and
development, sales information, quantity and kind of Products sold, prices and
methods of pricing, marketing techniques and plans, Product returns, unannounced
products, product and process information, and any other information which, if
disclosed to others, might be competitively detrimental to Seagate. Confidential
Information does not include any information which has been publicly
disseminated in writing by Seagate, which LSI can show it knew prior to
Seagate's disclosure, or which was rightfully received by LSI from a third party
without restriction.
20.2 During the term hereof and at all times thereafter, LSI must maintain
the Confidential Information with the same degree of care as it maintains its
own confidential information but at least a reasonable degree. LSI may not
disclose it to any third party, and may use it only as necessary to perform
hereunder. LSI must cause each of its officers, directors, employees, and agents
to restrict disclosure and use
6
of the Confidential Information in like fashion, and will be responsible for any
wrongful disclosure and use by any of them.
20.3 In the event any court or other authority orders LSI to disclose any
Confidential Information, LSI must use its best efforts to protect its
confidentiality and must promptly notify Seagate thereof to enable it to seek to
do so. At the termination of this Agreement, LSI must promptly return all
tangible Confidential Information to Seagate.
21. LIMITATION OF LIABILITY.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN THE SECTIONS ENTITLED LSI
INFRINGEMENT CLAIMS AND SEAGATE INFRINGEMENT CLAIMS; THE LIABILITY OF EITHER
PARTY UNDER THIS AGREEMENT TO THE OTHER PARTY, REGARDLESS OF THE BASIS OF
LIABILITY OR THE FORM OF ACTION, MAY IN NO EVENT EXCEED THE TOTAL PRICE PAID TO
SEAGATE BY LSI, NET OF ALL DISCOUNTS, AND REFUNDS, FOR THE PRODUCT DIRECTLY
CAUSING THE LIABILITY. IN NO EVENT WILL SEAGATE BE LIABLE FOR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE FOR LOSS OF DATA, NOR WILL EITHER
PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER
DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR
OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL
LIABILITY OF THE PARTIES ARISING OUT OF THIS AGREEMENT. THE FOREGOING ALLOCATION
OF RISK IS REFLECTED IN THE PRICES OF THE PRODUCTS. THIS PARAGRAPH WILL APPLY
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT OR THE FAILURE OF ANY
REMEDY OF IT ESSENTIAL PURPOSE.
22. PRODUCT DISCONTINUANCE. Seagate may discontinue manufacture of any
Product in its sole discretion and without any liability therefor, on terms and
conditions as it may determine. Seagate will provide LSI with [*] written
notification prior to the date for last time placement of purchasing orders by
LSI. This notice will also include the last dates for manufacturing and shipment
of product. Seagate will further use its best efforts to provide LSI with the
earliest information regarding product end of life, so that LSI can meet their
qualification requirements on new products.
23. TERMINATION.
23.1 Termination, No Cause. This Agreement may be terminated by either
party by providing [*] prior written notice to the other party, for any or no
cause. In case any applicable law requires a longer notice period to effect
termination, the longer notice requirement will apply.
23.2 Payment Breach. Except as otherwise provided herein, Seagate may
terminate this Agreement in the event LSI fails to cure any breach of a payment
obligation hereunder within [*] of receipt of written notice from Seagate
describing the breach.
23.3 Termination, Cause. Either party may terminate this Agreement at any
time if (i) a receiver is appointed for the other party or its property, (ii)
the other party makes an assignment for benefit of its creditors, (iii)
proceedings are commenced by or for the other party under any bankruptcy,
insolvency, or debtor's relief law, (iv) the other party liquidates or dissolves
its business or attempts to do so, (v) the other party assigns or purports to
assign this Agreement in breach of the provision herein, or (vi) the other party
commits a breach of a material obligation hereunder which by its nature is
incurable. LSI acknowledges without limitation that a breach of the Limited Use
section constitutes a material breach of this Agreement.
23.4 Effect of Termination or Expiration. In the event of a termination or
expiration of this Agreement, the provisions of this Agreement will continue to
apply to all purchase orders accepted by Seagate prior to the effective date of
termination or expiration, except for any purchase order, or portion thereof,
canceled pursuant to "Termination Cause." Termination or expiration of this
Agreement will not, however, relieve or release either party from making
payments that may be owing to the other party under the terms of this Agreement.
7
Subsequent to the effective date of any termination of this Agreement, Seagate
may in its sole discretion, cancel all purchase orders for Product which have
not been shipped.
24. DISPUTE RESOLUTION. The parties will attempt in to resolve any
dispute, claim or controversy arising out of or relating to this agreement
through good faith negotiation. Except as otherwise provided below, any dispute
the parties are unable to resolve between themselves will be submitted to final
and binding arbitration before the Judicial Arbitration and Mediation Services,
Inc. ("JAMS"), or its successor, under to the United States Arbitration Act. The
arbitration will take place in the County of Santa Clara,
California, and will
be conducted in accordance with the provisions of JAMS' Streamlined Arbitration
Rules and Procedures in effect at the time of filing of the demand for
arbitration. The arbitration will be before a single arbitrator, except that in
the event the amount in controversy exceeds one hundred thousand dollars
($100,000.00), the arbitration will be before three (3) arbitrators and the
decision of any two (2) of them will be binding. If not mutually agreed upon,
the arbitrator(s) will be selected according to JAMS rules from a list, prepared
by JAMS, of persons having expertise in the subject matter. Judgment upon the
award may be entered in any court having jurisdiction thereof. This provision is
self-executing, and in the event that either party fails to appear at any
properly noticed arbitration proceeding, an award may be entered against the
absent party notwithstanding its failure to appear.
Notwithstanding the foregoing: (1) any claim relating to any of the
parties' Confidential Information, the Trademarks, or other proprietary
technology or intellectual property will be governed by the laws of the State of
California and will not be determined by arbitration, but only by a court
located in Santa Xxxxx County,
California, to whose exclusive jurisdiction the
parties hereby consent; and (2) LSI acknowledges that any breach of its
obligations under this Agreement with respect to the proprietary rights or
Confidential Information of Seagate, will cause irreparable harm, and therefore,
Seagate will be entitled to equitable relief in addition to all other remedies
provided by this Agreement or available at law or in equity, in any court of
competent jurisdiction.
25. FORCE MAJEURE. Neither party will be liable to the other for its
failure to perform any of its obligations hereunder during any period in which
its performance is delayed by circumstances beyond its reasonable control
including, but not limited to earthquake, fire, flood, war, embargo, strike,
riot, inability to secure materials and transportation facilities, or the
intervention of any governmental authority. If the delaying cause continues for
more than [*], the party injured by the inability of the other to perform will
have the right upon written notice to the other to either (a) terminate this
Agreement pursuant to the Termination section herein or, (b) treat this
Agreement as suspended during the delay and reduce any commitment in proportion
to the duration of the delay.
26. EXPORT REGULATION COMPLIANCE. Transactions executed by both parties
under this Agreement will be subject to U.S. Governmental Regulations,
including, but not limited to, the U.S. Export Administration Regulations
(EARs). LSI warrants that it will comply with all applicable export, re-export
and foreign policy controls and restrictions imposed by the U.S. and the country
in which LSI is located. LSI will comply with all legal requirements to take the
necessary actions and precautions to ensure that its customers do not contravene
such laws or regulations. LSI agrees not to export, re-export or transship,
directly or indirectly, Product or Seagate's technical data to Country Xxxxxx
X0, X0, xxx X0 (xx defined in the EARs), Iran, Syria or any other country
hereafter restricted by the U.S. Government, except as authorized by the
appropriate U.S. governmental agencies. LSI may be subject to penalties for
transacting business involving Product or Seagate's technical data with any
customers that LSI knows or has reason to know are subject to denial of U.S.
export privileges, or engages, directly or indirectly in prohibited nuclear,
chemical, biological or missile technologies.
27. ASSIGNMENT. Neither this Agreement nor any right, interest or
obligation hereunder will be assigned by either of the parties without the prior
written consent of the other party, which consent will not be unreasonably
withheld. Consent will not be required for an assignment to an affiliate
controlling, controlled by, or under common control with the assigning party or
any successor in interest to that party. This Agreement will be binding upon and
will inure to the benefit of the parties and their respective successors and
permitted assigns.
8
28. RELATIONSHIP OF PARTIES. The relationship of Seagate and LSI
established by this Agreement is that of independent contractor. Nothing
contained in this Agreement may be construed to (i) give either party the power
to direct and control the day to day activities of the other, (ii) constitute
the parties as partners, joint venturers, co-owners or otherwise participants in
a joint or common undertaking, or (iii) allow LSI to create or assume any
obligation on behalf of Seagate for any purpose whatsoever. All financial
obligations associated with LSI's business are the sole responsibility of LSI.
29. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of
California, without regard to its
conflicts of laws rules. The United Nations Convention on Contracts for
International Sale of Goods does not apply to this Agreement.
30. ATTORNEY FEES. In the event of any litigation or arbitration
hereunder, the arbitrator or court will award costs and reasonable attorney's
fees to the prevailing party.
31. NOTICES. All notices and other communications hereunder must be given
in writing and delivered by prepaid overnight or international express delivery,
to the addresses set forth below or to any other addresses as the parties may
designate in writing. Notices are deemed given on receipt or attempted delivery
if receipt is refused.
For Seagate: Seagate Technology LLC
000 Xxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Attn: Corporate Contracts Dept., SV15A2
Phone: (000) 000-0000
Fax: (000) 000-0000
For LSI: LSI Logic Storage Systems, Inc.
0000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Director of Supply Chain Management
Phone: (000) 000-0000
Fax: (000) 000-0000
32. ENGLISH LANGUAGE. English is the authoritative text of this Agreement,
and all communications, arbitrations, and other adjudications hereunder must be
made and conducted in English. In the event this Agreement is translated, the
English language version will control.
33. ENTIRE AGREEMENT. This Agreement and its Exhibits constitute the
entire agreement of the parties with respect to the subject matter hereof, and
supersedes and replaces all prior oral or written agreements, representations
and understandings of the parties with respect to this subject matter. Except as
expressly provided for herein, this Agreement may be changed only by written
amendment signed by the parties.
34. SURVIVAL. Except as stated to the contrary herein, all obligations
which by their terms or nature survive termination of this Agreement will
continue thereafter until fully performed.
35. SEVERABILITY. The terms of this Agreement are severable. If any term
is held invalid, illegal, or unenforceable for any reason whatsoever, the term
will be enforced to the fullest extent permitted by applicable law, and the
validity, legality, and enforceability of the remaining terms will not in any
way be affected or impaired thereby.
9
EXHIBIT A
JUST-IN-TIME DELIVERY AGREEMENT
1. PURPOSE. The purpose of this Exhibit is to set forth the terms and
conditions by which Seagate and LSI agree to establish an on-site Just-In-Time
("JIT") delivery program.
2. JIT ESTABLISHMENT. Seagate will establish, a designated hub for disc
drives on-site at LSI's facility in Wichita, KS (the "Hub"). The inventory will
be established within an agreed period of time following receipt of LSI's
initial purchase order(s) for each configuration. Only Products in current
production at Seagate will be included in the Hub. Products may be added to or
deleted from this Exhibit upon mutual agreement.
3. SECURITY AND RISK OF LOSS. LSI will be responsible for maintaining
security for the Products at the Hub. LSI employees will receive Product into
the Hub, pull Product from the Hub via a demand-pull, and maintain inventory
accuracy for Seagate. LSI employees will send pull notifications, receipts into
the hub, and inventory quantities at Hub electronically within [*] of the
activity, but no later than [*]. LSI will bear the risk of loss or damage for
Products while in the Hub.
4. INSURANCE. LSI will maintain "all risk" insurance covering the full
invoice value of the Products in the Hub. The insurance must be endorsed to
cover loss or damage caused by (a) fire or explosion, (b) earthquake, lightning
or volcanic eruption, (c) malicious damage, and (d) theft. Seagate must be named
as an additional insured.
5. INVENTORY QUANTITY. The initial quantity of each configuration of
Product to be available in the JIT inventory will be equal to a [*] worth of
forecasted requirements. Subsequent JIT inventory quantities will be determined
by mutual agreement.
6. JIT PURCHASE ORDERS. LSI will provide Seagate with [*] worth of
purchase order coverage for each configuration and location. LSI's purchase
order coverage will be "blanket" in nature, and will specify a quantity and an
ending dock date, which will be the last day of a calendar quarter. LSI's
blanket purchase orders are for forecasting purposes only and may go up and down
as the forecast changes. Blanket POs will be adjusted quarterly or as necessary
for price changes or quantity changes exceeding original projected blanket
quantity.
7. RESCHEDULING. LSI may reschedule delivery of Products as needed to pull
Product as needed to support current forecast. Seagate will adjust replenishment
of inventory to current forecast.
8. INVOICING. All Products will be invoiced at the pricing in effect at
the time of shipment. Payment will be made in full within [*] from the date of
invoice.
9. INVENTORY REPLENISHMENT. Seagate will use its best commercial efforts
to replenish the JIT inventory following inventory depletion.
10. PRODUCT/PROGRAM DISCONTINUANCE/CANCELLATION. If (a) LSI discontinues
its program, (b) Seagate announces discontinuance of any Product, or (c) LSI's
forecasted demand for a Product decreases such that LSI will not consume the
current JIT inventory plus Product in transit, Seagate will attempt to sell the
excess Product to other buyers and [*] for Seagate to store the Product and
reconfigure it for other buyers. If Seagate determines the Product cannot be
sold to other buyers, LSI will purchase all applicable Product remaining in the
JIT inventory plus the Product in transit [*] of LSI's current forecast.
11. TERMINATION WITHOUT CAUSE. Either party may terminate this Exhibit
without cause by providing [*] prior written notice to the other. If LSI
terminates without cause, LSI agrees to purchase all Product remaining in the
JIT inventory prior to the effective date of the termination.
12. TERMINATION WITH CAUSE. If either party is in default of any of the
provisions herein and fails to cure the default within [*] after written notice
by the other party, the party giving notice may immediately terminate this
Exhibit; however, neither party will be held responsible for failure to fulfill
its obligations hereunder due to causes beyond its control.
13. ORDER OF PRECEDENCE. In the event of a conflict between the terms and
conditions of this Exhibit and the LSI Agreement this Exhibit will control.
SEAGATE TECHNOLOGY LLC
LSI
OEM PURCHASE AGREEMENT
EXHIBIT B
REBATE PROCEDURE
1. PURPOSE:
LSI has licensed to the third party contract manufacturing companies listed
on Attachment 1 (the "Licensee(s)"), the right to manufacture on behalf of LSI.
The Parties agree to implement a Rebate Procedure (Procedure) as detailed below.
2. PRODUCT:
The Procedure set forth herein will apply to Seagate disc drives listed on
the attached Attachment 1 which are sold to Licensee at the price agreed to
between Seagate and Licensee (Product).
3. DETAILS OF PROCEDURE:
Following the purchase of Seagate disc drives by Licensee, Seagate and LSI
agree to utilize the following procedure to provide LSI with rebate credit for
the difference in the negotiated LSI price and Licensee price.
3.1 Seagate will be responsible for providing shipment reports in
spreadsheet format to LSI electronically by the end of the first week of each
calendar month for the preceding month. The reports will contain a list of LSI
part numbers, Seagate model and description, net quantity shipped (purchases net
of any returns), unit price invoiced to Licensee, and the total amount of LSI
rebate credit.
3.2 LSI will reconcile the Seagate shipment report against a receipt report
provided to LSI by Licensee. In the event that LSI identifies a discrepancy
between the shipment and receipt reports, LSI will provide to Seagate a written
report detailing the discrepancies including information sufficient for Seagate
to confirm the discrepancies. If an adjustment is required as a result of the
discrepancy, it will be paid within [*] of confirmation.
3.3 Seagate will prepare a credit memorandum on a [*] basis for the
difference between the current LSI price and the current Licensee price at the
time that the drives shipped to Licensee, unless otherwise agreed between
Seagate and LSI. Seagate will verify that Licensee is current in payments to
Seagate before issuing the rebate credit.
SEAGATE TECHNOLOGY LLC
LSI
OEM PURCHASE AGREEMENT
EXHIBIT B
REBATE PROCEDURE
ATTACHMENT 1
1. Designated Contract Manufacturers:
- [*]
2. List of Product eligible for rebate:
2
Table 1
SEAGATE TECHNOLOGY LLC PRODUCT AND PRICE LIST 8/17/01
LSI PURCHASE AGREEMENT
EXHIBIT A
ATTACHMENT 1
PRICE
APR/MAY/JUNE
SEAGATE MODEL SEAGATE P/N LSI P/N PACK QTY. SKID QTY. DESCRIPTION 2001
------------- ----------- -------- --------- --------- ----------- ------------
CURRENT HUB PRODUCTS...........................
[*]............................................
CURRENT NON HUB PRODUCTS.......................
DISCONTINUED PRODUCTS..........................
NEW PRODUCTS...................................
[*]............................................
PRICE PRICE-BUDGETARY
JULY/AUG/SEPT. OCT./NOV./DEC.
SEAGATE MODEL 2001 2001
------------- -------------- ---------------
CURRENT HUB PRODUCTS...........................
[*]............................................
CURRENT NON HUB PRODUCTS.......................
DISCONTINUED PRODUCTS..........................
NEW PRODUCTS...................................
[*]............................................
3
AMENDMENT NO. 1
TO THE
OEM PURCHASE AGREEMENT
AGREEMENT NO. [*]
This Amendment No. 1 to the
OEM Purchase Agreement entered into by Seagate
Technology LLC, ("Seagate") and LSI Logic Storage Systems, Inc. ("LSI").
Seagate and LSI entered into an
OEM Purchase Agreement dated September 19,
2001, identified as Seagate Agreement No. [*] (the "Agreement"). The parties now
wish to amend the Agreement as follows:
1. In the Agreement, Section 6.0 "Forecast," the following sentence is
added to the end of the section:
"[*] prior to the end of each Seagate fiscal quarter, Seagate and
LSI will mutually agree upon the quantity of Product remaining to be
shipped by the end of the current quarter."
2. In Exhibit A, Section 8.0 "Invoicing." The last sentenced of the
section is deleted and replaced with the following:
"All Product will be invoiced at the pricing in effect at the time
of shipment. Payment will be made in full within [*] from the date of
invoice."
In all other respects, the Agreement remains in effect.
SEAGATE TECHNOLGY LSI LOGIC STORAGE SYSTEMS INC
A WHOLLY-OWNED SUBSIDIARY OF
LSI LOGIC CORPORATION
/s/ XXXXX XXXXXX-XXXXXX /s/ XXXX X. XXXXXX
--------------------------------------------- ---------------------------------------------
By By
Xxxxx Xxxxxx-Xxxxxx Xxxx X. Xxxxxx
--------------------------------------------- ---------------------------------------------
Print Name Print Name
Executive Director Director, Supply Chain Management
--------------------------------------------- ---------------------------------------------
Title Title
1-21-02 01/4/02
--------------------------------------------- ---------------------------------------------
Date Date
AMENDMENT NO. 2
TO THE
OEM PURCHASE AGREEMENT
OEM AGREEMENT NO. [*]
AMENDMENT NO. [*]
This Amendment No. 2 to the
OEM Purchase Agreement entered into by Seagate
Technology LLC, ("Seagate") and LSI Logic Storage Systems, Inc. ("LSI").
Seagate and LSI entered into an OEM Purchase Agreement dated September 19,
2001, identified as Seagate Agreement No. [*] (the "Agreement"). Seagate and LSI
entered into an Amendment No. 1 to the agreement on January 21, 2002. The
parties now wish to further amend the Agreement as follows:
1. LOCK IN PERIOD. In the Agreement, Section 6.0 "Forecast," the last
sentence was added as part of Amendment No. 1. The last sentence is deleted
and replaced with the following:
"[*] prior to the end of each Seagate fiscal quarter, Seagate and
LSI will mutually agree upon the quantity of Product remaining to be
shipped by the end of the current quarter."
2. JIT HUB EXHIBIT. The existing Exhibit A to the OEM Agreement is
deleted in its entirety and replaced with the new Exhibit A, attached
hereto.
In all other respects, the Agreement remains in effect.
SEAGATE TECHNOLOGY LLC LSI LOGIC STORAGE SYSTEMS INC
A WHOLLY-OWNED SUBSIDIARY OF
LSI LOGIC CORPORATION
/s/ XXXXX XXXXXX-XXXXXX /s/ XXXX X. XXXXXX
--------------------------------------------- ---------------------------------------------
By By
Xxxxx Xxxxxx-Xxxxxx Xxxx X. Xxxxxx
--------------------------------------------- ---------------------------------------------
Print Name Print Name
Executive Director, Legal Director, Supply Chain
--------------------------------------------- ---------------------------------------------
Title Title
1-15-04 1-31-04
--------------------------------------------- ---------------------------------------------
Date Date
2
