CONFIDENTIAL TREATMENT REQUESTED FOR
PORTIONS OF THIS DOCUMENT
IBM Production Procurement Agreement
Production Procurement Agreement #0XX000000
This is an Agreement (Agreement), dated as of June 11, 1997, by and between
International Business Machines Corporation (IBM), a New York corporation and
Xxxxxx Electronics Corporation (Supplier), a New York corporation.
Statement of Intent
It is IBM's intention to do business with Suppliers who remain competitive in
providing IBM with leading-edge technology at favorable prices on acceptable
terms and conditions. Accordingly, from time to time, IBM intends to assess
Suppliers' competitiveness in terms of pricing, continuity of supply, quality
improvement, and cost reduction, and to notify Supplier if IBM determines
that the Supplier is not competitive with its fully qualified competitors so
that the Supplier can in its sole discretion remedy the situation.
1. PRODUCT:
In return for the prices paid by IBM under this Agreement, Supplier shall
provide IBM with materials, products, components, documentation, spare parts
and/or related services (Products) according to the terms and conditions of
the Product Specification and Price List (PSPL) which is an Attachment to
this Agreement and the Work Authorizations issued under Section 3.0 below,
(each a "Work Authorization", collectively the "Work Authorizations").
2. TERM AND TERMINATION:
This Agreement shall commence on the date of execution by the parties and
shall continue in full force and effect unless earlier terminated as provided
in this Agreement. Either party may terminate this Agreement for material
breach of the other party upon (CONFIDENTIAL TREATMENT REQUESTED) days
written notice.
3. WORK AUTHORIZATION:
Only a Work Authorization in the form of a purchase order issued by IBM or
its subsidiaries, in either electronic or hard copy form, provides
authorization to the Supplier to perform any work or produce any products
under this Agreement. Only procurement personnel of IBM or its subsidiaries
have the authority to issue Work Authorizations or direct work activity under
the terms and conditions of this Agreement.
4. MOST FAVORED CUSTOMER:
The prices provided by Supplier to IBM under this Agreement should not exceed
those offered to other customers purchasing similar products or services in
like or lesser quantities under similar terms and conditions. If Supplier
offers prices to other customers which are lower than those offered to IBM in
like or lesser quantities during the same time period, then those prices
shall become available to IBM at the time of their availability to that other
customer. IBM and Supplier shall maintain the confidentiality of the prices
provided to IBM.
5. SUPPLIER ACTIONS:
5.1 PRODUCT MODIFICATIONS: No changes of any kind shall be made by Supplier
in the form, fit or function of Products without IBM's prior written
approval, which such approval shall not be unreasonably withheld.
5.2 WITHDRAWAL OF PRODUCTS: Supplier shall notify IBM (CONFIDENTIAL
TREATMENT REQUESTED) prior to Supplier's withdrawal of any Product(s). IBM
will then have (CONFIDENTIAL TREATMENT REQUESTED) to place orders and
Supplier shall deliver such Product(s) before the withdrawal date or upon
mutually agreed upon delivery terms.
6. SUPPLIER REPRESENTATIONS/WARRANTIES:
6.1 REPRESENTATIONS AND WARRANTIES: Supplier represents and warrants: (i)
it has the right to enter into this Agreement; (ii) Supplier's performance of
this Agreement will not violate the terms of any license, contract, note or
other obligation to which Supplier is a party or any statute, law, regulation
or ordinance to which Supplier is subject, including, without limitation, all
health, safety and environmental statutes, laws, regulations and ordinances;
(iii) no claim, lien, or action is pending or threatened against Supplier or
its suppliers, subsidiaries, affiliates or parent company which would
interfere with IBM's, its subsidiaries', distributors' or customers' use of
the Products; (iv) the Products do not infringe any patent, trademark,
copyright or other intellectual property rights of a third party; (v) none of
the Products contain nor are any of the Products manufactured using ozone
depleting substances including, without limitation, chlorofluorocarbons,
halons, methyl chloroform and carbon tetrachloride; (vi) each of the Products
at time of delivery to IBM is safe for its intended use, it being understood
that Supplier makes no representation or warranty as to safety of any Product
in the event that such Product is altered in any manner following delivery to
IBM or used by IBM, the end user or any other party for other than its
intended use, and (vii) all Products provided to IBM under this Agreement are
new and do not contain anything used or reconditioned.
6.2 PRODUCT WARRANTY: The Supplier warrants that all Products provided to
IBM are free from defects in design (except for designs provided by IBM),
material and workmanship, and will conform to all of Supplier's Product
representations, the representations in Section 6.1 and agreed-upon Product
specifications. THE WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR USE.
7. INTELLECTUAL PROPERTY RIGHTS AND INDEMNIFICATION:
Supplier shall own or have all rights and licenses under all U.S. and foreign
copyrights and patents applicable to the Products, and Supplier grants IBM
all rights and licenses necessary for IBM and its subsidiaries to exercise
its right under this Agreement. Supplier agrees to defend, hold harmless,
and indemnify IBM from and against any claim that Supplier's Product
infringes any intellectual property rights or any claim arising from the
failure of Supplier to comply with its warranties under Section (6.1). If
such a claim of infringement is made the Supplier shall use commercially
reasonable efforts to obtain for IBM the right to continue to use and market
the Supplier's Product or replace it with noninfringing product.
8. TRADEMARKS AND TRADE NAMES:
Neither party may use any of the other party's or its subsidiaries'
trademarks, trade names or brand names without the other party's written
consent.
9. GENERAL:
9.1 CONFIDENTIALITY: IBM and Supplier agree that the pricing terms of this
Agreement are confidential. All other exchanges of information between the
parties pursuant to this Agreement shall be deemed nonconfidential, unless
the parties have entered into a separate written confidentiality agreement.
9.2 NO AGENT: Supplier is an independent contractor and is not an agent of
IBM for any purpose whatsoever. Each party is solely responsible for the
acts of its employees and agents, including any negligent acts.
9.3 CHOICE OF LAW, WAIVER OF JURY TRIAL: This Agreement shall be governed
by the laws of New York, without regard to any principles of conflicts of
laws. The parties expressly waive any right they may have to a jury trial
regarding disputes related to this Agreement.
9.4 FORCE MAJEURE: Neither IBM nor Supplier shall be in default or liable
for any delay or failure of compliance with this Agreement due to an act of
nature (e.g., flood, fire, explosion, breakdown of plant, casualty and
accident), strikes, lockouts, labor disputes, public enemy (e.g., war,
revolution and civil commotion), government action (e.g., injunction, law,
order, proclamation, regulation, ordinance, demand or requirement of any
government or of any subdivision, authority or representative of any such
government) or freight embargo (e.g., any blockage or embargo of financial
transactions, commerce, trade, transportation and the like) beyond the
control of the defaulting party and the defaulting party shall provide the
nondefaulting party immediate notice of any such anticipated delay or failure
of compliance; provided, however, that any such act shall not relieve the
defaulting party's obligations hereunder and such party hereby agrees to
perform its obligations as soon as practicable after the conditions causing
such delay or failure have subsided.
9.5 ASSIGNMENT: IBM and Supplier shall not assign their rights or delegate
or subcontract their duties under this Agreement without the prior written
consent of the other party.
9.6 RIGHTS OF SUBSIDIARIES: IBM and its subsidiaries may exercise any of
the rights of IBM under this Agreement.
9.7 SURVIVAL: The provisions set forth in Sections (CONFIDENTIAL TREATMENT
REQUESTED) shall survive and continue after any expiration, termination or
cancellation of this Agreement and shall remain in effect until fulfilled,
and apply to respective successors and assigns.
9.8 WAIVER: In order for a waiver to be effective under this Agreement, it
must be in writing signed by the party so waiving its rights. The waiver by
either party of any instance of the other party's noncompliance with any
obligation or responsibility herein shall not be deemed a waiver of
subsequent instances or of either party's remedies for such noncompliance.
9.9 ENTIRE AGREEMENT AND ORDER OF PRECEDENCE: This Agreement which
incorporates the attached PSPL, together with Work Authorizations issued
hereunder, constitute the entire Agreement between the parties with respect
to the subject matter hereof. In the event of any conflict in these various
documents, the order of precedence will be: (i) the quantity, price, payment
and delivery terms of a Work Authorization; (ii) the PSPL; (iii) this
Agreement; and (iv) the remaining terms of the Work Authorization.
9.10 AMENDMENTS: This Agreement may only be amended in writing signed by
authorized representatives of each of the parties. To be effective, such
amendment must specifically reference this Agreement.
ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS MACHINES XXXXXX ELECTRONICS
CORPORATION CORPORATION
By:
Name: (CONFIDENTIAL TREATMENT REQUESTED)
Title: (CONFIDENTIAL TREATMENT REQUESTED)
Date:
Product Specification and Price List Attachment #001
To Production Procurement Agreement #0XX000000
This Product Specification & Price List Attachment #001 (Attachment)
incorporated under Agreement #0XX000000 ("Agreement") is entered into by and
between Xxxxxx Electronics Corporation ("Xxxxxx") and International Business
Machines Corporation (IBM). The term of this Attachment shall be effective
from July 30, 1997. (Attachment - Term).
1. PRODUCT DESCRIPTION
The Product is a computer headset and plug converter which consists of
headband, speaker, boom mounted microphone, cord with inline active noise
cancellation electronics, cord jacks, miscellaneous peripheral devices and
documentation for use with computer products which include but are not
limited to hand held, mobile and desktop personal computers, lower form
personal computers and personal computer peripherals and components, and
application software and operating systems. The Product part numbers are set
forth in Subsection 3.1. The Product is further described by the
requirements set forth in the following specifications which are incorporated
herein by reference:
(CONFIDENTIAL TREATMENT REQUESTED)
2. PRODUCT REQUIREMENTS
2.1 PRODUCT WARRANTIES: Notwithstanding anything to the contrary, Supplier
represents and warrants that at all times: (i) for a period of (CONFIDENTIAL
TREATMENT REQUESTED), the Products shall operate (a) in accordance with all
specifications and requirements in this Attachment, (b) in accordance with
IBM's intended use of the Products, and (c) in or with IBM's products
(including but not limited to system units, peripherals, application software
and operating systems). Those Products that do not conform to this or any
other Product warranties shall, at IBM's option, be repaired or replaced (or
the purchased price paid shall be credited or refunded) by Supplier within
(CONFIDENTIAL TREATMENT REQUESTED) of IBM's notification to Supplier, and
Supplier agrees to reimburse IBM for all costs associated with such repair or
replacement of Products; (ii) for Products that have a defect rate of
(CONFIDENTIAL TREATMENT REQUESTED) of total Products purchased (Epidemic
Defect Rate), Supplier shall, at IBM's option and within (CONFIDENTIAL
TREATMENT REQUESTED) of IBM's notification to Supplier, repair or replace all
Products (or, if IBM elects, the purchase price paid shall be credited or
refunded) and Supplier shall, at IBM's option, reimburse IBM for all costs
associated with such repair or replacement of products of IBM, IBM
subsidiaries, and its and their distributors and end users; (iii) Supplier
shall, at IBM's option and within (CONFIDENTIAL TREATMENT REQUESTED) of IBM's
notification to Supplier, repair or replace Products (or the purchase price
paid shall be credited or refunded) that are part of products that IBM, in
its discretion, has recalled or provided other corrective actions for safety
reasons associated with the Products, and Supplier shall, at IBM's option,
reimburse IBM for all costs associated with such repair or replacement of
Products of IBM, IBM subsidiaries, and its and their distributors and end
users.
2.2 PRODUCT FIELD SUPPORT: In addition to the Product warranties, Supplier,
at (CONFIDENTIAL TREATMENT REQUESTED) expense, shall provide all end user
support and inquiries in support of the Product during the end user's
warranty period of (CONFIDENTIAL TREATMENT REQUESTED); support IBM, its
subsidiaries, distributors and all end user telephone calls regarding the
Product by providing a published telephone number in each major geography and
key countries to include North America, Europe, Latin America and Asia
Pacific at a minimum of (CONFIDENTIAL TREATMENT REQUESTED) hours per day.
With regards to Latin America, Supplier agrees to provide to IBM its schedule
for implementation in Latin America, to be agreed to by the parties. Such
information shall be included on the warranty documentation with the Product.
In addition, Xxxxxx shall:
1) support IBM regarding the determination of whether there is a
defect (patent or latent), error or other problem ("Defects") with
the Product; and
2) isolate and promptly correct all Defects with the Products, and
provide such corrections to IBM in accordance with the parameters
set forth below (these parameters are "time of the essence").
IBM shall notify Supplier to obtain a Return Material Authorization ("RMA")
number prior to returning Products for non-conformance, which RMA Supplier
agrees to promptly issue upon request. IBM shall furnish the following
information with Products returned to Supplier: a) IBM's complete address,
b) name and telephone numbers of IBM's employee to contact in case of
questions about the Product, c) a complete list of Products returned, (d) the
nature of the defect or failure if known, and e) whether or not returned
Products are in warranty.
2.3 PRODUCT CERTIFICATIONS: REQUIRED PRODUCT CERTIFICATIONS:
CE Xxxx
Xxxxx Point/Dot
2.4 COO PRODUCT CERTIFICATION: Supplier hereby certifies that the Products
purchased hereunder have the following country(ies) of origin. If there are
any changes to this information, Supplier will notify IBM by providing a new
country of origin certification signed by an authorized Suppliers'
representative before shipping any Products other than those with the country
of origin listed below for such Product. Supplier acknowledges that IBM will
rely upon this certification, and timely updates to it, in making
representations to IBM customers and to comply with various laws and
regulations. If any part number listed has more than one country of origin,
Supplier certifies that each country of origin is listed below, and Supplier
agrees to deliver to IBM instructions regarding how IBM can distinguish each
country of origin for part numbers with more than one country of origin.
IS
PRODUCT MARKED WITH AN
IBM ASSIGNED PRODUCT COUNTRY OF ORIGIN & COMPLETE INDUSTRY
STANDARD 4L BARCODE
KIT PART NUMBER DESCRIPTION STREET ADDRESS
(Y/N)
(CONFIDENTIAL TREATMENT REQUESTED)
The country of origin street address for the above part numbers is as
follows:
(CONFIDENTIAL TREATMENT REQUESTED)
2.5 COMPATIBILITY REQUIREMENTS: The Products shall be compatible with IBM
Products and Supplier agrees to enhance or correct and test Products to
ensure such compatibility.
2.6 TRANSLATIONS: The Product publications and warranty information shall
be provided in a multilingual format to include at a minimum English, French,
German, Italian and Spanish.
2.7 FIELD REPLACEMENT UNITS: During the term of this Agreement and for a
period of (CONFIDENTIAL TREATMENT REQUESTED) thereafter, for each Product
ordered by IBM under this Agreement Xxxxxx shall maintain the capability to
supply Field Replacement Units ("FRUs") packaged to IBM's specifications and
at Andrea's expense in volumes (based on Andrea's quality performance) to be
agreed to from time to time between the parties. The initial quantity of
FRUs shall be (CONFIDENTIAL TREATMENT REQUESTED) of the units estimated to be
delivered during the first year of this Agreement.
3. PRICING
3.1 PRODUCT PRICING: Supplier shall make the Product available to IBM at
the pricing specified in Exhibit 1, "Product Prices", attached hereto. The
pricing in Exhibit 1 as expressed in Work Authorizations ("WAs," i.e.,
written or electronic IBM purchase orders or other electronic transactions
that are expressly identified as an authorization to perform work under the
Agreement or this Attachment) shall be the only charges due to the Supplier
from IBM. Supplier warrants that the pricing in Exhibit 1 does not include
sales taxes and that Supplier will not include any sales taxes on any
Products purchased by IBM.
3.2 PAYMENTS: Supplier will invoice IBM upon IBM's receipt of Product at
IBM's facilities. Terms for payment on all invoices will be net
(CONFIDENTIAL TREATMENT REQUESTED) from receipt of an acceptable invoice by
IBM. In the event payment is not received within such period, Supplier will
notify IBM and IBM will make prompt payment of the amount due. Payment of
invoices shall not be deemed acceptance of the Products. All prices are
expressed in USA dollars.
3.3 WORK AUTHORIZATION LOGISTICS
Supplier will deliver Products as specified in WAs. The agreed to lead-time
for IBM to issue WAs prior to delivery shall be (CONFIDENTIAL TREATMENT
REQUESTED). IBM may provide a (CONFIDENTIAL TREATMENT REQUESTED) rolling
estimated forecast for any quantities of Product that may be required.
Supplier agrees to cooperate and use best efforts for cases where IBM
requests a shorter lead-time. Any increase in the agreed to lead time must
have IBM's prior written approval. Any requests to increase lead time by
Supplier must be approved by IBM. Xxxxxx shall use the (CONFIDENTIAL
TREATMENT REQUESTED) rolling estimated forecast for planning purposes for
long leadtime components for Products.
ANY PRODUCT QUANTITIES CITED IN OR IN SUPPORT OF THIS ATTACHMENT ARE
PRELIMINARY ONLY AND SHALL NOT IN ANY WAY BE CONSTRUED AS A COMMITMENT AND
ARE NON-BINDING. IBM MAKES NO REPRESENTATION OR WARRANTY AS TO THE QUANTITY
OF PRODUCTS THAT IT WILL PURCHASE, IF ANY.
4. DELIVERY LOGISTICS
4.1 DELIVERY POINT: All references to delivery as it applies to this
Attachment shall mean delivery to one of the following IBM locations that may
be further specified by IBM in a WA or separate letter: IBM Corporation,
Raleigh, NC, IBM/Lotus Corporation, Cambridge, MA, and IBM Lotus/Corporation,
Dublin, Ireland. The delivery point shall be the IBM locations specified
herein. Prior to shipping the product from its shipping point, Xxxxxx shall
notify the IBM Business Coordinator that the shipment is ready and IBM will
have option to change the shipping mode to air freight at IBM's expense.
4.2 ON-TIME DELIVERY: Products must be delivered no more than (CONFIDENTIAL
TREATMENT REQUESTED) early and (CONFIDENTIAL TREATMENT REQUESTED) late. Time
is of the essence. If Supplier cannot meet a scheduled delivery date,
Suppler shall promptly notify IBM of Andrea's revised delivery date and IBM
may, at its option, without limitation (i) cancel Products not delivered
without charge, (ii) buy elsewhere and charge Supplier any cost differential,
(iii) charge the Supplier for any premium costs (including, without
limitation, shipping and handling costs) incurred as a result of the late
delivery and (iv) exercise all other remedies provided at law, in equity and
in the Agreement (including this Attachment).
4.3 Supplier agrees that the date of manufacture for all Products purchased
by IBM shall be less than (CONFIDENTIAL TREATMENT REQUESTED) from the date of
delivery.
4.4 IBM INVENTORY BALANCE
IBM shall have the right to return any Product to Supplier and shall be
entitled to the greater of (a) a full refund of any monies paid by IBM for
the returned Product less a maximum (CONFIDENTIAL TREATMENT REQUESTED)
handling/restocking charge, or (b) (CONFIDENTIAL TREATMENT REQUESTED) of the
price paid by IBM. In addition, the parties agree to negotiate any payments
due for scrap of parts, components, packaging material and documentation that
was specified or customized for IBM.
5. OEM ACCOUNTS
5.1 During the term of this Attachment, Supplier grants to IBM the right to
disclose to its OEM Accounts information under this Attachment which shall
include but not limited to Product description, pricing, leadtime, order
placement contact, delivery and Product warranty information which will
enable OEMs, at its discretion, to order Product under the terms of
Attachment 1. At no time will any purchase orders from OEMs be construed by
Xxxxxx as a WA from IBM and IBM shall not be liable for any action or
inaction of the OEM who elects to do business with Xxxxxx.
6. MARKETING PROGRAM
6.1 During the term of this Attachment, Xxxxxx agrees with respect to each
Product sold to IBM (i) to include in the package containing such Product
Andrea's marketing and promotional materials which includes flyers, brochures
and coupons, including discount coupons, that describe Xxxxxx products and
accessories ("Marketing Materials") whereby IBM, its subsidiaries,
distributors and end-users may purchase additional Product and various Xxxxxx
products that may be required for certain computer configurations, including
at a minimum a battery adapter for portable computers, other microphones, and
accessories; (ii) to provide to IBM for IBM's prompt review and approval
which shall not be unreasonably withheld all Marketing Materials prior to
including the Marketing Materials as a part of the Product package. Xxxxxx
agrees to make reasonable changes to the Marketing Materials upon IBM
request; (iii) to provide on a worldwide basis fulfillment services for all
Xxxxxx products, such services shall include: publish telephone numbers and
Internet address to accept and fulfill orders; provide shipment and return
capability; perform warranty services; and, provide maintenance and support
as required, and (iv) to confirm that all Xxxxxx products provided under the
marketing program meet any agency or country compliance requirements where
applicable.
6.2 MARKETING ASSISTANCE FROM XXXXXX
During the term of this Attachment and upon IBM's reasonable request, Xxxxxx
will provide to IBM the following marketing assistance:
6.2.1 DEMONSTRATIONS
Xxxxxx shall participate in demonstrations of IBM products at trade shows,
conferences, and sales meetings (up to (CONFIDENTIAL TREATMENT REQUESTED) per
year).
6.2.2 SALES CALLS
Xxxxxx shall participate in executive sales calls with IBM marketing
representatives on IBM's large prospects and major distributors (up to
(CONFIDENTIAL TREATMENT REQUESTED) per year or more).
7. TRADEMARKS
Notwithstanding the provision of Section 8, "Trademarks and Trade Names", of
the Agreement, the parties agree as follows:
7.1 IBM TRADEMARKS
IBM hereby grants to Supplier to use of the IBM Via Voice(Trademark)
trademark in Supplier's marketing and promotional materials.
7.2 USE OF IBM TRADEMARKS
Supplier agrees that the following shall govern the use of IBM's trademark.
Supplier will use the appropriate trademark and trademark symbol (either "TM"
or an R in a circle in a superscript in the United States and as appropriate
under local law elsewhere) and clearly indicate the ownership of the
trademark whenever the trademark is first displayed or mentioned in any
advertisement, brochure, package or in any other manner in connection with
the Products listed herein. The use of the Trademark shall only be in
connection with the marketing of the Products and not with any other goods or
services offered by Supplier and will only be used to make factual
statements. At no time during the term of this Agreement, shall any name or
trademark confusingly similar to IBM's trademark be used. The use of the
trademark will not directly or indirectly create in or for you any right,
title or interest in the trademark. Supplier agrees that the trademark
together with the goodwill of the business symbolized thereby is the sole and
exclusive properties of IBM. The use of Supplier by the trademark inure
solely to the benefit of IBM. Supplier will not take any action to interfere
with, challenge, register or claim any right in the trademark. Andrea's name
or trademarks will not be displayed in a manner that suggests that its name
or trademarks are part or related to the trademark. Supplier may not display
IBM's trademark as prominent or more prominent than its name, trademarks,
trade names or those of any third party. Upon request of IBM, Supplier
agrees to change any promotional, advertising or related materials which IBM
determines to be inaccurate, objectionable, misleading or a misuse of the
trademark.
7.3 SUPPLIER TRADEMARKS
Supplier hereby grants to IBM, its subsidiaries and its and their successors,
assigns, agents and distributors a nonexclusive, royalty-free right and
license to use, in connection with the marketing of the Product, the product
name(s) and trademark(s) used by supplier to identify the Product including
any portions thereof. If Supplier informs IBM in writing that it objects to
IBM's use of its Product names and trademarks, IBM will take reasonable steps
to modify it.
8. COMMUNICATIONS
All communications between the parties shall be carried out through the
designated coordinators.
All procurement, business and administrative communications between the
parties shall be conducted through the following "Business
Coordinators":
(CONFIDENTIAL TREATMENT REQUESTED)
* Technical communications between the parties shall be conducted through
the following "Technical Coordinators".
* All legal notices shall be sent to the following addresses and shall be
deemed received (a) 2 Days after mailing if sent by certified mail,
return receipt requested or (b) on the date confirmation is received if
sent by facsimile transmittal, to the party set forth below:
(CONFIDENTIAL TREATMENT REQUESTED)
Each party may change its designated coordinators and/or addresses any time
during the Attachment-Term by notifying the Business Coordinator (with a
carbon copy to the Technical Coordinator or legal notice coordinator, as
applicable) of the other party in writing.
9 TERMINATION
9.1 TERMINATION FOR CAUSE: Either party may terminate this Attachment for
material breach by the other party or in the event that the other party
becomes insolvent, files, or has filed against it, a petition in bankruptcy
or undergoes a reorganization pursuant to a petition in bankruptcy. Such
termination shall become effective (CONFIDENTIAL TREATMENT REQUESTED) after
receipt of any such notice, unless the party receiving notice remedies the
cause cited in such notice within such (CONFIDENTIAL TREATMENT REQUESTED)
period. In the event Supplier terminates an Attachment as set forth in this
Subsection 9.1, Supplier shall have the right to cancel all outstanding WAs.
In the event IBM terminates an Attachment as set forth in this Subsection
9.1, Supplier shall immediately (a) cease all work and shall treat all
applicable outstanding WAs in accordance with Subsection 9.2 as if all
outstanding WAs were canceled for cause, (b) prepare and submit to IBM an
itemization of all completed and partially completed Products under such WAs,
and at IBM's sole option and only upon IBM's written direction, Supplier
shall deliver to IBM the (i) number of IBM requested completed Products at
the prices set forth in the applicable WA and (ii) IBM requested partially
completed Products at a price to be agreed to by the parties, but in no event
shall such price be greater than the per unit price of the Product, (c) allow
IBM access to Andrea's premises to take possession of all IBM owned property
or to file a security interest in such property, (d) return to IBM all IBM
confidential information or property, if any, and (e) reimburse IBM for all
reasonable costs associated with IBM locating and securing another supplier
of the Product or a product that is a suitable substitute to the Product.
IBM shall also have all other remedies available at law, in equity and in the
Agreement (including this Attachment).
9.1 WORK AUTHORIZATION CANCELLATION: IBM may at any time cancel WAs in
total or in part, for convenience or cause by notifying Supplier, in writing.
Cancellation will be effective immediately upon Andrea's receipt of the
notice. Supplier will immediately cease all work under such WA in accordance
with the cancellation notice. IBM shall have no liability if it cancels WAs
for cause, and IBM shall have the right to return all Products that have not
been used for a full refund. IBM shall also have any other remedies
available at law, equity or in this Agreement. If IBM cancels WA(s) for
convenience, IBM's total and maximum liability, and Andrea's sole and
exclusive remedy, shall be limited to the actual and reasonable costs
substantiated by Supplier within any authorization limits and cancellation
schedules set forth in the Attachment and WA, provided, however, in no event,
shall IBM's liability exceed the total outstanding balance of the canceled
WAs. Supplier shall use all reasonable efforts to mitigate any IBM
liabilities by returning to its suppliers, selling to others, or otherwise
using any applicable materials, parts and subassemblies acquired or produced
by Supplier in connection with the canceled WAs.
All amounts previously paid to Supplier shall be deducted from any amount so
payable to Supplier and if such prior payments exceed the amount payable to
Supplier under the applicable WA, Supplier agrees to refund the difference to
IBM within 30 Days of the effective date of cancellation. The results of all
work paid for by IBM under the applicable WA are the sole property of IBM and
upon cancellation, the disposition of all such IBM property shall be in
accordance with IBM's written instructions.
10 LIMITATION OF LIABILITY
In no event will IBM or its subsidiaries be liable for any lost revenue, lost
profits or consequential, incidental or punitive damages, even if advised of
the possibility of such damages. In no event shall IBM or its subsidiaries
be liable to Supplier (i) under a Work Authorization for an amount greater
than the amount due and unpaid under such Work Authorization, and (ii) under
the Agreement (including this Attachment) for an amount greater than the
amount due and unpaid under all outstanding Work Authorizations hereunder, as
applicable.
11 SEVERABILITY
If any Section or Subsection of the Agreement, including this Attachment, is
found by competent judicial authority to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of any such Section
or Subsection in every other respect and the remainder of this Agreement
shall continue in effect.
12 NO PUBLICITY
Supplier may reference the fact that IBM is a customer of the Supplier. The
Supplier agrees not to disclose the specific terms of the Agreement
(including this Attachment), except as may be required by law or government
regulation.
13 SURVIVAL
The rights and obligations of Sections and Subsections 2.1, 2.2, 2.6, 7.0,
8.0, 10.0, 11.0 and 13.0 of this Attachment shall survive and continue after
termination or expiration of this Attachment and shall remain in full force
and effect, and shall bind the parties and their legal representatives,
successors, heirs and assigns. The rights and obligations of this entire
Attachment as they apply to WAs that are not terminated or canceled shall
survive and continue after expiration of this Attachment and shall bind the
parties and their legal representatives, successors, heirs and assigns until
expiration or cancellation of such WAs.
14 ORDER OF PRECEDENCE
In accordance with Subsection 9.9, "Entire Agreement and Order of Precedence"
of the Agreement, any terms in any Supplier documents such as
acknowledgements, shipping instructions or other Supplier forms shall be void
and of no effect.
15 COUNTERPARTS
This Attachment may be assigned in one or more counterparts, each of which
shall be deemed to be an original and all of which when taken together shall
constitute the same agreement. Any signed copy of this Attachment may by
reliable means (e.g., photocopy or facsimile) is considered an original.
THIS ATTACHMENT, WAs ISSUED HEREUNDER, THE AGREEMENT THAT THIS ATTACHMENT IS
ISSUED UNDER, AND THE CONFIDENTIALITY AGREEMENT (IF ANY) CONSTITUTE THE
ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ALL COMMUNICATIONS AND UNDERSTANDINGS BETWEEN THE
PARTIES, WHETHER WRITTEN OR ORAL, WITH RESPECT TO THE SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Attachment to be
signed by their respective duly authorized representatives.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS MACHINES XXXXXX XXXXXX ELECTRONICS CORPORATION
ELECTRONICS CORPORATION
CORPORATION
Authorized Signature: Date Authorized Signature
Date
(CONFIDENTIAL TREATMENT REQUESTED)
Printed Name Printed Name
(CONFIDENTIAL TREATMENT REQUESTED)
Title: Title:
ATTACHMENT 1
PRODUCT PRICES
PRODUCT DESCRIPTION FOB:
(CONFIDENTIAL TREATMENT REQUESTED)
For (CONFIDENTIAL TREATMENT REQUESTED) from contract signing by the parties,
(CONFIDENTIAL TREATMENT REQUESTED).
(CONFIDENTIAL TREATMENT REQUESTED)
