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CONFIDENTIAL TREATMENT REQUESTED. EXHIBIT 10.11
CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION
AGREEMENT
This Agreement including all Schedules is entered on December 18th, 1995 by and
between
ATL PRODUCTS, INC.
a corporation organized under the laws of the State of California with its
principal place of business at
0000 XXXXX XXXXXXXXXX XXXXXX
XXXXXXX, XXXXXXXXXX 00000
XXX
- hereinafter known as "ATL" -
and
HEWLETT-PACKARD GMBH
LOCAL PRODUCTS ORGANIZATION (LPO)
a corporation organized under the laws of Germany with its principal place of
business at
HERRENBERGER XXXXXXX 000
00000 XXXXXXXXXX
XXXXXXX
- hereinafter known as "HP" -
on the sale of Hardware-Products
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DEFINITION OF TERMS
The products specified in Schedule 1 (HARDWARE) are understood by the parties to
mean all Products.
The parties understand SUPPORT as meaning remedying defects in the HARDWARE and
adjusting it to suit amended operating systems. This term does not
cover amendments (FURTHER DEVELOPMENTS) leading to a fundamental
extension of the function of the Product and thus to a new version
thereof.
The parties understand FURTHER DEVELOPMENTS as meaning all amendments,
alterations and extensions to the HARDWARE which are not covered by the
SUPPORT of the HARDWARE.
The parties understand VALUE ADDED PRODUCTS as the combination of the Library
with Storage Management Software.
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RELATIONSHIP
ATL develops and manufactures Automated Tape Libraries as listed in Schedule 1,
(hereinafter known as "Products") and desires to offer said Products for sale to
HP. HP has recognized capabilities in adding value to these Products and re-
selling them to Dealers, Distributors and Customers and desires to have the
right to purchase such Products from ATL.
To this end, and subject to all the terms and conditions of this Agreement, ATL
agrees to use reasonable efforts to sell to HP on a non-exclusive basis and HP
agrees to purchase from ATL the Products listed in Schedule 1.
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1. SUBJECT-MATTER OF THE AGREEMENT
ATL undertakes to supply HP with HARDWARE as specified in Schedule 1
(hereinafter referred to as "Products") throughout the duration of this
Agreement subject to the terms hereof. HP shall distribute these
Products via dealers, distributors or to customers.
2. DISTRIBUTION RIGHTS
2.1 ATL grants to HP the non-exclusive right to distribute the contractual
Products set forth in Schedule 1 and any future Products which may be
added to Schedule 1 by mutual agreement. This shall include the right
to translate, reproduce, disseminate, hire, lease, present, publish or
print ATL-sales literature in any format or language, at HPs expense,
but HP is under no obligation to do so. ATL shall not be responsible or
liable for the accuracy of any such literature execept such literature
in original form from ATL.
2.2 HP shall be entitled to transfer to HP's authorized dealers and
distributors a non-exclusive and non-transferable right to distribute
the contractual Products provided that the dealers and distributors are
located and selling VALUE ADDED PRODUCT in Germany and Switzerland.
Approved Resellers will be certified by written mutual Agreement.
2.3 HP shall be entitled to distribute the Products as "Distributed by
Hewlett-Packard under Product-No. "AOD ....".
2.4 HP shall buy the Products specified in Schedule 1 as OEM Products
which can be sold with the HP logo.
3. CHARACTERISTICS OF THE PRODUCTS, PRODUCT AMENDMENTS, TESTING AND
ACCEPTANCE OF THE PRODUCTS
3.1 The technical properties, capabilities and specifications of the
contractual Products are described in Schedule 1 hereof.
ATL is obliged to supply HP with all new Products specified in Schedule
1 as soon as such Products are available for distribution in accordance
with HPs purchase order, the ATL committed ship date(s) and subject to
the terms of this Agreement.
Similarly, ATL undertakes immediately to provide HP with all new
Product enhancement information, including information on updates,
extensions, amendments and new developments that may become
commercially available to all ATL customers with respect to the
Products indicated hereinabove specified in Schedule 1.
3.2 Products developed by ATL subsequent to the execution of this Agreement
that ATL makes commercially available to all of ATL's customers shall
be added to this Agreement by mutual Agreement.
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3.3 Prior to delivery, ATL shall conduct an acceptance test at ATLs plant,
or ATL authorized service provider, on each Product, FRU or Repair
shipped. A complete record of inspeetion and tests performed on each
Product, FRU or Repair shall be kept by ATL, or ATLs authorized service
provider, for twelve (12) months from date of shipment. Upon HPs
request and at HPs expense if any, ATL shall provide HP with a
dublicate copy of such inspection and tests within fifteen (15)
business days of such a request,
3.4 HP may also conduct its own testing at its own facilities, at HPs own
expense, to confirm the Product, meets the Product specification or
applicable acceptance criteria for a FRU or Repair. Products, FRUs and
Repairs shall be deemed accepted by HP unless written notice, of
acceptance test failure is provided to ATL within thirty (30) days
after shipment of the Product, FRU or Repair is shipped.
4. ORDERS / DELIVERY
4.1 ATL shall supply HP with the contractual Products in accordance with
the LPO Delivery Standard set forth in Schedule 2.
4.2 HP may cancel an order in its entirety or in part or alter the delivery
date. In the event HP (1) cancels all or any part of any order; (2)
fails to meet any obligation hereunder, causing cancellation or
rescheduling of any order or portion thereof; (3) requests a
rescheduling of scheduled Products and the request is accepted by ATL;
or (4) requests a configuration change causing rescheduling of
scheduled Products, and the request is accepted by ATL; HP agrees to
pay ATL the following cancellation/reschedule charges:
Cancellation or Reschedule Cancellation or Reschedule
Notice is received (% of Product Price)
* [ ] [ ]
* [ ] [ ]
* [ ] [ ]
* Product may be rescheduled one time for up to [ ] prior written
notice.
5. PAYMENT
5.1 All payments required by this Agreement are stated and shall be made in
United States Dollars. Payments shall be sent to ATL at the return
address printed on the ATL's invoice and shall be deemed made only upon
receipt by ATL at that address.
5.2 Amounts owed to HP due to rejections of Product, or discrepancies on
paid invoices shall be fully credited against future invoices payable
by HP.
* CONFIDENTIAL TREATMENT RQUESTED FOR REDACTED PORTION.
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5.3 HP shall not have the right at any time to set off any amount owed from
ATL to HP or its subsidiaries or affiliates against any amount payable
by HP pursuant to this Agreement and/ or any Purchase Order issued
hereunder.
5.4 The prices of the Products are stipulated in Schedule 3.
Payments are payable within 30 days of the date of the invoice; however
not earlier than the receipt date of the Product.
5.5 Sales tax at the prevailing statutory rate is payable on all invoice
amounts subject to sales tax. The amount of sales tax due must be
indicated in ATL's invoice.
5.6 ATL reserves the right to change pricing for new orders upon 60 days
written notice to HP
6. WARRANTY/LIABILITY
6.1 For the time periods set forth hereafter, and as qualified in this
Agreement, ATL gives he following limited warranty that, all Products,
FRUs or Repairs shall be free from defects in material, workmanship,
and design, shall conform to applicable specifications, drawings,
samples, descriptions and specificetions set forth in Schedule 1
referred to in this Agreement shall comply with the latest approved
technical guidelines, as well as with the pertinent safety
recommendations (CE, VDI) and laws shall be free of all liens and
encumbrances and shall not infringe or any third party's Intellectual
Property interest.
6.2 The time periods for this limited warranty are as follows: (i) Products
and first time shipped or new FRUs - for twelve (12) months from date
of shipment by ATL; (ii) for exchanged or replaced FRUs and (ii)
Repairs- for either (a) six (6) months from the later of the date of
shipment or date of repair or (b) the balance of the term of the
original warranty for Products or FRU repaired or replaced, whichever
is sooner. If the repair or replacement has not been shipped within 30
calendar days plus 5 (five) calendar days HP shall be entitled to
rescind the FRU or the demand reduction of the price.
6.3 During the term of this limited warranty, ATL shall, within thirty (30)
days after receipt of defective Products or FRUs, at its option, either
repair or replace any defective Products or FRUs subject to this
limited warranty at no additional charge to HP. Replacement Products or
FRUs shall be fumished on an exchange basis, and may be either repaired
or new.
This limited warranty does not apply to products, FRUs or repairs which
have been damaged or rendered defective: (i) as a result of accident,
misuse or abuse; (ii) by the use of parts not approved or manufactured
or sold by ATL, or mot conforming to ATL's specifications; (iii) by
modification without the written permission of ATL; or (iv) as a result
of service by anyone other than ATL, an authorized ATL servicing
center, or an certified ATL service provider to perform such work.
6.4 Any damage claims of HP against ATL as well as the persons it employs
in performing its legal obligations and ATL legal representatives -
irrespective of their legal cause - in
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particular for defects of the contractual Products, impossibility or
delay of delivery for reasons within ATL control, breach of this
Agreement or of obligations prior to the conclusion of this Agreement
as well as for tort shall be excluded. This does not apply if and
inasmuch as in cases of willful action, gross negligence, the lack of
warrented qualities or breach of contractual obligations which are of
major importance for the contractual purpose such liability is
compulsory.
Compensation for financial demages, e.g. loss of production, loss of
profits, shall be limited to the demage which is typical for the
Agreement and foreseeable by ATL.
Any claims under the Product Liability Act shall remain unaffected by
the provisions in the preceding paras. (1) and (2).
7. QUALITY ASSURANCE
7.1 ATL shall maintain a quality management system conforming to intent of
IS09000 (see also Schedule 5) and shall produce and inspect contractual
products described in Schedule 1 hereunder with the rules of such
qualitiy management system. ATL shall confirm at once that these
requirements are compatible with the quality management system.
7.2 ATL shall perform a sample inspection of each lot of each part number
received at ATL prior to the part going to production. ATL shall
maintain records of such inspection.
This sample inspection shall include production or testing tools, and
other goods received from suppliers for production or quality
assurances of the Products hereunder.
7.3 ATL shall keep records of implementation of the aforementioned quality
assurance measures, in particular regarding measurements and inspection
results, and store such records, as well as any samples of the
contractual Products, in an orderly fashion. ATL shall allow HP to view
the records to the necessary extent and shall provide copies of the
records and any samples with 10 days advance written notice.
7.4 ATL shall enable HP to verify implementation of the aforementioned
quality assurance measeures at reasonable intervals. To this end ATL
shall grant HP a reasonable degree of access to ATL's place of business
after prior agreement of a time, and shall provide a qualified employee
for support during such access. Viewing of manufacturing processes
requiring secrecy and other business secrets may be refused.
7.5 Before changing manufacturing processes, materials, or supplied parts
for the contractual products, changes of manufacturing locations, and
also before changing processes or facilities for inspection of the
contractual Products or other quality assurance measures, ATL shall
notify HP sufficiently in advance so that HP can examine whether such
changes might have negative effects. This notification is not required
if ATL (at ATL's sole discretion) can consider such effects to be ruled
out after careful examination.
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7.6 If ATL detects an increase in the difference between actual
characteristics from target characteristice (drops in quality), he
shall inform HP at once of this and of planned corrective measure.
7.7 By marking the contractual Products or, if this is impossible or
impractal, by other suitable measures, ATL shall assure that ATL can
immediately determine what other contractual Products might be affected
in case a defect occurs in the contractual Products. ATL shall inform
HP of his ATL marking system or other measures in such a way as to
enable HP to make its own determinations to the necessary extent.
8. SUPPORT/COOPERATION
8.1 ATL shall conduct internal HP training sessions for HP employees
without any additional charge. During the course of this training, the
HP employees will receive instruction on the Products. ATL shall
provide the necessary knowledge regarding the installation, use and
distribution of the Products during this training and also knowledge on
first-level support. The parties shall reach mutual agreement on the
number of days of training, on the dates and location thereof.
8.2 ATL shall provide HP with a telephone support service for the
distribution of the Products during normal business hours. Each party
hereto shall nominate respective contact persons within 2 weeks of the
execution of this Agreement. Furthermore, ATL shall provide HP
customers with the same technical support as ATL gives its own
customers.
8.3 At HP's request, ATL shall effect the implementation, (installation of
the Products and integration, test run, training of ATLs Products only,
which does not include Storage Management Software or other peripheral
items that may be added to the Product of the operating staff and
users) and the acceptance procedure for the Products on HP's customer's
premises on behalf of HP. Remuneration shall be effected in accordance
with ATL's pricelist generally prevailing.
8.4 In addition, in order to guarantee smooth cooperation, both parties
hereto shall nominate contact persons within 14 days of the execution
of this Agreement, who are responsible for marketing and technical
customer service. These individuals shall meet regularly to agree and
coordinate all of the necessary activities.
9. PRODUCT CHANGE, SUPPORT AND NEW PRODUCTS
9.1 ATL shall give written notice to HP, in the form of notification of
engineering change, of any changes to the Products prior to
implementation that affect fit, form or function. HP shall give written
notice to ATL of its approval or disapproval of the change in writing
within thirty (30) days of the date ATL gives such notice. If written
notice is not received, ATL shall consider the change acceptable.
9.2 ATL may from time to time make compatible changes or modification to
the Products that do not effect fit, form, or function, and that are
compatible and interchangeable with
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and shall not require the retrofit of Products previously delievered.
If ATL makes such modification, ATL shall give notice to HP at least 30
days before ATL begins delivering to HP any Product containing such
modification, describing the changes and updating the parts list.
9.3 ATL shall provide HP with technical support by telephone twenty four
(24) hours a day three hundred sixty five (365) days a year. HP may
request on site technical support and ATL shall dispatch the next
available Service Engineer provided HP pays ATL's standard rate for the
Service Engineer's time, portal to portal, and all out of pocket
expenses including transportation within thirty (30) days after the
date of ATLs invoice of such services.
9.4 HP shall be responsible for offering maintenance on the Products it
sells, or otherwise provides, to end users.
HP shall maintain records regarding maintenance performed on the
Product. Upon mutual agreement, HP shall provide ATL, at no charge, a
duplicate copy of all maintenance reeords. These records shall be used
by ATL for the purpose of understanding Product performance.
9.5 If, during the purchase period or extended purchase period, if any, ATL
discontinues producing or making available any Products, FRUs or
Repairs, ATL shall provide HP with six (6) months prior written notice
of such discontinuation and shall use reasonable efforts to permit HP
to buy as much Products and FRUs as HP reasonably believes it shall
need.
9.6 Upon expiration or termination of this Agreement, ATL shall sell and
repair FRUs for five (5) years after the date of the last Product
manufactured or for as long as the Products and FRUs are made available
to any of ATL's other customers, wichever is later. Prices shall be at
ATL's then current prices delivery is subject to availability.
10. EXCHANGE OF PRODUCTS
10.1 ATL shall keep the requisite amount of spare parts available throughout
the term of this Agreement and for a period of up to 5 years following
delivery of the last Product manufactured.
10.2 Sections 2, 3, 4, 6, 7, 8 and 11 shall apply analogously to spare
parts.
11. INTELLECTUALL PROPERTY RIGHTS
11.1 ATL shall own the entire right, title and interest in and to all
intellectual property rights relating to the design of the Product that
are or have been designed and developed exclusively by ATL. ATL
warrants that it is the sole owner of rights in each of the Products
and associated documentation described herein, including all portions
thereof, and that such ownership is free of any and all liens,
encumbrances, restrictions, settlements, judgements or
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adverse claims. ATL warrants that it has full power and authority to
grant HP the rights granted herein including the right to use,
distribute each Product and associated documentation. ATL warrants that
the Products do not violate or infringe any patent, copyright, trade
secret of any third party and that ATL is not aware of any facts upon
which such a claim for infringement could be based.
11.2 ATL shall indemnify, defend and hold harmless HP from and against any
and all, expenses and damages without limitation reasonable attorneys
fees, with respect to any claim against HP alleging that material in
the form sold by ATL, or any part thereof, infringes any patent,
copyright, trademark, mask work, or violates a trade secret of a third
Party. ATLs obligation pursuant to this Section 11 are conditions: HP
shall give notice to ATL promptly in writing of such a claim and ATL
shall have the authority to assume sole defense thereof through its own
counsel and to compromise or settle any suits so far as this may be
done without prejudice to the right of the HP to continue to use the
materail, so purchased. If an injunction against HP's or HP's end
users, sale, lease, license, or other distribution of the material or
any part thereof results from such a claim (or if HP reasonably
believes such injunction is likely), ATL may in order of precedence:
(1) procure the right to continue the use of the same for the HP; or
(2) replace the same with non-infringing product, or (3) modify said
material so as to be non-infringing; or, if none of the foregoing
(1),(2), or (3) are deemed reasonable feasible, (4) take back the
infringing material and refund the purchase price less a depreciation
deduction equal to twenty percent (20%) of the purchase price for each
year since the date of shipment.
11.3 This section states the entire liability of ATL for Intellectual
Property Infringement. The indemnification provisions of this Section
shall not apply to any infringement arising out of the use in systems
if the cause of such infringement to be the system itself or components
of the system not supplied by ATL; or for purposes not contemplated by
this Agreement.
11.4 HP shall defend indemnify, defend and hold harmless ATL from and
against any and all costs, expenses and damages, including without
limitation reasonable attorneys fees, with respect to any claim
alleging that HP's end product which incorporates ATL's material (but
not ATL's Material alone) infringes any patent, trademark, copyright,
mask work or violates any trade secret of a third party, provided that
ATL promptly notifies the HP in writing and provides information and
reasonable assistence (at HP's expense), and that HP is permitted to
direct the defense of the suite or proceeding. Section 11.2 and 11.3
shall apply analogously.
11.5 HP shall be entitled to use the program classification which ATL uses
for the Products either alone or together with the HP Logo.
Furthermore, following Agreement with ATL, HP shall be entitled to
chose another program classification if the name of the Product should
be otherwise protected.
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12. CONFIDENTIALITY
12.1 Except as required by law and with prior written notice, each party
agrees not to disclose information which the other party desires to be
treated as confidential to any person(s) excepted employees or
subcontractors who necessarily must have such information to perform
this Agreement. Such confidential information must be clearly
designated in writing as confidential. Each party will protect the
confidential nature of such information by using the same degree of
care as it takes to preserve and safeguard its own confidential
information. Such obligations of confidentiality will survive the term
of this Agreement and for two (2) years after its termination or
expiration.
12.2 Neither party will be required to treat as confidential any information
which is publicly available, independently developed by the other party
or rightfully obtained from third parties.
13. TERM AND TERMINATION OF THE AGREEMENT
13.1 This Agreement shall become effective on December 20th, 1995 and shall
run for an initial term of one year. It shall be automatically renewed
by a further period of one year unless one of the parties hereto has
given written notice of termination three months prior to the
expiration hereof at the latest.
13.2 The extraordinary termination of this Agreement is also possible if the
parties will not agree about the Support-Agreement for the Products
within 3 months after signing this Agreement. Either Party may
terminate this Agreement for cause if the other Party fails to comply
with any material covenant or provision of this Agreement, and does not
cure such failure within thirty (30) days after written notice is given
to such Party. Provided, however, that if such curable failure cannot
be cured within 30 days, this Agreement may not be terminated if the
now-complying party begins to cure such failure within 30 days and
thereafter diligently seeks to complete such cure.
Either Party may terminate this Agreement if a significant change in
ownership occurs and if the other Party reasonable deems the change to
be a material and adverse to its interests.
13.3 In addition to the statutory rights of withdrawal, HP shall be entitled
to a contractual right of withdrawal, ifATL does not meet its
obligations under Section 11.2 (Intellectual Property Rights) within a
reasonable time frame.
13.4 In case of Liability hereof, the rights and obligations of the
provisions contained in Sections (Warranty/Liability), 9 (Product
Change, Support and New Products), 10 (Exchange of the Products), 11
(Intellectual Property Rights) and 12 (Confidentiality) as well as the
rights to continue to use the Products third parties have already been
allowed to utilize and HP's requisite distribution rights for the
SUPPORT of this installed base of the Products specified in Schedule 1
shall remain in full force and effect.
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14. MISCELLANEOUS
14.1 No verbal ancillary agreements have been concluded in addition to this
Agreement. In order to be valid, alterations and amendments hereto must
be confirmed in writing by authorized officers of HP and ATL and
require an express reference to the fact that they constitute an
alteration or amendment to this Agreement. This written form
requirement may only be waived in writing.
14.2 This Agreement shall not restrict either HP nor any other corporation
within the Hewlett-Packard corporate group from developing or acquiring
any similar or competitive products in any way whatsoever.
14.3 The parties hereto undertake to replace any invalid or unequivocal
provision contained herein by a valid or unequivocal provision
constituting the closest possible equivalent to the economic purpose of
this provision. This shall not affect the validity of the remaining
provision.
14.4 This Agreement is the complete and entire understanding between the
Parties on this subject matter and supersedes all prior agreement,
proposals, representations, statements, or understandings,wether
written or oral on this subject between them. The provision of this
Agreement may be amended or waived only by a writing executed by the
autorized representatives of the parties hereto.
14.5 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 othe occasion.
14.6 Each Party, including its servants, agents, and employees, are
independent contractors and not an agent or employee of the other.
Without limiting the generality of the foregoing, neither Party is
authorized to represent or make any commitments on behalf of the other,
and both Parties expressly disclaim any liability therefore.
14.7 The headings of the sections in this Agreement are included for
convenience only and are not to be used in construing or interpreting
this Agreement.
14.8 ATL reserves the right to fulfill the requirements of any purchase
order placed pursuant to this Agreement and invoice for such orders
through an affiliate company of ATL.
14.9 In the event of any dispute or litigation between the Parties with
respect to this Agreement, the prevailing Party shall be entitled to
recover its resonable attorneys fees and costs in addition to any other
relief to which it is found entitled.
14.10 The Parties shall attempt in good faith to resolve any controversy or
claim arising out of or relating to this Agreement promptly by
negotiations between executives of the Parties.
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If a controversy or claim should arise one Party shall give written
notice to the other Party of such controversy or claim (the Invoking
Partys), the Parties shall use needed, at mutually convenient times and
places, between negotiators for the Parties at the following successive
management levels, each of which shall have a period of allotted time
as specified below in which to attempt to resolve the dispute:
Level ATL HP Allotted Time
First Contract Manager Business Manager 10 Business Days
Second Division VP Division VP 10 Business Days
Third Corporate Officer Corporate Officer 30 Days
The allotted time for the first level negotiator shall begin on the
effective date of the Invoking Party's Notice.
If a resolution is not achieved by negotiators at any given management
level at the end of their allotted time, then the allotted time for the
negotiators at the next managment level, if any, shall begin
immediately.
14.11 Any notice given under this Agreement shall be written. Written Notice
shall be sent by certified mail, postage prepaid, return receipt
requested, or by any other overnight delivery service that delivers to
the sender. Any facsimile notice must be followed within three (3) days
by Written Notice. All Written Notices shall be effective when first
received by HP at its address first set forth above, and by ATL at the
following addresses:
ATL Products, Inc. Hewlett - Packard GmbH
0000 Xxxxx Xxxxxxxxxx Xxxxxx Local Product Organisation
Xxxxxxx, Xxxxxxxxxx, 00000 Herrenberger Stra(beta)e 130
Attention: Xxxxxxx Xxxxxx 71034 Boblingen
Attention: Xxxxx Xxxxxx
14.12 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, food, earthquake, or other natural
disaster, war, embargo, riot, or the intervention of any goverment
authority, provided that the Party so delayed immediately notifies the
other Party of such delay.
14.13 The Products purchased by HP from ATL are manufatured for standard
commercial use and are not intended to be sold for use in critical
safety system, nuclear facilities or for use in life support
appliances, devices or systems. The following Schedules are attached
and incorporated into this Agreement by this reference as if fully set
forth herein. Schedules may be added or revised from time to time by
mutual Agreement. Any Schedule that is added or revised shall be signed
by both, ATL and HP, and shall supersede the previous version:
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- Schedule 1 Hardware Products
- Schedule 2 LPO Delivery Standard
- Schedule 3 Price
- Schedule 4 Warranty/Support/Further Development
- Schedule 5 Quality Management
- Schedule 6 Product Marketing and Sales
Place: Anaheim, CA, USA Boeblingen
-----------------------------
Date: Jan 16, 1996 Date: 22/12/95
----------------------------- ----------------------
For ATL: For HP:
/s/Xxxxx Xxxx /s/Xxxxxxxx Xxxxxxxxxx
---------------------------------- ---------------------------
Name Xxxxxxxx Xxxxxxxxxx
President
---------------------------------- ---------------------------
Function LPO Manager
ATL Products, Inc.
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SCHEDULE 1
SPECIFICATION OF THE HARDWARE
At the moment: ATL 4/52 DLT LIBRARY
Enclosure consisting of 2 pages (Datasheet)
Other products may be added from time to time by mutual agreement.
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SCHEDULE 2
LPO DELIVERY STANDARD
1. Scope
Any delivery of goods and performance of services shall be governed solely by
the above Agreement and this Delivery Standard. Any terms and conditions other
than or contrary to the terms and conditions specified herein shall be valid
only if expressively marked as a "counteroffer" and if accepted by both
Hewlett-Packard GmbH and ATL in writing; this clause can only be waived in the
form of a written agreement signed by both Parties. HP reserves the right to
reject the goods and services at ATL's expense if material terms and conditions
of this standard are not adhered to.
2. PURCHASE ORDERS / DELIVERY DATES / COST OF DELIVERY
2.1 PURCHASE ORDERS
Purchase orders by HP shall be issued on purchase order forms, specifying
quantity, order number, delivery date, HP product number and product
description, ATL model number, shipping and ship to instructions and unit price.
ATL shall confirm receipt of the purchase order within three (3) days following
receipt of the purchase order form.
Any orders placed orally, via telephone or via telex facsimile shall require
written confirmation by HP, e.g. through an order marked "For confirmation
only". Atl shall undertake to ensure that such confirmation does not result in
duplicate deliveries. HP shall be entitled to return any duplicate deliveries at
ATL's expense and risk.
2.2 DELIVERY DATES
All delivery dates shall be binding. If ordered products are not supplied by the
agreed date, plus 5 days and HP is charged by the customer, HP shall be entitled
by default to claim delay damages amounting to 3% of the order - notwithstanding
claims for further compensation for delayed delivery and the right to rescind
the contract, unless the delays is due to reasons attributable to HP.
Deliveries shall be made on time at forwarder location in the U.K.
ATL undertakes to promptly notify HP of any circumstances that may have a
detrimental effect on the agreed delivery of the order.
LPO Delivery Standard
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2.3 COST OF DELIVERY
Unless otherwise agreed, all Products are shipped and sold FCA, U.K. (Incoterms
1990)
3. DELIVERY
3.1 INCOMING GOODS LOCATION
Unless otherwise specified by HP, deliveries shall be made to the on the
Purchase Order remarked incoming goods location. ATL shall make all arrangements
for shipment with the forwarder stated on HP's purchase order. ATL shall pay all
shipping and transportation charges directly to the forwarder. ATL reserves the
right to select the means and method of shipment in the event HP does not inform
ATL of the arrangements for shipment within twenty four hours after ATL has
informed HP that the Product is ready to shipment.
3.2 DELIVERY QUANTITY
The quantity actually delivered and relevant for invoicing shall be governed by
the quantity and quality of the Products as determined and verified by incoming
inspection at the specified delivery address.
3.3 PASSING OF RISKS
All Products are sold and shipped FCA, U.K., in accordance with Incoterms 1990.
3.4 DELIVERY PERIOD
For purchase orders received by ATL during the first six (6) months, delivery
for up to five (5) units per month shall be within twenty-five (25) working
days. After the first six months the delivery period for up to 5 (five) units
shall be 40 (fourty) working days. Subsequent quantities and deliveries shall be
mutually agreed. Delivery period is the time difference between when ATL
receives the purchase order from HP and when the Product is ready for pick up by
HP or HP's forwarder in the U.K.
At the beginning of each calendar month, HP shall issue a rolling three (3)
month non-binding forecast.
HP's non-binding forecast is for information only and does not create any
liability between the parties.
ATL shall promptly notify the responsible HP purchasing agent of any delays in
delivery.
4. INSTALMENT DELIVERIES
Instalment deliveries shall be permissible only if agreed by the responsible HP
purchasing agent and shall be marked as such on the delivery note.
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5. DELIVERY NOTE
The delivery note shall provide the following information:
- Atl's name and address
- delivery note number
- correct delivery address (see above)
- delivery note item number
- description
- delivery quantity
- unit of measurement
- HP product number
- HP order number
- HP reference order number
Product deliveries without a delivery note shall not be accepted. The delivery
note shall be supplied at the same time as the products. The delivery note shall
not be contained in the cargo unit or inside of a package! The delivery note
shall be either prominently displayed in an easily removable envelope attached
to the outside of the cargo unit or handed to the responsible Incoming Goods
agent at delivery time.
6. INVOICING
The invoice shall provide the following information:
- HP order number
- HP product number
- HP reference order number
- Atl number
- description
- price (list price; discounts and sales/value-added tax are to be
specified separately)
Unless otherwise agreed upon, invoices shall be addressed to:
HEWLETT-PACKARD GMBH
LIEFERANTENBUCHHALTUNG
BUILDING 1
XXXXXXXXXXXXXXX. 000
00000 XXXXXXXXX
XXXXXXX
This address should always be specified in order to avoid delays in payment.
7. LABELING OF ITEMS
The designations of items specified in the delivery note and in the invoice
shall be the same as the designations of items (HP order items) in the HP order
form.
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8. PACKAGING SPECIFICATION
Each delivered product shall be clearly marked with the applicable HP product
number plus HP order number in both human-readable and barcode form (Standard
3/9 with barcode identifier). A single separately packaged product shall be
delivered for each HP product number; i.e., multiple HP product numbers shall
not be supplied in a single package. The delivered products shall be marked such
that they can be identified without opening or removing protective packaging.
9. PACKAGING MATERIALS
As a matter of principle, packaging shall be limited to a degree sufficient for
safe storage, transportation and handling and compliant to insurance
stipulations. In accordance with applicable legal regulations (particularly
packaging-related legislation such as Germany's VerpackVO), the accumulation of
non-recyclable packaging waste is to be prevented by using recyclable and
appropriately marked packaging materials.
10. PROVISION OF PRODUCTS, MATERIALS AND OTHER ITEMS
not applicable.
11. DIRECT DELIVERIES
HP reserves the right to have HP customers supplied directly by ATL or through a
shipping agent specified by HP.
11.1 FOR DIRECT DELIVERIES, THE FOLLOWING CHANGES APPLY TO AFOREMENTIONED ITEMS:
RE 2.1 PURCHASE ORDERS:
Purchase orders by HP shall be issued on purchase order forms, specifying HP
order number, customer's order number, desired delivery date, quantity, HP
product number, product description, delivery address, and (if applicable) an HP
shipment commission number.
RE 5. DELIVERY NOTE:
ATL undertakes to forward a copy of the delivery note to HP as proof of delivery
at the time of product dispatch (via fax!), The delivery note shall bear the
following notice: "Versand im Auftrag der Hewlett-Packard GmbH".
RE 8. PACKAGING SPECIFICATIONS:
Each delivery shall be handled on an individual order basis, i.e. each order
shall be delivered in separate packaging.
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11.2 DATA CONFIDENTIALITY
Any customer data provided by HP shall be used by ATL solely for order
processing. ATL undertakes to use such data for the assigned purpose in strict
compliance with BDSG (Data Confidentiality Code), to treat such data as strictly
confidential, not to disclose such information to third parties under any
circumstances, and not to use such data for any purpose other than order
processing.
11.3 DEFECTIVE PRODUCTS / WRONG DELIVERY
If requested by HP, ATL shall remove any defective products or wrong deliveries
from the HP customer site.
11.4 MISCELLANEOUS
In all other aspects, direct deliveries shall be subject to the stipulations set
forth in Items 1 through 10.
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SCHEDULE 3
PRICES
Enclosure consisiting of 1 page.
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Schedule 3 -- Unit Pricing
BASE DISTRIBUTION
MODEL NUMBER DESCRIPTION PRICE PRICE
* ACL4/52 B4000 HPG Automated Tape Library with 52 [ ] [ ]
cartridge capacity and:
* 4 DLT 4000 Tape Drives
* 21 DLT Compact IV Data
Cartridges
* 1 DLT Compact Cleaning Cartridge
* ACL2/52 B4000 HPG Automated Tape Library with 52 [ ] [ ]
cartridge capacity and:
* 2 DLT 4000 Tape Drives
* 14 DLT Compact IV Data
Cartridges
* 1 DLT Compact Cleaning Cartridge
* ACL2/28 B4000 HPG Automated Tape Library with 28 [ ] [ ]
cartridge capacity and:
* 2 DLT 4000 Tape Drives
* 7 DLT Compact IV Data Cartridges
* 1 DLT Compact Cleaning Cartridge
Prices are in United States dollars, FCA Odetics UK office.
* CONFIDENTIAL TREATMENT REQUESTED FOR REDACTED PORTION.
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SCHEDULE 4
SUPPORT, FAILUREFIXING AND FUNCTIONALITY
I. Failurefixing
1. Any failure in the PRODUCTS shall be recorded and verified by HP.
Following verification, HP shall forward the failure report to ATL.
Failure shall be categorized as follows:
A. Serious failure
Failure that result in system crashes (hangs or halts), loss of data,
destruction of data, corruption of data or cases of unreasonable handling
effort for which no "workaround is available (i.e. there is no method
accepted by HP or by the customer for either avoiding the failure or using
the PRODUCTS).
B. Medium failure
Failure as specified under A above, but for which a "workaround" is
available for failure avoidance.
C. Minor failure
Any failure not included in categories A and B above.
2. Any serious failure in the PRODUCTS shall be fixed by ATL.
ATL grants to undertake the following steps immediately:
- to inform senior system specialists in order to have them work on a
problem solution without any delay.
- to inform ATL's management and all world-wide support organizations
that a failure of category A occured and that failure fixing began.
- to report to HP the status of the failure fixing process regularly but
every 48 hours minimum.
- to provide a solution to HP by delivering a failerfixing version of
the PRODUCTS at no charge.
- If ATL is unable to readily reproduce and fix the failure in ATL's own
computer system, ATL shall - at the request of HP or the HP-Customer -
analyze and fix the failure at the customer site.
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3. ATL guarantees with any medium failure to undertake all its best efforts to
fix the failure or provide a workaround solution within a reasonable period
of time taking into consideration the economic aspects of both parties.
4. Any other failure shall be fixed within the scope of PRODUCTS maintenance
as soon as possible.
5. ATL shall update the documentation in accordance with the failure fix.
6. ATL shall ensure that any serious and medium failure shall be fixed for
both the current and the previous operating system release.
7. ATL will maintain a telephone number with a designated knowledgeable
contact to HP to call during normal business hours to report problems and
receive assistance.
II. Functionality
ATL guarantees that the Product shall function on HP series 700 and 800 computer
systems using the operating system release current at any one time and its
predecessor version. ATL shall guarantee the functionality on new operating
system releases within a maximum period of 6 (six) weeks following the shipment
release of the operating system. ATL shall provide HP-equipment at ATL's site to
ensure the functionality/Compatibility of the Products.
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EXHIBIT 5 Quality Management - Preliminary Version
LPO - Continuous Improvement (TQRDCE)
1. OBJECTIVE AND SCOPE
The basic strategy for establishing and maintaining long-term working
relationship is through the establishment and monitoring of mutual performance
expectations and measurements. These performance metrics, constructive feedback
and prompt and corrective actions by the supplier are fundamental to achieving
continuous process improvements.
Following this idea HP and "........" agree to work together to achieve
technology, quality, responsiveness, delivery, cost and environment (TQRDCE)
performance goals outlined in 2. Both parties shall review every 3 - 6 month the
progress made on the stated TQRDCE objectives.
If the supplier fails to meet these agreed objectives, HP so inform, detailing
shortcommings and recommendations for corrective actions noted. If the supplier
is unable to remedy the problem, FIP reserves the right to terminate this
agreement.
1.1 Technology
HP expects from their suppliers, that they take up a leading position in
product-specification/poduct-development regarding technology. In addition HP
expects that the supplier meets new development schedules and that new solutions
are proactively communicated to HP.
1.2 Quality
HP expects from their suppliers to be provided with defect-free products
achieved through superior design, process control and continuous process
improvements. If requested, HP shall be provided with proof of quality.
1.3 Responsiveness
HP expects from their suppliers a consistent and effective service and support,
quick response to all enquiries, verifying failures and notifying problems
(after receipt by the supplier) as soon as detected, timely acknowledgement of
Purchase-Orders-if agreed- and a high flexibility to Purchase-Order changes
(additions, cancellations,...).
1.4 Delivery
The supplier agrees to a firm lead-time regardless of kind of product. This
lead-time includes the transit time. It is a firm commitment to deliver by the
supplier and determined in the LPO
LPO Continuous Improvement (TQRDCE)
Vers. 1.0
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DELIVERY STANDARD. In addition Delivery requirements comprise on-time delivery,
which means the receipt of the goods at the ship-to-location within a window of
five (5) days early and zero days late in regard to the desired due date, and a
timely notification of (potential) delays. If, in the event of late delivery,
expedited transportation is necessary to meet HP customer open orders, the
supplier agrees to pay the full overcosts. Other agreements made in the LPO
DELIVERY STANDARD are likewise part of this performance goal.
1.5 Cost
HP expects from their supplier agrees to be provided with products at the lowest
prices consistent with its expectations in the areas of technology, quality,
responsiveness, delivery and environment. In addition HP expects suppliers to
pursue proactively cost and price reductions thoroughly and effectively.
1.6 Environment
HP expects the suppliers to be aware of their environmental impact and their
responsibility shown e.g. in a practised strategy to protect environment or in
an implementation plan with this as an objective. Any materials that are sold to
HP or are used in/for products sold to HP shall be free of harmfull substances.
The products shall be designed for reuse and/or recycling and shall have a %
reuse/recycled content. Likewise packaging shall be minimized.
2. TQRDCE PERFORMANCE GOALS
2.1 Technology:
2.2 Quality:
2.3 Responsiveness: *reply to inquiries, reminders within 2 working days
*100% flexibility to changes of purchase orders
2.4 Delivery: *order-acknowledgement within 3 wd after receipt to
fax +49 7031 *notification of (potential) delay +
announcement of a new date of delivery
immediately
*100% on time delivery
*partial delivery only if requested
*communication of process changes/problems within
2 wd
2.5 Cost:
2.6 Environment:
LPO Continuous Improvement (TQRDCE)
Vers. 1.0
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SCHEDULE 6 - PRODUCT MARKETING AND SALES
Product Marketing and Sales
MARKETING -- ATL has jointly developed DLT Automated Tape Libraries with Digital
Equipment Corporation, Shrewsbury, Massachusetts. These DLT Automated Tape
Library are more commonly known as ATL's DLT series of Products and Digital's TL
8XX series of products.
ATL and Digital have mutually agreed that in order to develop and penetrate the
market for the DLT Automated Tape Libraries efficiently, ATL has the sole and
exclusive sales and marketing rights to sell the ATL series of DLT Automated
Tape Libraries for applications outside the proprietary Digital Computer
installed bate worldwide and Digital has the sole and exclusive sales and
marketing rights for the Digital series of products on the Digital installed
based worldwide.
SALES - HP hereby represents, warrantrs and agrees that:
a. It is not HP's strategic objective to sell ATL's DLT series of Value
Added Products for installation to the proprietary Digital Computer
installed base. However, HP retains the right to sell Value Added
Product(s) for heterogeneous client server networks that may include
Digital computers.
b. HP shall purchase DLT Automated Tape Libraries in support of the
proprietary Digital Computer installed base from Digital Equipment
Corporation, Storage Products Business Unit, Shrewsbury Massachusetts.
c. HP shall add value to Products by adding mutually agreed Storage
Management Software.
d. HP shall only re-market and sell Value Added Products to End Users or
ATL authorized Resellers or Distributors in accordance with this
Agreement.
e. HP shall not re-market or sell Product to any entity without adding
Storage Management Software.
f. HP shall provide service or assure that a third party Maintenance
Contract is in place for each Value Added Product sold.
g. HP shall only sell Products with the Storage Management Software as
listed below:
Storage Management Manufacturer ATL's Model Number(s)
------------------ ------------ ---------------------
Software
--------
OMINBACK HP ACL4/52
OMNISERVE HP ACL4/52
LAGATO LAAGATO ACL4/52
Other Storage Management Software may be added from time to time by
Mutual Agreement
h. HP shall only sell the Products in g. above in the following geography:
GERMANY
SWITZERLAND
